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Cyberspeech Common Law Foundations

As mentioned in a previous post there has been a recent trend of students facing school disciplinary procedures for off-campus activities and behaviors in cyberspace. It is the goal of this post to discuss 1st Amendment common law as it relates to student cyberspace activities. Because there have been no truly definitive rulings to date on 1st Amendment issues regarding free speech in the schoolosphere, all parties are left to hypothesize about the boundary lines of student cyberspeech. However a review of a trilogy of law cases dating back as far as 1969 that acts as the guidelines for current rulings on student free speech might be of use to all of us.

Tinker v. Des Moines Independent Community School District is the earliest of these keystone cases. Tinker specifically focused on the rights high school students have to express free speech. The case involved a school policy stating that students were not allowed to wear black armbands to protest the Vietnam War. Three students wore the bands, then refused to take them off when directed to do so by school administrators. The students were subsequently suspended. As a result of the suspension, the students sued the school district claiming their first amendment rights were violated. The court found that students do not give up rights to freedom of speech "at the school house gate." The court further stated that absent a "constitutionally valid reason to regulate their speech, students are entitled to freedom of expression of their views." From this came the need for a test to determine what comprises a "constitutionally valid reason." Thus the "substantial disruption test" was born. This test outlined the fact that students' speech may only be regulated if it causes a substantial disruption of school activities.Approximately two decades later, in 1986, the issue of students' freedom of speech was raised yet again.

In Bethel School District Number 403 v. Fraser, the court found that schools were allowed to punish students for speech that administrators deemed to be improper, when spoken by students on school grounds or at school functions. In Bethel, Matthew Frazer was suspended for giving a speech at a school-wide assembly because he used a continuing sexual metaphor to describe the candidate he was supporting. Subsequently, Frazer was given a three day suspension and was prohibited from speaking at graduation. After some disagreement between the district and the state appellate courts, the Supreme Court ruled that sexually explicit student speech was not protected under Tinker.

The final case in the trilogy, from a Supreme Court ruling in 1988, is Hazelwood School District v. Kuhlmeier. This case centered on the content of a school newspaper. In Hazelwood, students wrote about their experiences with divorce and teen pregnancy; however, the administration forbade it to be printed. The students claimed that their rights to free speech were violated. However, the court ruled that since the newspapers were part of the school program, the students did not have the shelter of the 1st Amendment umbrella.

Despite these three court opinions, there is no clear wide reaching common law ruling regarding students' behaviors as they relate to internet activities or cyber speech. Further complicating the matter is the fact that prior to widespread use of computers and the internet, speech was typically in the same location as the person. In this digital age, quite often a person may be located a continent away from their "speech," as that "speech" may be displayed on a social networking page, in a website, in a blog, in a tweet, or by a message, viewed on a computer, or even sent to a cell phone.Additionally, proponents for new legislation assert the necessity of addressing students' freedom of speech because the degree of disturbance created by students' speech may be much more broad than in the past. Widespread use of digital technology provides students with a much larger forum to discuss their views than was possible before the digital age. With several keystrokes, students are now able to project their views to an unlimited audience for an unlimited time period.

Until the judicial system addresses current issues surrounding free speech as it relates to students and their cyber activities, there will continue to be questions for us all as to what constitutes acceptable behavior for students as it relates to freedom of speech. As we progress further into our digital lives, it becomes more imperative that we have a judicially determined set of parameters addressing students' freedom of speech. Until that day, teachers, students, and administrators must continue to agree that they may disagree.

For a more inclusive list of relevant common law cases, or if you wish to send us a relevant case from your area please contact us at [email protected]

Anita Dubusdevalempre, Robert Hancock, and Julie Matte.

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