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Scholar's Forum

students’ rights in the digital age

By Professor Mary-Rose Papandrea

The Supreme Court has granted public secondary schools broad authority to restrict their students’ speech on campus. Although in its earliest cases the Court limited the power of school officials to punish their students’ expression—requiring schools to demonstrate “material and substantial interference with schoolwork or discipline”—in recent years it has permitted schools to punish students for lewd or profane speech as well as speech that school officials believe advocates illegal drug use.

Because all of the Supreme Court’s cases have involved speech occurring at school or during a school sanctioned activity, however, lower courts have struggled to determine when, if ever, public schools should have the power to restrict student expression that does not occur on school grounds during school hours. In the last several years, courts have grappled with this same question in a new context: the internet. Around the country, students are challenging punishments they received for creating parody websites mocking their teachers or school administrators or for making offensive comments about school officials or fellow students on the internet.

Most courts agree that schools have no authority to punish their students for making fun of their teachers using the old-fashioned methods, whether in a diary they keep in their bedrooms or while talking with their friends on the street corner. Of course, few cases involving this sort of student expression arise because school officials typically never find out what their students are saying about them.

With the growing popularity of social networking sites and websites like youtube.com, however, school officials are learning what their students have to say, and when they don’t like what they see or hear, they frequently punish the students involved. The officials argue that they can punish students for anything they say on the internet if it threatens to disrupt school activities, even if the only disruption occurs in their administrative offices as they figure out how to address student speech they don’t like.

The dramatic increase in the number of student speech cases involving the internet begs for a closer examination of not only the scope of school officials’ authority to censor the expression of their students but also the scope of juvenile speech rights generally. After all, permitting schools to restrict student speech on the internet would necessarily interfere with the free speech rights juveniles enjoy when they are outside the schoolhouse gates.

No one seriously argues that children fall entirely outside of the First Amendment; instead, some have argued that minors are entitled to lesser or reduced rights. These commentators point to Supreme Court cases holding that it is important to protect minors from profanity and sexually explicit expression. Notably, however, none of the Court’s cases addressing the speech rights of children concerns the right of minors to speak; instead, they all focus on protecting children from hearing or receiving speech that is regarded as harmful.

Although there are plenty of reasons to question whether minors are indeed harmed by exposure to indecent speech, such concerns are even less persuasive when it is a minor himself speaking. 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.”

At first blush, the assertion that there are important 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 eighteen, 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 twelve 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 eighteen and enjoy full constitutional rights—is not so obvious. Furthermore, the Supreme Court has never held that adults who are less emotionally or intellectually developed are somehow not entitled to benefit from First Amendment protection.

Because neither Supreme Court precedent nor First Amendment theory allows us to dismiss student speech right claims 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 a teacher leading a physics lesson to restrict the students’ discussion of the political issues of the day. In this way, permitting schools to sanction 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.

The above considerations lead to the conclusion that schools should have limited authority under the First Amendment to punish student speech on the internet. This does not mean, however, that schools 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.

This article is based on a work in progress, “Student Speech Rights in the Digital Age,” for the Florida Law Review.