Schools Lack Authority to Punish Online Student Speech

One of the major issues facing schools is whether they have authority to discipline their students for speech on the Internet.  In an article I wrote that will appear in the December 2008 issue of the Florida Law Review, I argue that public secondary schools have virtually no authority under the First Amendment to punish students for online speech.  I decided to write this article after hearing about cases all over the country where schools punished their students for creating parody websites mocking their teachers or school administrators or for making offensive comments about school officials or fellow students on the Internet.  One of the more interesting cases arose in Connecticut, where the court upheld a school's decision to punish a student for calling school officials "douchebags" on  Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008).    

Some have argued that we should not get too worked up about schools restricting their students' expression because they are minors and therefore entitled to lesser First Amendment protection.  At first blush, the argument that there are differences between children and adults that could justify the restriction of minors' speech rights seems noncontroversial.  Certainly if by "children" we mean persons from birth to age 18, claims that children are emotionally and mentally less mature and more vulnerable than adults is obvious.  Most of the students asserting their free speech rights, however, are not pre-school or elementary school students.  Instead, almost all plaintiffs in student speech cases are at least 12 years old, and the vast majority are in high school.   Thus, when considering the free speech rights of students, in practical terms the discussion is about the free speech rights of adolescent students. The emotional, developmental, and cognitive differences between high school students-who are minors and given fewer rights-and recent high school graduates-who are typically over age 18 and enjoy full constitutional rights-is not so obvious.  Furthermore, the Supreme Court has never held that adults who less emotionally or intellectually developed are somehow not entitled to benefit from First Amendment protection.

Commentators arguing that minors have reduced free speech rights point to Supreme Court cases upholding laws aimed at protecting minors from profanity and sexually explicit expression.  Notably, however, none of the Court's cases addressing the speech rights of children concern the right of minors to speak; instead, they all focus on protecting children from hearing or receiving speech that is regarded as harmful.  Furthermore, all of the Court's cases involve indecent or sexually explicit expression.  It is by no means clear that the Court would extend its protectionist approach to violent speech or to other kinds of expression that are not indecent or profane.

Another argument some have made against juvenile speech rights is that the various theoretical justifications for the First Amendment-the promotion of self-government, the search for truth in the marketplace of ideas, and the fostering of autonomy and self-fulfillment-all have little application to minors.  This is by no means clear, however.  A primary goal of public education should be to prepare minors to be political actors by training them to think rationally and critically.  Without some education about how to exercise their free speech rights, students would enter the adult world without the necessary skills to contribute to the political world.  On a practical level, politically aware young people can have an impact on the political dialogue and influence the way their parents and other adults vote.  Allowing the "marketplace of ideas" to flourish at school and on the Internet helps prepare students to be participants in democracy where the free exchange of ideas and diversity of viewpoint are cherished.  Given that young people spend the bulk of their time in school acquiring knowledge and developing their belief systems, the theory of the marketplace of ideas has particularly strong currency for them.  The role of the freedom of expression in promoting autonomy and self-fulfillment has perhaps even more resonance with respect to minors than with adults. Adolescence is a time of tremendous growth, self-awareness, and personality development.  Allowing students to express themselves freely promotes the development of their individuality.  Some commentators have suggested that juvenile speech is simply low value speech not worthy of full constitutional protection, but even if such a broad generalization were true, the Supreme Court has never denied full First Amendment protection to adult speech simply because it is "low value."  

Because neither Supreme Court precedent nor First Amendment theory allows student speech right claims to be dismissed out of hand, we are left to consider whether there is something special about public schools that would justify granting them broad power to restrict student speech on the Internet.  The Court has frequently cited the "special characteristics" of the school environment to justify restrictions on student speech rights. The Court has not been clear about what these special characteristics are, but surely the Court is concerned about giving school authorities the power to maintain quiet and orderly classrooms. Clearly it is unobjectionable for teacher leading a physics lesson to tell students that they can't talk about the presidential election during class.  In this way, permitting schools to restrict speech that disrupts their work closely resembles the ability of, say, courtroom deputies to enforce certain rules of conduct while court is in session or any number of other time, place, and manner restrictions that we tolerate in any number of public fora.  For the most part, however, communications on the Internet do not intrude into the public space, and therefore by their very nature cannot cause an immediate disruption to the work of the school.  

While schools have limited authority under the First Amendment to punish student speech on the Internet, this does not mean that they are helpless to act.  In cases of violent expression, school officials can seek help from law enforcement authorities who are trained to assess the likelihood of an actual threat to the safety of the school and its students.  Teachers and administrators who are truly defamed can seek redress through civil lawsuits.  But for the most part, the primary approach that schools should take is not to punish their students for their speech on the Internet, but to educate them about how to use this medium responsibly.


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