48 Drake L. Rev. 587, *
Copyright (c) 2000
Drake University
Drake Law Review
2000
48 Drake L. Rev. 587
BEYOND THE SCHOOLHOUSE GATES: DO STUDENTS SHED THEIR CONSTITUTIONAL RIGHTS WHEN
COMMUNICATING TO A CYBER-AUDIENCE?
Jennifer Kathleen Swartz
[*587]
Society not only continues to exist by transmission, by communication, but it
may fairly be said to exist in transmission, in communication. There is more
than a verbal tie between the words common, community, and communication. 1
[*588]
I. Introduction
In 1916, John Dewey wrote about the important connection between learning in
school and the community in which children are raised. 2
Dewey believed "the absence of a social environment in connection with
which learning is a need and a reward is the chief reason for the isolation of the
school; and this isolation renders school knowledge inapplicable to life and so
infertile in character." 3
To Dewey the common connection between the school and the community existed in
communication, and this connection was necessary for schools to succeed. 4
Today, instead of the book or letter which acted as the communicative device
that connected the school to the community in Dewey's time, 5
schools have become part of a common global community linked to millions
through the Internet.
When students have access to the Internet, they have the
ability to communicate with an extended community much larger than the
individuals that comprise their local school and hometown. The Internet
is a truly global communication and information highway that is constantly
growing and influencing all members of society. With this cyber-world of
communicative opportunity comes questions about the scope of school control
over student speech disseminated over this increasingly vast and limitless
medium. Previous Supreme Court jurisprudence fails to provide an adequate
standard that protects students' First Amendment rights while
providing schools with the ability to reasonably oversee potentially harmful or
offensive speech distributed by students through the Internet.
Part II of this Note begins with an overview of the communication capabilities
of the Internet and the use of the Internet
in schools. Part III examines Supreme Court jurisprudence relating to student
speech in public education and state freedom of expression statutes and their
impact on school control of student expression. Part IV applies the relevant
Supreme Court jurisprudence to student expression on the Internet,
analyzes the inadequacy of current law, and develops the necessary components
of a new standard which should be applied to student online expression.
[*589]
II. Technology Access in Schools: An Overview
A. Computer Use in Education
The Soviet launch of Sputnik in 1957 sparked national educational reform
efforts aimed at preparing students for the future information age. 6
As computer technology advanced, computer-assisted instruction and use of
computers as tools in the learning process created a means for manipulating
information to better facilitate the learning process. 7
Currently, the Internet has the power to become the
infrastructure that connects educational centers, libraries, and information
centers all over the world. 8
B. The Internet and Cyberspace
The Internet is a communication and information network that
allows people anywhere in the world to communicate and share information. 9
The Internet is generally described as being located in
cyberspace because of the lack of any physical or geographical location. 10
The Internet encompasses a broad range of communicative modes
which are continually developing and broadening including the World Wide Web
(Web), 11
e-mail, 12
mailing lists or listservs, 13
[*590] newsgroups, 14
chatrooms, 15
telephony services, 16
and audio and video broadcasting. 17
Electronic commerce is becoming an increasingly important economic activity as
consumers often seek information about goods and services and make purchases
online. 18
With the Internet's increasing development as a primary means
of communication in society, schools are using the Internet to
provide a communication link between the students and the community.
C. Internet Access in Schools
Governmental initiatives have encouraged schools to provide Internet
access for students. 19
For example, one of President Clinton's educational goals was to have all
kindergarten through twelfth grade classrooms online by the year [*591] 2000. 20
To help accomplish this task, the Telecommunications Act of 1996 21
provided for the Federal Communication Commission's development of the
education rate (e-rate). 22
The e-rate is part of universal service, a funding program aimed at providing
phone service to low income individuals, and is designed to decrease schools' Internet
connection costs. 23
Discounts range from 20% to 90%, depending on the economic need of the students
in the district. 24
The percentage of public schools with Internet access has
risen dramatically in recent years. 25
In 1994, 35% of schools were connected to the Internet. 26
In 1997, 78% of schools were connected. 27
By 1998, this number rose to 89%. 28
Additionally, 51% of all instructional rooms in public schools were connected
to the Internet, nearly doubling the 27% which were connected
in 1997. 29
By 2000, 95% of all schools should be connected. 30
School connection to the Internet provides students with a
connection to a powerful communication tool in which student speech can be
distributed in almost any conceivable manner. For example, students and
teachers can have free Web-based e-mail services, 31
publish electronic versions of school newspapers, 32
or create their own Web pages using software that makes Web-document creation
easy for [*592] inexperienced users. 33
The Web page can then be hosted on the school's domain. 34
III. School Regulation and Control over Student Speech
A. Educational Goals
In Democracy and Education, Dewey wrote that two criteria measure the worth of
the educational process in a democratic society: "the extent in which the
interests of a group are shared by all its members, and the fullness and
freedom with which it interacts with other groups." 35
Dewey's first criterion was recognized by the Supreme Court in Ambach v.
Norwick 36
when the Court stated an aim of public education is to "inculcat[e]
fundamental values necessary to the maintenance of a democratic political
system . . . ." 37
The Internet can be used to give value to Dewey's first
criterion because it gives students the ability to access large amounts of
shared information accessible to other members of society. Students can be
linked to NASA, 38
visit the Library of Congress, 39
even the National Library of China, 40
or research African-American history. 41
If a student ran a simple Internet search using the term
"John Dewey," 42
the student could access The Center for Dewey Studies, 43
take a tour of John Dewey High School [*593]
in Brooklyn, New York, 44
join a discussion group about Dewey, 45
or read the full text of his book Democracy and Education. 46
Dewey's second criterion-the fullness and freedom to which groups interact-was
recognized by the Court when it stated that students do not "shed their
constitutional rights to freedom of speech or expression at the schoolhouse
gate." 47
The Internet places a cyber-world of opportunity at students'
fingertips; however, the worth of Dewey's second criterion can only be attained
if students can fully and freely interact with other members of society
accessible through the Internet.
B. Supreme Court Decisions
Three Supreme Court decisions have outlined the standard for school control of
student speech. The Court has addressed student expression in schools in three
contexts: what students are allowed to wear to school as a form of expression, 48
what students may say during school assemblies, 49
and what editorial control schools may exercise over student newspaper
articles. 50
Together, these cases provide the Supreme Court's standard for school control
of student expression.
1. Black Armbands
In Tinker v. Des Moines Independent Community School District, 51
three students were expelled for violating a school policy when they wore black
armbands to school to show their disapproval of the Vietnam War. 52
The school had not prohibited students from wearing other political or
controversial symbols. 53
Furthermore, the students' actions had not created a disruption or interfered
with the rights of other students. 54
The Court stated an "undifferentiated fear or apprehension of disturbance
is not enough to overcome [*594] the
right to freedom of expression," 55
and in this case "the action of the school authorities appear[ed] to have
been based upon an urgent wish to avoid the controversy which might [have]
result[ed] from the expression . . . ." 56
The Court held students have a constitutional right to freedom of expression in
schools; however, "conduct by the student, in class or out of it, which
for any reason-whether it stems from time, place, or type of
behavior-materially disrupts classwork or involves substantial disorder or
invasion of the rights of others is . . . not immunized by the constitutional
guarantee of freedom of speech." 57
2. Assembly Speeches
In Bethel School District No. 403 v. Fraser, 58
a high school student gave a speech during a school-wide assembly that
contained sexually-oriented references while promoting a candidate in a student
government election. 59
The student was punished under the school's disciplinary code. 60
The Court rearticulated its statement from Ambach 61
that an objective of schools is the "'inculcat[ion of] fundamental
values'" 62
and added that these fundamental values include the "tolerance of
divergent political and religious views" while taking into account the
"sensibilities of others, and, in the case of a school, the sensibilities
of fellow students." 63
Thus, the Court reasoned the school district [*595]
may prohibit sexually explicit, vulgar, and lewd speech in school discourse. 64
Justice Brennan concurred in the decision, noting that the school could not
have punished the student had the student given the same speech outside the
school. 65
3. School Newspapers
In Hazelwood School District v. Kuhlmeier, 66
a high school principal deleted two pages of the high school newspaper
containing stories about teen pregnancy and parental divorce. 67
The newspaper was part of the school's journalism curriculum and was governed
by school policy. 68
The Court first distinguished the school newspaper from the armbands worn by
the students in Tinker: Tinker applied to the school's tolerance of student
speech, while the issue in Hazelwood pertained to the school's affirmative
promotion of student speech in a publication distributed as part of the
school's curriculum. 69
The Court focused on the newspaper's educational mission and held the school,
as the publisher of student speech, may "exercis[e] editorial control over
the style and content of student speech in school-sponsored expressive
activities so long as their actions are reasonably related to legitimate
pedagogical concerns." 70
4. The Supreme Court's Standard for School Control of Student Expression
Tinker, Bethel, and Hazelwood create the standard for school control of student
expression. First, Tinker applies to student conduct that is expressive
activity whether the activity is class-related or outside the scope of the
curriculum: students who express themselves through conduct that does not
materially disrupt classwork, create substantial disorder, or invade the rights
of others cannot be punished. 71
Second, when the school promotes speech in school-sponsored activities, through
publications such as the school newspaper or through assembly speeches like
that in Bethel, the Hazelwood standard applies: the school may exercise control
over the expressive activities as long as it is reasonably related to the
school's educational mission. 72
[*596]
C. State Freedom of Expression Statutes
Several states have adopted student freedom of expression statutes. 73
Generally, these statutes give students the ability to exercise free
speech in school activities with certain specific limitations. 74
For example, the Iowa statute prohibits students from expressing, publishing,
or distributing obscene, libelous, or slanderous materials, and materials that
encourage students to commit unlawful acts, violate lawful school regulations,
or cause material and substantial disruption. 75
The statute prohibits prior restraint except when the material specifically
violates a named prohibition, 76
and disclaims the student's expression as being an expression of school policy.
77
For student expression in official school publications, 78
student editors are given the responsibility of assigning and editing the
publication, and a journalism advisor supervises the student staff. 79
The school board has the ability to adopt a written publications code that
outlines the time, place, and manner provisions for written publications. 80
The Massachusetts student freedom of expression statute allows for even broader
freedom of expression rights: "The right of students to freedom of
expression . . . shall not be abridged, provided that such right shall not
cause any disruption or disorder within the school." 81
The statute, which was enacted before the Bethel and Hazelwood decisions, has
been held to allow students to "'engage in non- school-sponsored
expression that may reasonably be considered vulgar, but causes no disruption
or disorder.'" 82
Thus, the state statute provides the students with more protection than the
Supreme Court's decisions.
[*597]
The state freedom of expression code provisions provide students with clear
guidelines of acceptable behavior and put publication decision-making in the
hands of student editors and journalism advisors, while disallowing
administrative prior restraint unless the material violates the code section. 83
These code sections are easily applied to traditional student speech and
student publications; however, their application to student expression on the Internet
is unclear because of the unique way in which information is transmitted.
IV. Supreme Court Jurisprudence and Its Application to Student Speech on the Internet
A. Applying the Tinker, Bethel, and Hazelwood Standards to Student Expression
on the Internet
The Tinker standard-schools may not punish students who express themselves
through conduct that does not materially disrupt classwork, create substantial
disorder, or invade the rights of others-applies to both class-related
expression and expression that takes place in the school but is outside the
scope of the curriculum, thus allowing schools to punish expression that
disrupts classwork or invades the rights of other students. 84
The Hazelwood standard-the school may exercise control over expressive
activities as long as it is reasonably related to the school's educational
mission-and the Bethel standard-the school district may prohibit sexually
explicit, vulgar, and lewd speech in school discourse-apply when the school
promotes speech in school-sponsored activities. 85
The question becomes, under these standards, to what extent may schools exert
control over student expression on the Internet? To examine
this question more fully, two hypothetical situations illustrate circumstances
in which the standards provide assistance for determining the level at which
schools may exert control over student speech.
First, imagine a situation in which a student uses the school's e-mail account
system during a computer-related class to send e-mail messages describing a
graphic account of a murder to many students in the school. The receipt of the
messages upsets many of the recipients and causes a disruption. Under the
Tinker standard, the school could discipline the student as long as the
student's conduct reached the "substantial disorder" threshold. 86
[*598]
Imagine a second hypothetical situation in which a journalism class-or any
other class-decides to communicate via e-mail to student pen-pals in a distant
school for a class project. This type of situation would fall under the
Hazelwood standard because the school is promoting the speech in coursework
related to the school's educational mission. Therefore, the school could
exercise editorial control over the students' speech, for example, by allowing
the teacher to read all the e-mail messages written by the students before the
messages are sent or by installing filtering software that stops any message
containing a specified word. 87
The real-life example of Aaron Smith illustrates the potential control schools
can attempt to exert over student expression. 88
Smith, a thirteen-year-old Texas middle school student, and his friends began a
computer project in the school's computer lab. 89
Smith and his friends then went home and created a Web page, hosted on a domain
unconnected with the school, entitled "C.H.O.W.," which stood for
"Chihuahua Haters of the World." 90
The site was a spoof site that contained stories such as:
Today in the California region a 7-ft. boa constrictor was caught devouring a
[C]hihuahua. I have repeatedly called the snake's home to tell him what a great
job our operatives are doing out there, but he won't answer the phone. If
anyone can relay this information to him C.H.O.W. would be grateful. 91
A local Chow breeder who took offense to the site contacted the school's
administrators and threatened to hold an animal rights protest at the school. 92
The school officials responded by suspending Smith and transferring him out of
the computer lab class, and then required him to remove the site and post an
apology. 93
Smith's punishment poses problems under both a Tinker and Hazelwood analysis.
First, under Tinker, Smith's conduct would have needed to cause a material
disruption in classwork, create substantial disorder, or invade the rights
[*599] of others in order to be
punished. 94
The only disruption or disorder created by Smith's conduct was the threat of an
animal rights protest and numerous e- mail messages that were sent directly to
the school's superintendent, and the only invasion of rights was either to the
Chihuahuas or to the Chow breeders who were offended. 95
Therefore, the Tinker standard was not met. Second, under Hazelwood, the
school, when it affirmatively promotes student speech, may "exercis[e]
editorial control over the style and content of student speech in
school-sponsored expressive activities so long as actions are reasonably
related to legitimate pedagogical concerns." 96
Smith's project may have started in the school's computer lab, but the Web page
was created at home and not posted on or linked to the school's site. 97
Therefore, the standard necessary for punishment was not reached.
Smith's punishment did not result in litigation; however, in Beussink v.
Woodland R-IV School District, 98
a federal district court granted Brandon Beussink, a high school student who
was suspended because his Web site contained profanity and criticism directed
toward school officials, a preliminary injunction enjoining the school from
punishing Beussink and restricting the posting of his site. 99
Beussink created the Web site at home on his personal computer without using
school facilities or resources. 100
The site contained a link to the school's Web site, but the school's Web site
did not contain a link to the student's site. 101
Immediately after viewing Beussink's site, the school's principal decided to
discipline him. 102
No evidence of a disturbance was shown [*600]
as a result of Beussink's site. 103
The principal suspended Beussink for five days, then increased the suspension
to ten days, and required him to remove the site. 104
The suspension resulted in Beussink failing all his classes. 105
The court relied in part on Tinker in making the decision to grant Beussink's
preliminary injunction, stating that "[d]isliking or being upset by the
content of a student's speech is not an acceptable justification for limiting
student speech . . . ." 106
An Ohio high school student, Sean O'Brien, also received a ten-day suspension
and was forced to remove his Web site when he made fun of his band director on
his site. 107
O'Brien called his band director "an overweight middle-age man who doesn't
like to get haircuts." 108
O'Brien and the district reached an out-of-court settlement. 109
The situations involving Aaron Smith, Brandon Beussink, and Sean O'Brien all
involved students who created their Web sites out of school and posted them on
the Internet through private services. With the increased use
of Internet services in schools, 110
the situation could easily arise where the Web page was developed at school and
posted through the school's domain. In light of the unique free speech
issues presented by student Internet usage, Tinker, Hazelwood,
and Bethel fail to provide adequate standards of protection for student's
rights of expression when using the Internet at school.
B. The Tinker, Bethel, and Hazelwood Standards
The Supreme Court recognized in Reno v. ACLU 111
the uniqueness of the Internet and its various modes of
communication, and stated that previous "cases provide no basis for
qualifying the level of First Amendment scrutiny that should
be applied to this medium." 112
Tinker is an adequate standard if the student's online speech meets the
material disruption standard or invades the rights of another student, and
Tinker applies to student expression that takes place in [*601] school but is outside the scope of the
curriculum. Thus, Tinker would apply to students' use of the Internet
whether it is part of class-related work or done on the student's own time. 113
Under Bethel, schools may prohibit lewd, offensive, sexually explicit, or
vulgar terms in school discourse. 114
This standard would most likely cover students who use inappropriate language
in e- mail sent to other students or who develop Web pages onthe school's Internet
domain. However, in situations like Beussink in which the Web site was created
and posted to the Internet at the student's home but then
viewed on a school computer, the Bethel standard could allow that speech to be
punished if it also meets the material disruption standard in Tinker, thus
allowing the school to punish a student for speech that originated outside of
school. 115
The Hazelwood standard presents even more difficulty when applied to student
expression on the Internet: Hazelwood allows schools as a
publisher of student speech to "exercise editorial control over the style
and content of speech in school- sponsored expressive activities as long as
their actions are reasonably related to legitimate pedagogical concerns." 116
The Hazelwood decision expressly applies to "school-sponsored expressive
activities" like a school newspaper that is part of the journalism
curriculum. 117
This distinction, however, is too impractical to apply to student expression on
the Internet.
First, schools would have to distinguish between what speech is part of the
curriculum and what is outside the scope of the curriculum. In the earlier
example of a class using e-mail to communicate with pen-pals from another
school, 118
a student could communicate with the pen-pal more than is required by the
teacher overseeing the project and about subjects beyond that which are
required. The Hazelwood standard would require limiting the editorial control
to only what is within the curriculum and cause a fine line to be drawn between
what is within the scope of a school's editorial control and what is outside
the school's control. Furthermore, if the student accesses the e-mail account
outside of school, questions then arise about what level punishment a school
could levy on speech that arises from outside the school but may be related in
some way to the curriculum.
[*602]
Second, the Hazelwood standard fails to take into account the complexity of the
Internet: the modes of communication-graphical, textual, and
sound-and the types of speech involved-whether through Web sites, e-mail,
real-time chat sessions, or newsgroups-are too numerous and too difficult for a
school to attempt to exert control over. 119
Third, the Hazelwood standard fails to take into account the potential audience
for a student's speech. The Hazelwood decision applied to a student newspaper
whose directed audience was high school students at the school in which the
paper was published. 120
One of the considerations of the principal who deleted the school newspaper
articles in Hazelwood was that the materials contained in the articles were
inappropriate for some of the students at the school. 121
The potential audience of an Internet communication is global;
anyone, anywhere in the world could potentially access the communication. 122
This potential audience for the Internet communication
eliminates much of the reasoning behind Hazelwood: "Educators are entitled
to exercise greater control . . . to assure . . . that readers or listeners are
not exposed to material that may be inappropriate for their level of maturity .
. . ." 123
C. A New Standard Should Be Applied for School Control of Student Expression on
the Internet that Takes into Account the Limits of Tinker,
Bethel, and Hazelwood
A new standard should be applied to student expression on the Internet
that takes into account the limits of Tinker, Hazelwood, and Bethel while
protecting students' First Amendment rights. First, under
Tinker, schools should have the ability to punish student speech that
materially disrupts classwork, involves substantial disorder, or invades the
rights of others; 124
however, the Tinker standard should be limited to speech that arises in the
school. For example, if a student like Aaron Smith chooses to develop a Web
site on his home computer that makes fun of Chihuahuas and an animal rights
group then has a protest at the school, a student in Smith's situation should
not be punished for any school disruption that may ensue. 125
The Tinker Court stated students do not "shed their constitutional rights
of freedom of speech or expression at the schoolhouse gate," and punishing
a student at school for his creativity in making fun of a dog breed seems to go
against the fundamental principle stated by the Tinker Court. 126
[*603]
Second, under Bethel, schools should have the ability to limit student
expression on the Internet that uses lewd, sexually explicit,
or vulgar language when using the school's Internet access. 127
Third, however, schools should not be allowed to exercise editorial control
over student speech that originates from the school in the same way a school
may exercise editorial control over a student newspaper under Hazelwood.
Moreover, the school should not exercise editorial control over the student's
online speech unless it clearly violates established school policies.
For example, in Hazelwood one of the articles deleted by the school principal
dealt with parental divorce. 128
If a student developed a Web site using the school's computer system that
contained a link to another Web site that dealt with issues concerning children
of divorced parents, the school should not be able to exercise editorial
control by requiring the student to delete the link if the school does not
think the Web site is appropriate. Likewise, the school should not exercise
editorial control over the subject matter that a student chooses to discuss on
a Web page that is hosted on the school's Internet domain.
Schools, instead, should follow the example of Northwestern University. 129
A Northwestern Associate Professor, Arthur Butz, developed a Web page through
the University's Internet computing system that was devoted to
denying the Holocaust or "Holocaust Revisionism." 130
Northwestern, while not agreeing with the position asserted on the site,
allowed Butz to maintain his site, citing the University's policy on
intellectual freedom. 131
Furthermore, the views expressed by the student on a site hosted by the school
should not be viewed as an expression or endorsement made by the school. 132
[*604]
With the elimination of the school's editorial control of online student
speech, students will be able to exercise their First Amendment
rights when communicating on the Internet. Under Tinker,
schools will remain able to punish student speech that causes a material
disruption or invades the rights of others, 133
and under Bethel, schools will also be able to punish indecent, sexually
explicit, or lewd online speech. 134
This new standard will allow students to exercise their rights without taking
away substantial school control.
V. Conclusion
John Dewey stated: "Society not only continues to exist by . . .
communication, but it may fairly be said to exist . . . in communication . . .
." 135
The Internet is a powerful communication device which gives
students the ability to communicate to a vast and limitless audience. By
allowing students to fully express themselves without a school's editorial
control over their dissemination of viewpoints and speech while communicating
on the Internet, students can truly maintain their
constitutional rights while communicating to a cyber-audience from within the
schoolhouse gates.
FOOTNOTES:
n1
John Dewey, Democracy and Education 5 (MacMillan Co. 1955) (1916) (emphasis
omitted).
n2
Id. at 416-17.
n3
Id. at 417.
n4
See id. at 5, 416.
n5
Id. at 5.
n6
Andrew S. Molnar, Computers in Education: A Brief History, Tech. Horizons Educ.
J., June 1, 1997, at 63.
n7
Id.
n8
Id.
n9
See Reno v. ACLU, 521 U.S. 844, 849-51 (1997).
n10
Id. at 849-51. See id. at 849-53, for a historical overview and general discussion
of the way in which various Internet communication modes
function.
n11
The Web contains "pages" of information, including text and graphics,
linked to other pages. Id. at 852. In mid- 1999, estimates were that
"[t]he Web [then] contain[ed] an estimated six trillion bytes of
information spread over 800 million Web pages and three million computers that
distribute[d] the information." Ashley Dunn, Take My Site, Please: As the
Economic Stakes on the Web Explode, the Savvy-and Sometimes the
Unscrupulous-Are Figuring Out Myriad Ways to Fool the Search Engines, L.A.
Times, Aug. 2, 1999, at C1. The true size of the Web is difficult to determine
because pages appear and disappear often and no easy method can be used to
determine its exact size and scope. EEMS Details Four Years of Attempts to
Measure Web Growth, 22 Electric Mail & Messaging Sys., Apr. 17, 1998,
available in 1998 WL 8214605.
n12
E-mail, or electronic mail, is similar to a note or letter that can be
distributed to an individual or group. Reno v. ACLU, 521 U.S. at 851. The
information is stored until the recipient retrieves the message. Id. Unlike
regular mail, or "snail mail," e-mail is instantaneous and broadly
available though many free Web services. Ryan J. Donmoyer, Cybercafes Serve Up
Fresh E-mail All Over the World, San Diego Union-Trib., Oct. 11, 1998, at F1,
available in 1998 WL 20052508. Additionally, an individual can access an e-mail
account from any point, virtually worldwide. Id.
n13
Mailing lists or listservs, sometimes referred to as mail exploders, are
services in which individuals send e-mail to a common address and the messages
are distributed to the e- mail accounts of all the subscribers. Reno v. ACLU,
521 U.S. at 851. Individuals, called "list-owners," usually maintain
and manage the list and may enforce rules about list discussion. Milverton
Wallace, Newsgroups, The Lancet, Mar. 1, 1998, at SI14. Unsolicited e-mail or
"spam," is often distributed to large groups of people in a similar
manner. Paul Freeman, Telecom Issues Top Consumer Complaints, 19 Puget Sound
Bus. J. 26, 26 (1998), available in 1998 WL 1934034.
n14
Newsgroups are a loose network of sites that allow users to read and post
messages. Carol Collins, Usenet Newsgroups Share Information on Surnames, S.
Bend Trib., June 7, 1998, at F8. Newsgroups are organized by subjects and are
usually unmoderated discussion forums on virtually any topic. Lou Dolinar, At
Their Best, Newsgroups Are a Forum for Exchanging Ideas, Buff. News, Dec. 2,
1997, at D8. Over 60,000 newsgroups are currently in existence. Leslie
Gornstein, The Unsinkable Usenet: The Internet's Answer to the
Water Cooler Just Keeps Gabbing Along, Despite a Flood of Junk Commercial
Messages, Orange County Reg., May 3, 1998, at K05.
n15
Chatrooms allow users to instantly communicate with each other by typing a
message that is instantly transmitted to others participating in the chatroom.
Maria O'Daniel, Guides for the New Chatroom Visitor, New Straits Times, Apr.
10, 1997, at 30, available in 1997 WL 2956460. Some chatrooms designed for
children have an adult who monitors conversation and can expel users who
violate appropriate behaviors. Bonnie Bruno, Managing Kids' Online Chatter,
Newsday, Apr. 8, 1998, at C7.
n16
Telephony services are Internet-based telecommunication
services that combine telephone and data networks to allow individuals to communicate
through voice transmission or by fax through Internet
connections. Atanu Roy, Internet Telephony: The Death of
Distance, Computers Today, Oct. 15, 1998, at 88, available in 1998 WL 9934954.
Telephony networks are being developed to provide world-wide Internet
telephone call capabilities at lower costs than traditional telephone
communication. Craig Blakeley, IP Telephony Reaches Beyond the Call,
InternetWeek, Jan. 5, 1998, at 49.
n17
Streaming allows audio and video files to be broadcast over the Internet
without requiring the downloading of files. Site Building: Building Web Sites
with SMIL, Computer Shopper, Sept. 1, 1998, at 478. Radio stations can
broadcast live over the Internet allowing Internet
users access to national and international broadcasts that otherwise would be
unavailable. Gerald M. Walker, Radio on the Internet? Yes, but
. . . , World Broadcast News, Sept. 30, 1998, at 46.
n18
Andrew C. Gross & Edward D. Hester, Electronic Commerce: A Market
Opportunity for Support Equipment and Services, Business Economics, Oct. 1998,
at 56, 56.
n19
See infra notes 22-24 and accompanying text.
n20
Courtney Macavinta, Education Official: E-rate Must Survive (last modified Aug.
7, 1998) <http://www.news.cnet.com/news/0-1004-200-332024.html>.
n21
Telecommunications Act of 1996, Pub. L. No. 104- 104, 110 Stat. 56 (codified in
scattered sections of 47 U.S.C.).
n22
Intel.com Education HomePage, Introducing the E- r a t e ( v i s i t e d O c t
. 1 3 , 1 9 9 8 ) <http://intel.com/education/erate/whatis.html>.
See Roxana E. Cook, Note, All Wired up: An Analysis of the FCC's Order to
Internally Connect Schools, 50 Fed. Comm. L.J. 215 (1997) for an analysis of
the legislation creating the e-rate.
n23
Macavinta, supra note 20.
n24
Intel.com Education HomePage, supra note 22. Calculations are based on whether
the school is an urban or rural district and the percentage of eligible
students for free or reduced-priced lunches. Id.
n25
See National Ctr. for Educ. Statistics, U.S. Dep't of Educ., NCES 1999-017, Internet
Access in Public School and Classrooms: 1994-98 1 (Feb. 1999) [hereinafter NCES
1999-017].
n26
Id. at 1.
n27
National Ctr. for Educ. Statistics, U.S. Dep't of Educ., NCES 98-031, Internet
Access in Public Schools 1 (Mar. 1998) [hereinafter NCES 98-031].
n28
NCES 1999-017, supra note 25, at 1.
n29
Id.
n30
NCES 98-031, supra note 27, at 1.
N31
See WhoWhere? And the American School Directory Launch N2Mail; Free Web-based
E-Mail Service for Students, Parents and Educators Makes Communicating Via the Internet
Fast, Fun and Easy, Sept. 8, 1997, available in Westlaw, 9/8/97 Bus. Wire
08:15:00.
n32
See Ross Kerber, Kids Say the Darnedest Things: Student Web Sites Present
Schools with Difficult Free-Speech Issues, Wall St. J., Nov.
17, 1997, at R12; see also Bolt.com, Bolt Reporter (last modified Jan. 29,
1999) <http://www.boltreporter.com>
(containing banned or censored newspaper articles written exclusively by
teenagers).
n33
See Kim Komando, Software Makes It Easy to Create Web Pages, Ariz. Republic,
Oct. 5, 1998, at E2.
n34
Domain names are registered by individuals, companies, educational facilities,
or governmental entities and serve to provide Internet users
an address at which the Web site can be accessed. See Arthur Fredrick Edwards,
Ready to Plunge into the Domain of the Name Game?, Computer Wkly., June 4,
1998, at 26 (discussing the shortage of domain names); Lynn McRobb, Legally On
Line, Scotsman, Oct. 6, 1998, at 13 (reporting on proposals to develop "a
new internet management structure").
n35
Dewey, supra note 1, at 115.
n36
Ambach v. Norwick, 441 U.S. 68 (1979).
n37
Id. at 77.
n38
NASA HomePage (last modified Oct. 18, 1998) <http://www.nasa.gov>.
n39
Library of Congress HomePage (last modified Aug. 25, 1998) <http://lcweb.loc.gov>.
n40
National Library of China HomePage, English Version ( v i s i t e d O c t . 1 6
, 1 9 9 8 ) <http://www.lib.tsinghua.edu.cn/english/beitu>.
n41
African-American History HomePage (visited Feb. 2, 2 0 0 0 ) <http://www.geocities.com:80/Athens/Forum/9061/afro/afro.html>.
n42
Internet searches can be run using "search engines,"
which are Web sites that run keyword searches to find Internet
sites. D. Scott Brandt, What Flavor Is Your Search Engine?, 17 Computers in
Libr., Jan. 1, 1997, at 47, available in 1997 WL 10078536.
n43
The Center for Dewey Studies (last modified Nov. 9, 1999) <http://www.siu.edu/deweyctr/index2.html>.
n44
John Dewey High School HomePage (visited Oct. 16, 1998) <http://ns2.con2.com/deweyhs/index.html>.
n45
Lisa Janicke, John Dewey (visited Feb. 2, 2000) <http://lrs.ed.uiuc.edu/students/janicke/Dewey.html>.
n46
ILT Web, Democracy and Education Table of Contents ( v i s i t e d F e b . 2 ,
2 0 0 0 ) <http://www.ilt.columbia.edu/academic/texts/dewey/d
e/contents.ht ml>.
n47
Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969).
n48
See id.
n49
See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 679 (1986).
n50
See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 262 (1988).
n51
Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969).
n52
Id. at 504.
n53
Id. at 510.
n54
Id. at 508.
n55
Id.
n56
Id. at 510.
n57
Id. at 512-13.
n58
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).
n59
Id. at 677-78. Fraser gave the following speech: I know a man who is firm-he's
firm in his pants, he's firm in his shirt, his character is firm-but most . . .
of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a
man who takes his point and pounds it in. If necessary, he'll take an issue and
nail it to the wall. He doesn't attack things in spurts-he drives hard, pushing
and pushing until finally-he succeeds. Jeff is a man who will go to the very
end-even the climax, for each and every one of you. So vote for Jeff for A.S.B.
vice-president-he'll never come between you and the best our high school can
be. Id. at 687 (Brennan, J., concurring) (alteration in original).
n60
Id. at 678. The rule punished "[c]onduct which materially and
substantially interfere[d] with the educational process . . . , including the
use of obscene, profane language or gestures." Id.
n61
See supra text accompanying notes 36-37.
n62
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. at 681 (quoting Ambach v. Norwick,
441 U.S. 68, 76-77 (1979)) (alteration in original).
n63
Id.
n64
Id. at 685.
n65
Id. at 688 (Brennan, J., concurring).
n66
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988).
n67
See id. at 262-65.
n68
See id. at 268-70.
n69
Id. at 270-71.
n70
See id. at 271-73.
n71
See discussion supra Part III.B.1.
n72
See discussion supra Part III.B.2-3; see also Glen Kubota, Comment, Public
School Usage of Internet Filtering Software: Book Banning
Reincarnated?, 17 Loy. L.A. Ent. L.J. 687, 721-22 (1997) (calling the Bethel
and Hazelwood standards "mandatory school curriculum" and the Tinker
standard "voluntary public discourse").
n73
Cal. Educ. Code § 48907 (West 1993); Colo. Rev. Stat. § 22-1-120 (1998); Iowa
Code § 280.22 (1997); Mass. Gen. Laws ch. 71, § 82 (1996).
n74
See, e.g., Iowa Code § 280.22 (discussing a student's right to exercise free
speech).
n75
Id. § 280.22(2).
n76
Id. § 280.22(3).
n77
Id. § 280.22(6).
n78
"Official school publications" are defined as "material produced
by students in the journalism, newspaper, yearbook, or writing classes and distributed
to the student body either free or for a fee." Id. § 280.22(7).
n79
Id. § 280.22(5).
n80
Id. § 280.22(4).
n81
Mass. Gen. Laws ch. 71, § 82 (1996).
n82
Pyle v. School Comm., 667 N.E.2d 869, 871 (Mass. 1996) (quoting Pyle v. South
Hadley Sch. Comm., 55 F.3d 20, 22 (1st Cir. 1995)). South Hadley High School's
dress code prohibited students from wearing "apparel that 'harasses,
intimidates, or demeans an individual or group of individuals because of sex,
color, race, religion, handicap, national origin or sexual orientation.'"
Id. at 870-71 (quoting Pyle v. South Hadley Sch. Comm., 861 F. Supp. 157,
168-70 (D. Mass. 1994)). The plaintiffs wore shirts to school that
administrators determined were in violation of the dress code, but the wearing
of the clothing did not create disorder or disruption. Id. at 871 n.3. On a
certified question from a federal court, the court held "the statutory language
limits students' rights of free expression only where such expression creates a
disruption or disorder within the school." Id. at 872.
n83
See discussion supra Part III.C.
n84
See discussion supra Part III.B.1, 4.
n85
See discussion supra Part III.B.2-3.
n86
See discussion supra Part III.B.1.
n87
See Kubota, supra note 72, at 727 (discussing filtering software that can be
used to censor and "block[ ] outgoing Internet messages
containing inappropriate content such as addresses, phone numbers, or certain
profane, offensive, or sexually explicit words"). See Philip T.K. Daniel,
The Electronic Media and Student Rights to the Information Highway, 121 Educ.
L. Rep. 1 (1997) for a discussion of Fourth Amendment issues involving student
expression on the Internet.
n88
See Tamar Lewin, Schools Challenge Students' Internet Talk,
N.Y. Times, Mar. 8, 1998, at A16.
n89
Id.
n90
Id.
n91
Id.
n92
Id.
n93
Id.
n94
See Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 512-13
(1969).
n95
Lewin, supra note 88.
n96
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271-73 (1988).
n97
Lewin, supra note 88.
n98
Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175 (E.D. Mo. 1998).
n99
Id. at 1177.
n100
Id.
n101
Id. at 1177 n.1.
n102
Id. at 1178. Beussink's website was entitled "Brittney & Brandon's
Kick Ass Home Page!!" and read: Please visit our FUCKED UP High School,
"Home of the fucked up faculty members from HELL!" Don't forget to
e-mail our . . . principal and tell Delma Farell that her page sucks . . . .
Why our school is fucked up, you ask? Well, where do I start . . . let me see .
. . number one, the students are treated like they are lower than dirt, and are
constantly reminded of this. If one of the faculty members do something which
can be upheld by the court, a new rule pops up in the school policy. No one
knows where it came from, but it seems as if it's been there for ages. Then
they send the people who it affected apology letters!! What a bunch of shit!!
Well, I guess you don't want to know the whole story (I sure wouldn't), so I
guess that is enough about that! The Associated Press, Missouri Teen Who
Criticized School on Web Page Sues Over Suspension (visited Jan. 30, 1999)
<http://www.freedomforum.org/speech/1998/8/28website.asp>
(emphasis omitted) (alteration in original) (full expletives added).
n103
Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d at 1179.
n104
Id.
n105
Id. at 1179-80.
n106
Id. at 1180.
n107
Terry McManus, Home Web Sites Thrust Students Into Censorship Disputes, N.Y.
Times, Aug. 13, 1998, at A3.
n108
Id.
n109
Id. The school, Westlake High School near Cleveland, paid O'Brien $ 30,000 in
damages and issued an apology. Id.
N110
See supra text accompanying notes 25-28.
n111
Reno v. ACLU, 521 U.S. 844 (1997).
n112
Id. at 870.
n113
See discussion supra Part III.B.1, 4.
n114
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685-86 (1986).
n115
See Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175, 1180 (E.D. Mo.
1998) (relying on lack of disruption under Tinker in determining likelihood of
success on merits when deciding to grant a preliminary injunction); see also
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. at 688 (Brennan, J., concurring)
("If [Fraser] had given the same speech outside of the school environment,
he could not have been penalized simply because government officials considered
his language to be inappropriate.").
n116
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).
n117
Id.
n118
See discussion supra Part IV.A.
n119
See supra notes 9-18 and accompanying text.
n120
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. at 262.
n121
Id. at 263.
n122
Donmoyer, supra note 12.
n123
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. at 271.
n124
See Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 513 (1969).
n125
See supra text accompanying notes 86-95.
n126
Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. at 506.
n127
See Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986).
n128
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. at 263.
n129
See Northwestern News, Statement by Northwestern University President Henry S.
Bienen Regarding Associate Professor Arthur Butz and His Web Page (last
modified Jan. 6, 1997) <http://www.nwu.edu/univ-relations/media/news-
releases/*archives96-97/*univ/butz.html>.
n130
Arthur R. Butz, Home Web Page of Arthur R. Butz (last modified Aug. 31,
1998) <http://pubweb.nwu.edu/abutz/>.
n131
Northwestern News, supra note 128. The statement released by University
President Henry S. Bienen stated: The University's policy on intellectual
freedom as it relates to computer usage states: Intellectual Freedom: The
network is a free and open forum for the expression of ideas, including
viewpoints that are strange, unorthodox, or unpopular. The network administrators
place no official sanctions upon the expression of personal opinion on the
network. However, such opinions may not be represented as views of Northwestern
University. Id.
n132
See Jeffrey G. Raphelson, Old Laws, New Laws, and New Technology: A Summary of
Some Laws Affecting Use of the Internet, 77 Mich. B.J. 1202,
1207 (1998) for a discussion of the Communication Decency Act
of 1996's elimination of liability as a publisher or speaker of information for
a provider of interactive computer services.
n133
See discussion supra Part III.B.1, 4.
n134
See discussion supra Part III.B.4.
n135
Dewey, supra note 1, at 5 (emphasis omitted).