Is speech on the Internet entitled to as much protection as speech in more traditional media?
Yes, the U.S. Supreme Court ruled in Reno v. ACLU (1997) that speech on the Internet receives the highest level of First Amendment protection. The Supreme Court explained that “our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.”
Does it matter whether a student creates his cyberspeech at school?
Yes, it does. If the student uses school computers to create his material, school officials have jurisdiction and more legal authority to regulate the expression. School officials would likely argue that they could censor such expression as long as they had a reasonable educational reason for doing so under the Supreme Court’s 1988 ruling in Hazelwood School District v. Kuhlmeier. Also, when students use school computers, they are subject to the school’s acceptable-use Internet policy. Most schools have policies that set limits on students’ Internet usage.
If a student creates his material at home, how can school officials possibly regulate it?
Good question. The courts are not uniform in how they analyze such cases. This question raises the threshold issue of whether the material is considered on-campus or off-campus speech. The Pennsylvania Supreme Court wrote in its 2000 ruling in J.S. v. Bethlehem Area School District: “We hold that where speech that is aimed at a specific school and/or its personnel is brought onto the school campus or accessed at school by its originator, the speech will be considered on-campus speech.”
It would be difficult for school officials to justify regulating material a student creates at home and does not bring to school. However, if a student creates a Web site at home using his own computer but brings the material to school, then school officials could likely regulate it under the “substantial disruption” standard from the Supreme Court’s 1969 decision Tinker v. Des Moines Independent Community School District. This means that the material would be treated akin to an underground student newspaper school officials could regulate it if they could reasonably forecast that it would cause a substantial disruption or material interference with school activities. What is not clear is a situation where a student creates the material at home and never brings it to school, but other students bring it to school and freely distribute it. No case has explained this situation with any detail.
Students also should be aware that there are consequences to posting certain material even on their personal Web sites. If a student posts true threats online, the school may contact the appropriate authorities. If a student posts libelous material, he may be sued for defamation in court. For example, several teachers in Indiana sued a student in 1999 after he posted allegedly false information that harmed the teachers’ reputations.
Can school officials restrict online expression because it contains offensive language?
They cannot under the Tinker standard. One federal district court judge in 1998 wrote in his opinion: “Disliking or being upset by the content of a student’s speech is not an acceptable justification for limiting student speech under Tinker.” At least one court has applied the Fraser standard to student Internet speech that is considered on-campus expression. Under the Supreme Court’s 1986 decision Bethel School District No. 403 v. Fraser, school officials have the authority to regulate on-campus student speech that is vulgar, lewd or plainly offensive. Most courts, so far, have stated that school officials cannot satisfy the Constitution by banning expression simply because they find it offensive.