The world of instant communications via the internet and instant messaging services has created an environment that schools find increasingly difficult to regulate or influence. Complicating the issue is the limited authority of schools and the individual rights of teens and children to express freely their thoughts and comments on social media. This area deserves much judicial attention and in fact will take many years of litigation in order to draw reasonable conclusions about the ability of school officials to intervene when student speech reaches a broad audience via cyberspace.
A review of fundamental issues regarding student free speech rights reveal how little school officials can control the content of student online expression especially if the student speech originates off campus. Students have a constitutional right to freedom of speech and expression as granted by the United States Constitution. The first Amendment to the U.S. Constitution provides that Congress shall make no law abridging the freedom of speech and applies this concept to the states through the Due Process Clause of the Fourteenth Amendment. In my home state of New Jersey, the free speech clause is found in Article I, paragraph 6, and states that “Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech…” The freedom of expression encompasses non-verbal and verbal speech, including expressive conduct which conveys a particularized message that must generally be understood by those viewing it. When expressed views are controversial the government must be tolerant of the rights of individuals to express their views. Students cannot be disciplined or even punished for expressing their personal views on school property unless school officials have reasons to expect that the speech or expressive conduct will substantially interfere with the operation of the school and this becomes more complex when student views are expressed off school property.
A school district can restrict certain speech depending on the forum in which the speech or expression occurs. This becomes clear if the speech originates on school grounds or at a school sponsored function when that speech is lewd, vulgar or profane, or if the speech advocates for the illegal use of drugs. When an observer would view student speech as that of the school’s own speech on the basis of legitimate pedagogical concerns, or if the speech were powerful enough to cause a substantial disruption to the educational process or the rights of other students at school, school officials may act to limit or restrict such speech. Three types of forums exist: open forums, limited public forums, and closed public forums. The open forum is a traditional place with a long-standing tradition of free expression such as sidewalks, streets, parks, shopping malls, and generally any public venue like the Internet. Limited pubic forums and closed public forums allow governmental limits to certain types or forms of public speech as long as government policies are reasonable and do are not based on a desire to suppress a particular viewpoint nor can such policies discriminate on the basis of the viewpoint of the speaker.
School policies are generally designed to control student speech and conduct attributable to actions occurring when students attend school or school sponsored events. It is wise to note that most children and young adults attend school only about one-sixth of their lives from birth to eighteen years of age. The other five-fifths in the lives of youth occur in public settings, communities, or homes and these actions generally are not within reach of school officials. This is an important component for consideration given that the majority of student speech originates in the public or private sector of society and not in school buildings.
School officials are confronted these days with complex questions when asked to deal with the phenomenon of what has become to be known as “Cyberbullying”. This area of student speech is largely unregulated and often results in what researchers have characterized as “willful and repeated harm” inflicted through phones and computers toward other children or students. Remember that cell phones have just recently evolved into tiny computers with internet capabilities including not only texting but photographic and video sharing of content. Often, school disciplinary codes of conduct define very little about the authority of educators to regulate online student speech and expression due to the lack of authority that school officials actually have regarding these matters. Whether the responsibility for regulating student conduct online falls to the family, the police, or the schools remains an open question for modern society to explore.
The issues of student speech and content of online speech will remain problematic for school officials unless such speech materially and substantially interferes with maintaining discipline and the general safe operation of the school. One example would be an off campus threat of violence made by a student such as a bomb threat or “hit list” against specific individuals. The more complex issues revolve around non-violent, non-threatening speech that may simply be vulgar, offensive or harassing. Courts are clearly divided on the ability of school officials to regulate or even react to student online speech that originates off campus. Numerous cases have risen in various circuit courts and the overwhelming majority of cases have been found in favor of the free speech rights of students or children.
It is increasingly more apparent that the Internet has created a revolution in the manner in which society communicates. Students will use the Internet as a vehicle for social interaction, communication, and information. Young people will use the online forum to criticize, attack, humiliate, embarrass and even anger other students or school officials. With respect to the type of speech that occurs on the Internet, the central question of whether such speech substantially interferes with the operation of the school will determine the appropriate reaction of school officials nationwide in future months or years. The facts or circumstances that may lead a reasonable person to conclude that the result of such speech will lead to classroom disruptions, acts of violence such as fights, defiant student behavior, and truancy, will be the determining factor guiding the actions of schools. The “materially and substantially interferes” threshold of law that applies to the appropriate discipline and operation of schools will continue to guide school officials in this confusing and complex area of student speech regulation. Until the courts have provided sufficient guidance to school officials, the Internet remains a wide-open public forum for expression that will evade restrictions or regulations due in part to the freedoms provided by the United States Constitution for all individuals in society including our youngest citizens.
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