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Student Speech Rights

Permanent Link: http://ufdc.ufl.edu/UFE0022247/00001

Material Information

Title: Student Speech Rights First Amendment Implications for High School Students on Popular Online Social Networks, Myspace and Facebook
Physical Description: 1 online resource (149 p.)
Language: english
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2008

Subjects

Subjects / Keywords: facebook, myspace, network, online, social, speech, student
Journalism and Communications -- Dissertations, Academic -- UF
Genre: Mass Communication thesis, M.A.M.C.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Abstract: Online social networks such as MySpace and Facebook have garnered great popularity over the past few years. As with other new communicative technologies, the online social networks have brought about questions concerning the First Amendment. Free speech on these online social networks has become an issue in high schools across the nation. Thus, the main question is whether students enjoy free speech rights on online social networks. The study used a legal research methodology to determine what types of speech are protected on online social networks, what standard courts have employed in evaluating student speech on online social networks, and whether courts had relied upon First Amendment theories in reaching these decisions. Results showed that there is little guidance from the courts involving online social networks. Rather, any discussion of student speech on online social networks relies on the holdings of what is referred to as the student speech trilogy. The study found that these three cases handed down from the U.S. Supreme Court over a span of twenty years provide a starting point in determining when school officials can punish or regulate student speech on online social networks. However, the study also reveals that a recent decision of the U.S. Supreme Court may change the landscape by which courts interpret and decide student speech cases. Relying on the available student speech jurisprudence, the study concludes that the U.S. Supreme Court's standard of 'material and substantial' disruption is the appropriate standard to apply to student speech cases involving online social networks. This standard allows courts to recognize student free speech rights while allowing school officials to maintain control of the educational process.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Thesis: Thesis (M.A.M.C.)--University of Florida, 2008.
Local: Adviser: Alexander, Laurence B.
Electronic Access: RESTRICTED TO UF STUDENTS, STAFF, FACULTY, AND ON-CAMPUS USE UNTIL 2009-05-31

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2008
System ID: UFE0022247:00001

Permanent Link: http://ufdc.ufl.edu/UFE0022247/00001

Material Information

Title: Student Speech Rights First Amendment Implications for High School Students on Popular Online Social Networks, Myspace and Facebook
Physical Description: 1 online resource (149 p.)
Language: english
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2008

Subjects

Subjects / Keywords: facebook, myspace, network, online, social, speech, student
Journalism and Communications -- Dissertations, Academic -- UF
Genre: Mass Communication thesis, M.A.M.C.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Abstract: Online social networks such as MySpace and Facebook have garnered great popularity over the past few years. As with other new communicative technologies, the online social networks have brought about questions concerning the First Amendment. Free speech on these online social networks has become an issue in high schools across the nation. Thus, the main question is whether students enjoy free speech rights on online social networks. The study used a legal research methodology to determine what types of speech are protected on online social networks, what standard courts have employed in evaluating student speech on online social networks, and whether courts had relied upon First Amendment theories in reaching these decisions. Results showed that there is little guidance from the courts involving online social networks. Rather, any discussion of student speech on online social networks relies on the holdings of what is referred to as the student speech trilogy. The study found that these three cases handed down from the U.S. Supreme Court over a span of twenty years provide a starting point in determining when school officials can punish or regulate student speech on online social networks. However, the study also reveals that a recent decision of the U.S. Supreme Court may change the landscape by which courts interpret and decide student speech cases. Relying on the available student speech jurisprudence, the study concludes that the U.S. Supreme Court's standard of 'material and substantial' disruption is the appropriate standard to apply to student speech cases involving online social networks. This standard allows courts to recognize student free speech rights while allowing school officials to maintain control of the educational process.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Thesis: Thesis (M.A.M.C.)--University of Florida, 2008.
Local: Adviser: Alexander, Laurence B.
Electronic Access: RESTRICTED TO UF STUDENTS, STAFF, FACULTY, AND ON-CAMPUS USE UNTIL 2009-05-31

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2008
System ID: UFE0022247:00001


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STUDENT SPEECH RIGHTS: FIRST AMENDMEN T IMPLICATIONS FOR HIGH SCHOOL STUDENTS ON POPULAR ONLINE SOCIAL NETWORKS, MYSPACE AND FACEBOOK By KIMBERLY ANNE LOPEZ A THESIS PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLOR IDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS IN MASS COMMUNICATIONS UNIVERSITY OF FLORIDA 2008 1

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2008 Kimberly Anne Lopez 2

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To my parents who have instilled in me the impo rtance of education and always had faith that the completion of this project was possible. 3

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ACKNOWLEDGMENTS The process of education is not an accomplis hment of solely one person. From an early age, many people have helped me and supported my endeavors. With their support, I have had the privilege to achieve the graduate level of studies I complete with this project. First and foremost, I am indebted to my pa rents for their never ending love and support. They encouraged me to set my goals high and r each for them. There have been rough times, and without my parents, I would not have reached my accomplishments. I sincerely appreciate my dedicated superv isory committee. I have had the honor of working with three faculty members whose work and guidance have inspired me since my undergraduate career. I thank Professor Julie D odd, who has encouraged me in my graduate endeavors since my first semester. I thank her fo r showing the importance of being an educator and how to incorporate my interests in my research and teaching. I thank Professor Sandra Chance, who I have had the privilege of working w ith in several capacities. I thank her for giving me the opportunity for working in The Brechner Ce nter for Freedom of Information and for her advice concerning graduate studies career opportunities, and life. I especially thank my committee chair, Pr ofessor Laurence Alexander. I am forever indebted to him for his patience and dedication in seeing me through this project. It was in part Professor Alexanders law of mass communication class that inspired me to pursue the dual degree. I thank him for being so understand ing and for his knowledgeable feedback and criticism. Of course there are friends who have supporte d me along the way. I am especially thankful for the guidance and advice of my Brechner gal pals, Ana-Klara Herring and Christina Locke. Their trailblazing has made it easy for me to follow. 4

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Last, but certainly not least, I am grateful for the support I received from my boyfriend, Maurice. It has been a privilege to have his love and support in my final year of graduate studies. His faith in me and us often provided the motiva tion to complete this project at times when I thought it was impossible. A million thanks go to these loved ones and so many more. 5

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TABLE OF CONTENTS page ACKNOWLEDGMENTS...............................................................................................................4 ABSTRACT.....................................................................................................................................8 CHAPTER 1 INTRODUCTION................................................................................................................. .....10 The First Amendment............................................................................................................ .12 Student Speech Rights............................................................................................................16 Tinker v. Des Moines Independent Community School District....................................17 Bethel School District No. 403 v. Fraser.........................................................................18 Hazelwood School District v. Kuhlmeier........................................................................20 Online Social Networks..........................................................................................................23 Research Questions............................................................................................................. ....29 Methodology...........................................................................................................................30 Thesis Outline.........................................................................................................................32 2 LITERATURE REVIEW...........................................................................................................33 The First Amendment and Students.......................................................................................33 Student Speech on the Internet...............................................................................................41 Online Social Networks..........................................................................................................52 Conclusion..............................................................................................................................57 3 CASE LAW................................................................................................................................58 Student Speech at the Supreme Court....................................................................................58 Student Speech Trilogy...................................................................................................58 Tinker v. Des Moines...............................................................................................59 Bethel School District No. 403 v. Fraser.................................................................65 Hazelwood School District v. Kuhlmeier................................................................71 Other Supreme Court Student Speech Cases...................................................................77 Student Speech on the Internet...............................................................................................84 4 ONLINE SOCIAL NETWORKS CASES................................................................................105 Online Social Networks in Court..........................................................................................105 Students and Online Social Networks..................................................................................109 J.S. v. Blue Mountain School District...........................................................................109 A.B. v. Indiana...............................................................................................................112 Requa v. Kent School District No. 415.........................................................................114 Layshock v. Hermitage School District.........................................................................116 Conclusion............................................................................................................................122 6

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5 ANALYSIS AND CONCLUSION..........................................................................................123 Research Summary...............................................................................................................123 Analysis....................................................................................................................... .........128 Research Question 1......................................................................................................128 Research Question 2......................................................................................................131 Research Question 3......................................................................................................135 Recommendations................................................................................................................ .137 Conclusion............................................................................................................................142 Need for Further Research....................................................................................................143 LIST OF REFERENCES.............................................................................................................146 BIOGRAPHICAL SKETCH.......................................................................................................149 7

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Abstract of Thesis Presen ted to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Master of Arts STUDENT SPEECH RIGHTS: FIRST AMENDMEN T IMPLICATIONS FOR HIGH SCHOOL STUDENTS ON POPULAR ONLINE SOCIAL NETWORKS, MYSPACE AND FACEBOOK By Kimberly Anne Lopez May 2008 Chair: Laurence B. Alexander Major: Mass Communication Online social networks such as MySpace and Facebook have garnered great popularity over the past few years. As with other ne w communicative technologies, the online social networks have brought about questions concerni ng the First Amendment. Free speech on these online social networks has become an issue in high schools across the nation. Thus, the main question is whether students enjoy free sp eech rights on online social networks. The study used a legal research methodology to determine what types of speech are protected on online social networ ks, what standard courts have employed in evaluating student speech on online social networks, and whether c ourts had relied upon First Amendment theories in reaching these decisions. Results showed that there is little guidan ce from the courts involving online social networks. Rather, any discussion of student sp eech on online social networks relies on the holdings of what is referred to as the stude nt speech trilogy. The st udy found that these three cases handed down from the U.S. Supreme Court over a span of twenty years provide a starting point in determining when school officials can pu nish or regulate student speech on online social 8

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networks. However, the study also reveals that a recent decision of the U.S. Supreme Court may change the landscape by which courts inte rpret and decide student speech cases. Relying on the available student speech jurisp rudence, the study conc ludes that the U.S. Supreme Courts standard of mat erial and substantial disruption is the appropriate standard to apply to student speech cases involving online soci al networks. This standard allows courts to recognize student free speech rights while allowing school officials to maintain control of the educational process. 9

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CHAPTER 1 INTRODUCTION Justin Layshock was a seventeen-year-old senior at Hickory High School, Hermitage, Pennsylvania, when his out-of-school conduct on a Web site led to in-school punishment.1 Justin created what he characterized as a parody prof ile of Eric Trosch, pr incipal of Hickory High.2 Justin created the profile on MySpace3 using his grandmothers computer at her home, during non-school hours.4 The profile included nonsensical an swers to silly questions and crude, juvenile language.5 Three more MySpace pages containing unflatteri ng profiles of Trosch emerged, but their authorships were unknown.6 The profiles led Trosch to convene a teachers meeting where he became very emotional and told the group that there was a disruption.7 An investigation ensued where approximately twenty students were referred to the principals office because they made a conversation, joke, or disruption in class related to the profile.8 Trosch limited computer use at the school for a period of six days, includi ng canceling computer programming classes.9 School administrators sought to completely block students from accessing MySpace and contacted MySpace directly to disable the profiles.10 1 Layshock v. Hermitage School District, 496 F. Supp. 2d 587, 591 (W.D. Pa. 2007). 2 Id 3 For a detailed explanation and discussion of MySpace, see Online Social Netowrks, infra 4 Layshock 496 F. Supp. 2d at 591. 5 Id 6 Id 7 Id at 592. 8 Id 9 Id 10 Id 10

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Trosch and the school district imposed punishme nt on Justin for the creation of his parody profile. Justin received a ten-da y, out-of-school suspension for a lleged violations of the school districts disciplinary codes.11 In addition, Justin was placed in the high school alternative curriculum, banned from attend ance or participation in any events sponsored by the school district, and prohibited fro m participating in his hi gh school graduation ceremony.12 Justin filed a lawsuit against the school di strict claiming such punishment violated his rights under the First Amendment to the U.S. Constitution.13 The U.S. District Court for the Western District of Pennsylva nia found that the school distri ct failed to show a causal relationship between Justins off-campus conduct and any subs tantial disruption of school operations.14 Accordingly, the court stat ed the schools right to maintain an environment conducive to learning did not trump Justins Fi rst Amendment right to freedom of expression.15 Thus, the District Court agreed with Justin and found he was entitled to summary judgment on his First Amendment claim.16 The story of Justin is illustra tive of the current struggle to fi nd a balance between a school administrators authority and a students right to fr ee expression when dealing with student expression on the Internet. Adding to the str uggle is the recent phenomenon of online social 11 Id at 593. The alleged violations of the school district policies were described as follows: Disruption of the normal school process: Disrespect: Harassment of a school administrator via computer/Internet with remarks that have demeaning implications: Gross misbehavior: Obscene, vulgar and profane language: Computer Policy violation; (use of school pict ures without au thorization). Id 12 Id at 593-94. 13 Id at 594. 14 Id at 601. 15 Id 16 Id at 603. 11

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networks, such as MySpace. This thesis will explore the rationales and arguments surrounding a students First Amendment rights and school author ity in the context of online social networks. The First Amendment Forty-five words of the U.S. Constitution pr ovide citizens with the right to free speech. The First Amendment reads in pertinent part: Congress shall make no law abridging the freedom of speech.17 What these words are intended to protect and the scope of their protection is the subject matter of many debates among scholars and citizens. Several theories of the First Amendment have arisen throughout its history, a nd such theories may provide a rationale for protecting or limiting student speech on the Internet or on online social networks. One classical approach to the First Amendment rests on the notion that truth is discovered through its competition with falsehood for acceptance.18 This classical marketplace of ideas theory holds that truth is able to outshine fa lsity. The marketplace of ideas theory makes several assumptions in its rationale. John Stuart Mill as serted these assumptions in his seminal piece On Liberty.19 First, the theory assumes that the truth must be objective and discoverable.20 The truth would not be able to win over falsity if it were created or chosen, or if it were not there to be seen.21 Second, to obtain the truth, people must have the capacity to correctly perceive truth 17 U.S. CONST. amend. I. 18 C. Edwin Baker, Scope Of The First Amendment Freedom of Speech, 25 UCLA L. REV. 964, 967 (1978)[herein cited as FREEDOM OF SPEECH]. 19 J.S. MILL, ON LIBERTY (1956)[herein cited as ON LIBERTY]. 20 See id at 26. 21 Baker, note 18 supra. 12

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and reality.22 Thus, given these assumptions, the pr esentation of conflicting arguments and insights aids people in discovering th e truth in each, different position.23 The Supreme Court has advanced the marketpl ace of ideas theory in determining what speech is protected.24 The Court has often defined protec ted speech within the marketplace of ideas as that speech that brings about political and social change.25 Thus, Justice William Brennan wrote that obscenity is not constitutionally protected in th at it does not contribute to the marketplace of ideas because it is without redeeming social importance.26 Likewise, Justices Louis Brande is and Oliver Wendell Holmes asserted that the ultimate good desired is better reached by the free trade of ideas.27 At the heart of the justices discussion of the marketplace of ideas theory, they introduc ed another theory that conceivably will achieve the same result. The justices created a clear a nd present danger test in order to prevent the suppression of speech on the basis of irrational fears.28 The Brandeis and Holmes test is then in essence a reiteration of the market place of ideas theory. If the spe ech lacks a present danger, then the gravity of the speechs perceived evil is irre levant because people have the right to choose.29 The evil must be accepted if pe ople choose it after hear ing both sides; but both sides must be 22 Id 23 Id 24 Id at 968. 25 Id at 970. 26 Id at 970, citing Roth v. United States, 354 U.S. 476, 484 (1957). 27 Id at 968, citing Whitney v. California, 274 U.S. 357, 375 (1927)(Brandeis & Holmes, JJ., concurring), overruled Brandenburg v. Ohio, 395 U.S. 444 (1968); Abrams v. United States, 250 U.S. 616, 630 (1919)(Holmes & Brandeis, JJ., dissenting). 28 Id 29 Id 13

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available for the marketplace of ideas theory to flourish.30 Thus, the marketplace of ideas theory supports the entry of all ideas in the inte rest of allowing the truth to prevail. It also is widely accepted th at individual self-ful fillment is a fundamental purpose of the First Amendment.31 Influential First Amendment schol ar Professor Thomas Emerson named self-fulfillment as one of four values of the First Amendment. 32 Advanced as the liberty model, this notion of the First Amendment believes that pe ople fulfill their role in a democratic society as equal, rational and au tonomous moral beings.33 Participants exercise their rights in the First Amendment as a means of defining, de veloping, or expressing ones self.34 Thus, the First Amendment has been seen to serve society and the individual. By protecting speech, various ideas and opinions are allowed to enter the marketplace of ideas. Without free speech, the truth would lose to fals ity. The First Amendment serves the individual by protecting the right to develop and express ones self. These theories the marketplace of ideas theory and the liberty model provide a basis for understanding student speech rights. First, the marketplace of ideas th eory mirrors the mission of pub lic school education by exposing students to a variety of ideas a nd teaching students to discern the truth for themselves. Second, the liberty model may provide a justification for a llowing students to have free speech rights. By voicing their opinions and concerns in various forums, such as online social networks, students 30 See id 31 See id at 992. 32 T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 6-7 (1971). The other three values were (1) advancement of knowledge and discovery of truth, (2) participation in decision making by all members of society, and (3) achievement of a more adaptable, stable community. Id 33 FREEDOM OF SPEECH, note 18 supra at 991. 34 See id at 991. 14

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play a role in a democratic society. Whether thes e theories and rationales have been applied to student speech rights will be looked at in this thesis. It is also important to note that beginning in 1997, the U.S. Supreme Court has begun to interpret the First Amendment in the context of the Internet.35 A battle over the constitutionality of the Communications Decency Act of 1996 (CDA),36 led the Court to its first detailed discussion of the Internet in Reno v. ACLU .37 At that time, the Internets most prevalent services were noted to be e-mail, automatic list servi ces, newsgroups, chat rooms, and the World Wide Web.38 With these features, the Court recognized the Internet was a unique and wholly new medium of worldwide human communication.39 The new medium provided endless opportuni ties for readers and publishers alike, according to the Court. First, from the readers perspective, the Internet was comparable to a library including millions of readily available and indexed publications and a mall offering goods and services.40 From the publishers point of view, the Internet provided a vast platform from which to address and hear from millions of readers, viewers, researchers, and buyers.41 However, with Web publishing being so simp le, the Court realized that indi viduals and small organizations 35 E.g. Reno v. ACLU, 521 U.S. 844 (1997). 36 In summary, the Communications Dece ncy Act of 1996 (CDA) sought to protect minors from indecent and patently offensive communications on the Internet. Id at 849. The Court ultimately held that the statutory provisions of the CDA abridged the freedom of speech protected by the First Amendment. Id at 37 See id at 849-53. 38 Id at 851. 39 Id at 850. 40 Id at 853. 41 Id 15

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were using the Web to publish the equivalent of individualized newsletters.42 Thus, in the Courts view, the Internet provided diverse content and communication of all kinds.43 However, the Internet did not have the same f actors of the broadcast medium as to justify regulations similar to those imposed on broadcast media.44 First, the Internet could not be considered a scarce commodity.45 Rather, it provides relatively unlimited, low-cost capacity for communications of all kind.46 Second, the Internet is not as in vasive as radio or television.47 The content of the Internet is seldom encountered by accident, but rather requires some action by the individual in order to access it.48 As such, the Court found that the Internet should not be subject to government superv ision and regulation attended to the broadcast industry.49 Accordingly, the Court employs First Amendmen t scrutiny of the highest order to Internet communications.50 Student Speech Rights The role of the First Amendment in student education is also a t opic of much debate among scholars. The Supreme Court jurisprudenc e on the topic relies on three cases spanning twenty years. The three cases are often referre d to by scholars as the student speech trilogy. Any discussion of student speech rights begins with these three cases. 42 Id 43 Id at 870. 44 See id at 869. 45 Id at 870. 46 Id 47 Id at 869. 48 Id 49 Id 50 See id at 870. 16

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Tinker v. Des Moines Independent Community School District51 In 1968, the U.S. Supreme Court heralded the famous statement: It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.52 The statement has been the premise for arguments that students enjoy First Amendment and other constitutional rights.53 The statement and th e case are renowned by scholars to be the highpoint of stude nt rights at the Supreme Court.54 The issue considered by Tinker was whether punishing students for wearing black armbands violated the students First Amendment rights.55 Five students in the Des Moines school district decided to pub licize their objections to th e Vietnam War by wearing black armbands.56 The students wore the bands to their re spective schools and were suspended by the school principals.57 The students were told that they were suspended from school until they would come back without the armbands.58 The students had planned to wear the armbands until New Years Day, and, accordingly, did not re turn to school until after New Years Day.59 A complaint was filed in the U.S. Dist rict Court on behalf of the students.60 It sought an injunction restraining school offi cials and the school district from disciplining the students and 51 For a more detailed discussion on Tinker see Chapter 3, infra 52 Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1968). 53 See e.g., Nadine Strossen, Students Rights and How They Are Wronged 32 U. RICH. L. REV. 457 (1998). 54 See e.g. Erwin Chemerinsky, Students Do Leave Their First Amendment Rights at the Schoolhouse Gates: Whats Left of Tinker? 48 DRAKE L. REV. 527 (2000). 55 Tinker 393 U.S. at 504. 56 Id 57 Id 58 Id 59 Id 60 Id 17

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sought nominal damages.61 The District Court dismisse d the complaint and upheld the constitutionality of the school authorities action.62 On appeal, the Eighth Circuit U.S. Court of Appeals was divided, and the District Courts decision was accordingly affirmed.63 The U.S. Supreme Court granted certiorari.64 The U.S. Supreme Court found that the wearing of the armbands did not create a material and substantial interference with schoolwork or discipline.65 Thus, the Court declared the school districts policy against the armbands and th e discipline actions take n against the student unconstitutional.66 The Court held that absent a showing of constitutionally valid reasons to regulate their speech, students are en titled to freedom of expression.67 Therefore, from Tinker it is derived that students have a constitutional right to freedom of expression in school, unless it creates a material and s ubstantial interference with schoolwork or discipline.68 Bethel School District No. 403 v. Fraser The second case of the U.S. Supreme Cour t student speech trilogy stemmed from a students speech during a student government election campaign.69 Matthew Fraser a student at Bethel High School in Washington, delivered a speech nominating a classmate for a student 61 Id 62 Id at 505. 63 Id 64 Id 65 Id at 509. 66 Id at 514. 67 Id at 511. 68 Id 69 See Bethel School District No. 403 v. Fraser, 478 U.S. 675, 677 (1986)(herein cited and referred to as Fraser). For a more in-depth discussion of Fraser see Chapter 3, infra 18

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elective office.70 Attendance at the assembly where Fras er delivered the speech was mandatory and approximately six-h undred students attended.71 During the speech, Fraser referred to the student candidate in terms of an elaborate, graphic, and explicit sexual metaphor.72 Several teachers reported Frasers conduct and the day fo llowing the speech, Fraser was called into the assistant principals office.73 Fraser was notified that the school considered his speech to be in violation of a disciplinary rule prohibiting the use of obscene language.74 Fraser was suspended for three days and was removed from a list of graduation speaker candidates.75 Fraser sought review of the disciplinary action, but the school grievance procedures found the speech to fall within the ordinary meani ng of obscene as used in the disciplinary rule.76 Fraser brought suit in the U.S. District Court for the Western Di strict of Washington alleging a violation of his First Amendment right to free speech.77 The District Court held that the schools disciplinary action violated Frasers right to freedom of speech under the First Amendment.78 The school district appealed, and the U.S. Court of Appeals for the Ninth Circuit affirmed the District Courts judgment.79 The Ninth Circuit held that Frasers speech was indistinguishable 70 Id 71 Id 72 Id at 677-78. 73 Id 74 Id The disciplinary rule provided: Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures. Id 75 Id 76 Id at 679. 77 Id 78 Id 79 Id 19

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from the black armbands in Tinker .80 The school district again appealed, and the U.S. Supreme Court granted certiorari.81 The Court held that the First Amendmen t does not prevent school officials from prohibiting vulgar and lewd speech in orde r to carry out its educational mission.82 The Court found that it was appropriate for the school to disa ssociate itself to make a point to students that vulgar speech and lewd conduct is inconsistent with the values of public education.83 The Court distinguished Frasers case from Tinker because Fraser was not penalized for any political viewpoint.84 Thus, the Court agreed with the school ad ministrators and held the school district acted entirely within its permissible authority in imposing sanctions against Fraser for his offensively lewd and indecent speech.85 Hazelwood School District v. Kuhlmeier The last case of the recognized student trilogy was decided by the U.S. Supreme Court in 1988, after a group of students broug ht an action against their school for censoring the student newspaper.86 Three student staff members of the Sp ectrum newspaper at Hazelwood East High contended that school officials violated their First Amendment rights by deleting two pages of articles from a 1983 issue of the newspaper.87 The school principal deleted pages that included 80 Id 81 Id at 680. 82 See id at 685. 83 Id 84 Id at 685. 85 Id 86 Hazelwood v. Kuhlmeier, 484 U.S. 260, 262 (1988). For a mo re in-depth discussion of Hazelwood see Chapter 3, infra 87 Id 20

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two stories; one story descri bed three students experience with pregnancy and the other discussed the impact of divorce on students.88 The three students filed a complaint in the U. S. District Court seeking a declaration that their First Amendment rights had been violated, injunctive relief, and monetary damages.89 The District Court found no violation of the First Amendment and, accordingly, denied the injunction.90 On appeal, the Eighth Circuit U.S. Cour t of Appeals reversed and found that the publication was a public forum, thus precluding school officials from ce nsoring its contents unless it was necessary to avoid material and substantial interference with school work or discipline or the rights others.91 The Eighth Circuits decision was appealed, and the U.S. Supreme Court granted certiorari.92 The U.S. Supreme Court ruled in fa vor of the school administration.93 The Court refused to apply the rule from Tinker because it found the newspaper to be school sponsored.94 The Court held that school administ rators do not offend the First Amendment by exercising editorial control over the style and content of student speec h in school-sponsored expressive activities so long as their actions are reasonably re lated to legitimate pedagological concerns.95 With the Court leaving the terminol ogy of the rule undefined, the case has continued to be debated in the realm of student expression ri ghts. 88 Id at 263. 89 Id at 264. 90 Id 91 Id ., citing 795 F. 2d 1368 (8th Cir. 1986)(quoting Tinker 393 U.S. at 511). 92 Id at 266. 93 Id 94 See id at 272. 95 Id at 273. 21

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None of the cases of the student speech tr ilogy involve student speech online, nevertheless student speech on online social networks. While lower courts have ta ken on issues involving online social networks, and more broadly stud ent speech on the Internet, the student speech trilogy still remains the supreme law of the land. Thus, the three cases lik ely lay the foundation a court may build upon in deciding cases involving student speech on online social networks. However, the prophecy of the student speech trilogy may be in question after the U.S. Supreme Courts ruling in Morse v. Frederick in 2007.96 In Frederick, the Court determined whether a school official could punish a student for speech during a school-sanctioned, schoolsupervised event that the school official reasonably believed promoted illegal drug use.97 The Court answered in the affirmative,98 but the scope of its holding is yet to be determined. The Frederick Court stated that the standards of the stude nt speech trilogy are not the only basis for restricting student speech.99 Furthermore, it seems that the C ourts holding relied heavily on the fact that the speech at issue was promoting illegal drug use.100 Thus, whether the Frederick ruling would be controlling in non-school-sponsored events, or in the cont ext of non-drug related speech, is yet to be determined. While it is not yet clear if Frederick changed the landscape of student speech cases, it is nonethel ess important to discuss in th e context of student speech on online social networks. 96 See Morse v. Frederick, 127 S. Ct. 2618 (2007). 97 Id at 2622. 98 Id 99 Id at 2627. 100 See id at 2628-29. 22

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Online Social Networks In recent years, a new form of communication has garnered alarming popularity among students of all ages: online social networks. As with any new technology or fad, online social networks have raised questions and concerns among parents, school administrators, law and policy makers, and the courts. The conduct of part icipants in online soci al networks has been evaluated in numerous contexts. Em ployers have looked at online soci al networks as part of their background checks. Criminal defense lawyers are us ing social networking sites to investigate witnesses.101 School administrators have policed stud ent speech on online social networks. In general, online social networks allow users to create a profile. The user can personalize the profile with a picture and pers onal characteristics such as interests, favorite music, political views, dating status, current cour ses to name a few. Usually user s can then label other users as their friend. Depending on the network, b ecoming someones friend gives a user more privileges to view the persons profile, view photos, and post me ssages to the friends profile. Within the network, there tends to be two forms of communication: posts and messages. The first allows a user to post to a friends profile. This message is viewable to the public, or, depending on the users privacy settings, only the users friends. The second messaging system creates a private message system similar to e-mail. One user will send a message to a friend and that message is viewable to only that friend. Another popular feature tends to be the ability to upload phot os to the user profile. The online social networks allow users to create online photo albums, picture slideshows, and add details about a photo. Often times a user can t ag a photo which then links different people through the photos. Also, friends can make comments about the photos within the photo albums. 101 Stephanie Francis Ward, MySpace Discovery, ABA JOURNAL (Vol. 93, Jan. 2007). 23

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There are more than three hundred known social networks online. Include d in this group is Friendster,102 LinkedIn,103 and Ringo.104 Despite the variety, it seems nothing has come close to rivaling the success and popularity of MySpace and Facebook. MySpace launched in 2004 and is headquartered in Beverly Hills, California. The Web site was partially owned by Intermix Media. When R upert Murdochs News Corporation, the parent company of Fox Broadcasting, purchased Intermix in July 2005, it was estimated that MySpace accounted for approximately $317 million of the $580 million price tag. According to Alexa Internet rankings, MySpace was the fifth most popular English-language Web site and the third most popular Web site in the United States, but it has peaked as the number one Web site in the United States at various times. On August 9, 2006, MySpace regist ered its 100 millionth user and the Web site garners new registrations at a rate of 230,000 a day. In order to register on MySpace, a user must be at least fourteen years old. MySpace gives its users the ability to customize their profiles by entering HTML code into their profile. This gives users the ability to customize their page with features such as enhanced backgrounds, music, video, and photo slideshows. Several i ndependent Web sites now offer MySpace layout design utilities that allow a user to select diffe rent options and preview their profile pages. In addition, MySpace provides typical social networ king features such as the creation of groups, messaging, and the ability to create a blog. 102 Available at http://www.friendster.com, Friendster is an online social network that was founded in 2002 by Jonathan Abrams in Moutain View, California. It is privately owned, and, prior to 2004, it was considered the top online social network service. In 2003, it reported estimated value was $53 million. 103 Available at http://www.linkedin.com LinkedIn is a business-oriented social network site that connects people and businesses by industry, functions, geography, and areas of interest. As of January 2007, LinkedIn had more than 9 million registered users across 150 industries and more than 400 economic regions, as classified by the service. 104 Available at http://ww.ringo.com Ringo is a social network based on photo sharing. It allows members to post photos and view other public photos. It has added services such as e-cards, video sharing, and photo printing. 24

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Facebook launched in February 2004 as the proj ect of a Harvard sophomore. In just a few weeks, half of Harvards undergraduate population registered on the site, and by April 2004 the site expanded to all the Ivy League schools. By December 2004, the site reached universities across the nation and had more th an 1 million registered users. In 2005, the site launched a high school version of the network and allowed high school students to join with an invitation from a registered college user. However, the invitati on system lasted only a few weeks and high school students were able to jo in freely by September 2005. Between 2005 and 2006, Facebook expanded and added universities throughout Mexico, Australia, Canada, New Zealand, and Germany. The exclusivity of university and college communities ended on September 26, 2006, when F acebook opened to any user with a valid email address. As of February 2007, only three ye ars after the sites la unch, Facebook stated it had approximately 18 million users and more than 1 billion photos posted. An estimated ninety percent of all undergraduates at colleges a nd universities where Facebook is available are registered users of the site. Of t hose users, 60 percent log on daily. Facebook creators turned down a $750-million offe r to purchase the site hoping to receive as much as $2 billion for the Web site.105 The offered purchase price exceeded the buying price of MySpace by $170 million.106 In October 2007, Microsoft agreed to pay $240 million for a 1.6 percent stake in Facebook.107 And with the popularity of these online social networks, cases involving student speech have emerged in schools, and some of these cases have reached the courts. Take for example the case 105 Brock Read, Hoping for a Bigger Offer, Facebook Founders Reject $750-Million Bid THE CHRONICLE OF HIGHER EDUCATION, 53:31 at 43 (April 7, 2007). 106 Id 107 John Letzing, Facebook CEO apologizes for handling of new ad system MARKETWATCH (Dec. 5, 2007). 25

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of A.B., a minor at Green castle Middle School, Indiana.108 In February 2006, Shawn Gobert, principal of Greencastle Middle Sc hool, was informed that a der ogatory Web page was created on the Internet concerning Matthew Ta ylor, the schools assistant principal.109 In investigating the derogatory Web page, Gobert also uncovered a profile page on MySpace purporting to have been created by Gobert.110 It was later discovered that a stude nt, referred to as R.B., had created the profile page and had invited several of her friends, including the plaint iff, A.B., to access the profile.111 A.B. made several postings to R.B.s created profile page. A.B. argued that the posting wa s protected political speech.112 She asserted that her comment was made in a public forum and criticized Gobert as a state actor and his implementation of a school policy proscribing piercings.113 As such, A.B. asserted that the posting was within the bounds of protected political speech.114 The appeals court found that expressive activ ity is political if it provides comment on government action or criticizes a government official.115 Further, the court emphasized that school authorities are state actors fo r purposes of freedom of expression.116 The court held that while it had little regard for A.B.s use of vulgar epithets, her message was political speech 108 A.B. v. Indiana, 2007 Ind. App. LEXIS 694 (Ct. App. Ind. 2007). 109 Id at *2. 110 Id 111 Id 112 Id at *6. 113 Id. at *6-*7. 114 Id 115 Id. at *11. 116 Id at 12 (citing New Jersey v. T.L.O ., 469 U.S. 325; Tinker v. DesMoines Independent Community School District 393 U.S. 503). 26

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because it focused on criticizing a state actors actions in regards to enforcing school policy.117 Thus, the appellate court reversed and remanded with instructions to vacate the adjudication.118 The Indiana court did not evaluate whether the conduct of school administration was proper in monitoring or disciplining students for conduct on online social networks, but the cases holding demonstrates that perhaps student s are protected by the First Amendment, which protects a right to pol itical speech. But the protection ma y be limited. A district court in Washington found a students conduct, which in cluded videotaping a teacher and linking the video to the students MySpace profile, to be within the schools authority to regulate in order to provide safe and supportive learning and work ing conditions for students and faculty alike.119 Gregory Requa, a senior at Kentridge High School, received a disciplinary suspension from the school district and filed suit alleging violations of his First Amendment rights and his constitutional right to due process of law.120 The suit stemmed from video footage taken on at least two separate occasions of a teacher a nd her classroom during Requas junior year.121 The video footage was edited, graphi cs and music were added, and th e resulting footage was posted on the YouTube.com website.122 The video featured (1) footage of a student making rabbit ears and pelvic thrust behind the teachers back and (2) footage of the teachers buttock accompanied by graphics stating Caution Boot y Ahead and a booty rap song.123 Requa maintained that he 117 Id at *13. 118 Id at *14. 119 Requa v. Kent School Dist. 492 F. Supp. 2d 1272, 1283 (W.D. Wash. 2007). 120 Id at 1272. 121 Id 122 Id at 1274. 123 Id at 1280. 27

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played no role in the capturing or editing the video footage.124 He did admit to posting the video link to his MySpace profile, but re moved the link when he learned from news reports that the video could be viewed as harassment.125 The school principal issued a forty-day suspension126 and Requa appealed pursuant to Washingtons Administrative Code.127 Requa asserted that he wa s being punished for his offcampus activity because the school had insufficient evidence to connect him to the secret, inclass filming of the teacher.128 The court found that there was no evidence to suggest Requa was being singled out for anything other than the classroom activity for which he was accused.129 The district did not demand Requa remove the YouTube video, nor did it prohibit him from posting the MySpace link. re130 Requa argued, however, that even if the school district could prove his involvement in the production and posting of the video, the video is protected speech.131 The court held that the First Amendment doe s not extend its coverage to disruptive, inclass activity of this nature.132 The court recognized that the ability of students to critique their teachers is a legitimate and important right; however, it is one that must be balanced against the schools primary responsibility to provide a safe and supportive learning and working 124 Id at 1274-75 125 Id at 1274. 126 A letter to Requas parents allowed for twenty days to be held in abeyance if Requa completed a research paper while on suspension. Id at 1275. 127 Id. Plaintiff was not the only student issued a suspension. Id The school principal sent letters to the parents of the students whom he had determined were responsible from the video. Id The findings were based on the principals investigation working backward from a student filmed standing behind the teacher. Id at 1274. 128 Id at 1278. 129 Id. 130 Id 131 Id at 1279. 132 Id at 1281. 28

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environment.133 Ultimately, the court decided the balan ce of interests tipped in favor of the school district because the disruptive, in-class activ ity of secretly videotaping the teacher was not protected by the First Amendment. The court did note, however, th at the off-campus activity of posting a link to the video on the Internet was protected out-of-school expression.134 Thus, online social networks and student spee ch and expression on online social networks are a hotbed for discussion and debate. The Web sites have great economic impacts for investors and advertisers and arguably have become one of the most common forms of communication among students from middle school through college With school administrators taking notice of student conduct on online social networks, an issue arises as to whether schools can control student speech on these Web sites. The issue is a debate that has reache d some courts and is likely to reach many more in the coming years. As such, it would be helpful if the available body of knowledge provided guidance on how courts ev aluate, or perhaps would evaluate, student speech issues on online social networks. In other words, if a student like Justin Layshock or Gregory Requa came before a court, would the court reach th e same end result? Research Questions This thesis seeks to answer th e following research questions: 1. What types of student speech enjoy Firs t Amendment protection on online social networks? 2. How have court balanced the interests of student speech rights on online social networks against a schools educational mission? 3. How do the court decisions involving student speech and online social networks advance or hinder theories of the First Amendment? 133 Id at 1283. 134 Id 29

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Methodology To answer the research ques tions, this thesis employed a legal research methodology that looked at relevant case law. The online legal databases Westlaw and Lexis were used as the primary sources of research. State and federal case law databases were searched using the following search strings: high school w/s135 student w/p136 internet and137 first amendment; facebook or myspace; atleast2(facebook)138 or atleast2(myspace). These search strings were developed based on ke y words applicable to this thesis. First, high school w/s student provide d a narrowed search that removed college cases and others. Second, using the terms Internet and First Amendment broadened the search to include case law that does not deal specifically with online social networks, but may nonetheless be precedent in these cases. To find cases dealing specifica lly with online social networks, the terms MySpace and Facebook were inserted in the sear ch strings. To find the most relevant cases, or those cases where the online social network was the main issue, the atleast n function was used to ensure the online social network was di scussed more than one time in the court opinion. Beyond the online legal databases, the resources of the Student Press Law Center also were relied upon. The Student Press Law Center, available at http://www.splc.org provides visitors with numerous resources, news stories, and an alysis involving student speech issues. One 135 This connector commands the system to find the word proceeding the connector within the same sentence as the word preceding the connector. 136 This connector commands the system to find the word proceeding the connector within the same paragraph as the word preceding the connector. 137 When using the Westlaw database system, the term and is replaced by an ampersand, &, to comply with the search functions of the Westlaw system. 138 The atleast n function commands the system to retrieve documents that contain the word in parenthesis at least n number of times. Thus, in the used sear ch string, all documents retrieved refe renced Facebook or MySpace at least two times. The atleast n function is exclusive to Lexis, thus, this search string was not inputted to Westlaw. 30

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resource, SPLC Guide to Off-Campus Web Sites provided a listing of case law involving offcampus student speech on the Internet. Those cases listed in this resource, but not retrieved by the search strings in the legal databases, also were used. In addition, th e sites News Flashes archives were searched using the terms on line social network, myspace, and facebook. These terms were used individually in the archive search to produce three, separate search results lists. The case law results were then reviewed to de termine their applicability to the research. The cases were reviewed to determine whethe r the court discussed i ssues involving student speech on online social networks or student spee ch on the Internet. Those cases that did delve into these issues were were then entered into the Shepardize feature of Lexis. This operation ensured that the case law remained good la w based on a series of indicators. All of the cases retrieved and relied upon in this thesis returned with good law indicators. In other words, none of the cases have been spec ifically overturned on the student speech issues. Thus, these cases were then used and analy zed in this thesis to reach a conclusion. The analysis of the retrieved cases included an in-depth look at the facts of each case. The facts of each case are reported in great detail to determine whet her there are factual analogies between cases and whether it affects the ultimate holdings of the cases. Then, the courts analysis was reviewed to determine the holding and ruling. The specific language of the cases was used to derive the rules from these cases. In turn, the ru les derived from the cases were used to analyze current student speech issues on online social networks. Based on this analysis, this thesis concludes that courts must develop a definitive rule for student speech on online social networks and such a rule should be protec tive of student speech rights. 31

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Thesis Outline Following this introductory chapter, Chapter 2 provides a literature review of scholarly work pertaining to students First Amendment rights and student speech online. Chapter 3 reviews the relevant case law at the U.S. Supreme Court and lower court decisions involving student speech on the Internet. Ch apter 4 provides an in-depth look at the court cases, available to date, dealing with student speech on online so cial networks. Chapter 5 provides a summary of the research and an analysis of the case law pr esented in chapters 3 and 4. Finally, Chapter 5 makes a conclusion and lists areas for further rese arch regarding student speech on online social networks. 32

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CHAPTER 2 LITERATURE REVIEW Scholarly literature on online social networks has not develo ped as fast as the popularity of the online social networks. As such, many topi cs remain for scholars to research, debate, and provide answers to. Research in social scien ce is beginning to take on some of the topics; however, there is a gap in legal s ources that delve into online social network issues. At this point, any research on online social networks must rely on jurisprudence from other areas of research such as First Amendment law, student speech, and educational law. The literature in these areas provide a foundation for analyzing issues involvi ng online social networks, but there remains a need for further guidance and knowledge in this area. Thus, this thesis begins to fill a gap in the available literature regarding student speech on on line social networks. This thesis will provide an overview of the current issues arising with st udent speech on online social networks. Further, this thesis will be the first to analyze student speech on online social networks against the jurisprudence of student speech cases. Based on this analysis, this thesis will provide recommendations for analyzing th ese situations and leave a foundation for future research. The First Amendment and Students In a seminal case for student speech, the S upreme Court proclaimed: It can hardly be argued that either students or teachers shed thei r constitutional rights to freedom of speech or expression at the schoolhouse gate.139 With this proclamation, the Supreme Court made it clear that high school students are entit led to First Amendment protection. However, in the same case, the Supreme Court acknowledged that school aut horities may constitutionally regulate speech that causes a material and substantial interference.140 This language has created much debate 139 Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969). 140 Id at 511. 33

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regarding the extent to which students enjoy Fi rst Amendment protections in or outside of school. One of the most powerful arguments favoring First Amendment protection for students is the enhancement it brings to the educational process. Nadine Strossen, president of the American Civil Liberties Union, wrote in an essay that the fact schools are educating students for citizenship is reason enough for scrupulous pr otection of their C onstitutional freedoms.141 According to Strossen, the failure to protect the Constitutional freedoms of students cuts the free mind and its source and teaches students to discou nt important principles of the government as mere platitudes.142 Thirty years after Tinker renowned attorney and lega l scholar Erwin Chemerinsky analyzed student speech cases at the Suprem e Court over three decade s in a 2000 law review article titled Students Do Leave Their Firs t Amendment Rights at the Schoolhouse Gates: Whats Left of Tinker?143 Chemerinsky began with a descriptive analysis of Tinker and later compared subsequent Supreme Court and lower c ourt opinions to conclude the judiciary has not played its crucial role in protecting student speech.144 Chemerinsky decried the evolvement of courts using rational basis review in student speech cases over th e more stringent review basis outlined in Tinker .145 141 Nadine Strossen, Students Rights And How They Are Wronged 32 U. RICH. L. REV. 457, 458 (1998). 142 Id 143 Erwin Chemerinsky, Students Do Leave Their First Amendment Rights at the Schoolhouse Gates: Whats Left of Tinker? 48 DRAKE L. REV. 527 (2000). 144 Id at 546. 145 Id 34

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Chemerinsky acknowledged that the ma jority and dissenting opinions in Tinker outlined markedly different approaches to student speech.146 He classified Justice Fortas majority opinion as the speech protective model and Jus tice Blacks dissenting op inion as the judicial deference model.147 The speech protective model set forth three themes to conclude that students are entitled to freedom of expression of their views.148 First, students retain constitutional rights in school.149 Second, schools may punish stude nt speech only upon proof that the speech would substantially interfere with the schools mission or impinge upon the rights of other students.150 Finally, the third theme outlined by Chemerinsky is the need for careful judicial review to ensure a school has met its heavy burden.151 The dissenting opinion in Tinker advocated a different approach to students First Amendment rights: student speech in schools is only minimally protected by the Constitution.152 He noted that Justice Black repeatedly stat ed he believed that reasonableness was the appropriate constitutional te st for evaluating the schools regulation of student speech.153 Thus, Chemerinsky classified Justice Blacks alternat ive view as one of minimal protection demanding courts to defer to school offi cials expertise and authority.154 146 Id at 530. 147 Id 148 Id at 530-31. 149 Id at 530. 150 Id at 532. 151 Id 152 Id at 534. 153 Id. 154 Id at 535. 35

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Chemerinsky argued that the Supreme Court ha s moved closer to th e judicial deference model in student speech cases subsequent to Tinker .155 In his analysis of these cases, Chemerinsky charged that the Court adopted and followed the Tinker dissent and applied the judicial deference model. But despite the move away from the Tinker model, Chemerinsky asserted Tinker remains good law.156 He explained that the subse quent Supreme Court decisions are narrow and are limited to public schools ability to regulate speech in official programs and courses.157 Chemerinsky encouraged courts to continue their role in protecting student speech.158 Such a role ensures that school officials are not puni shing speech simply because it makes them feel uncomfortable, is critical of them, or just because they do not like it.159 He emphasized that schools cannot teach the importance of the Firs t Amendment and simultaneously not follow it.160 Thus, Chemerinsky concluded that the Courts following of Justice Blacks dissent harms students First Amendment rights.161 Chemerinsky wrote, Simply put, thirty years after Tinker, students do leave most of their First Amendment rights at the schoolhouse gate.162 Another 2000 law review article, published in the Journal of Law and Education considered the battle between school authorities and students expressive rights, but in the 155 Id at 541. 156 Id 157 Id at 542. 158 Id at 546. 159 Id 160 Id at 545. 161 Id at 546. 162 Id (italics added). 36

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context of message t-shirts.163 Like Chemerinsky, attorney Clay Weisenberger acknowledged that Supreme Court decisions after Tinker gave deference to educat ors in student expression, rather than placing a premium on free expressions as the Tinker majority did.164 However, Weisenberger argued that courts should strike a weighted balance with a preference for the First Amendment.165 Weisenberger based his assertion on a marketplace of ideas theory.166 He wrote that the primary mission of a school is to prepar e children for a self-governing adult life.167 According to Weisenberger, restricting free sp eech inhibits students from deve loping critical thinking skills.168 Free speech, however, allows students to test id eas and decide for themselves which ideas are proper.169 Further, students just as ad ults should be allowed to police their own beliefs, which cannot be done without a full exch ange of information and ideas.170 Weisenberger argued that encouraging such an exchange would allow mo re sound ideas to preva il over those that are dangerous and unstable.171 But Weisenberger did acknowledge that as violence and insolence increase in schools, courts will probably continue to defer to school authorities and allow school administrators to regain control at school s, at the expense of student expression.172 163 Clay Weisenberger, Constitution or Conformity: When the Shirt Hits the Fan in Public Schools, 29 J.L. & EDUC. 51 (2000). 164 Id at 61. 165 Id 166 Id 167 Id 168 Id 169 Id 170 Id 171 Id 172 Id 37

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The effect of violence on student speech rights was echoed by author Patricia H. Hinchey in Student Rights: A Reference Handbook published in 2001.173 Hinchey wrote that the highly publicized student shootings at Columbine High School in Littleton, Colorado, and other incidents that followed convinced the public that a wave of juvenile violence was sweeping the nation.174 As a result, school authorities began ch allenging personal choices students made in the name of safety.175 Hinchey explained that almost anything a student might wear could declared a threat to order and discipline in the school: a Star of David, a black coat, a shirt proclaiming the wearer to be a vegan. be 176 But these reactions from school authorities were not limited to dress choices following th e publicized acts of violence. 177 School authorities made efforts to control every element of student activity and expressi on, including what students said and did on their own time, outside of school.178 Accordingly, Hinchey concluded that an area of contention likely to escalate is to what extent scho ols can interfere with what students do on their own time in places outside the schoolhouse, spec ifically on student-posted Web sites in a postColumbine era.179 Andrew D.M. Miller provided a thorough analysis of the U.S. Supreme Courts student speech trilogy and pointed to the difficulties in defining the specific elements of the Courts promulgated rule.180 Miller classified the rule and analysis of the student speech trilogy as one 173 PATRICIA H. HINCHEY, STUDENT RIGHTS: A REFERENCE HANDBOOK 39 (ABC-CLIO 2001). 174 Id 175 Id 176 Id 177 Id 178 Id 179 Id at 40. 180 Andrew D.M. Millier, Balancing School Authority and Student Expression 54 BAYLOR L. REV. 623 (2002). 38

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step forward, two steps back for student speech rights.181 According to Miller, in dealing with students First Amendment rights and other c onstitutional guarantees th e U.S. Supreme Court has altered its focus from the rights of the in dividual toward the im portance of school power.182 However, to combat arguments that the Supreme Court decisions following Tinker in the trilogy overruled Tinker, M iller argued that the Fraser and Kuhlmeier courts merely defined the preexisting limits of Tinker.183 In essence, Miller co ncluded that the remaining rule is that student speech that is neither lewd nor obscene can be subject to viewpoint-based regulation only if the school district can demonstrate that such a viewpoint will cause a substantial and material disruption in the functioning of the school or will impinge upon the rights of others.184 Miller further explained and stated that if stude nt expression is lewd or obscene, the per se rule is that a school can prohibit such speech outright.185 If the student expression is schoolsponsored, it can only be regulated if such regulation is ration ally related to a legitimate educational concern; a school need only satisfy a rational basis test to exert authority on schoolsponsored expression.186 All other student expression is subject to Tinker' s substantial and material interference test, unless it is subjec t to a regulation permitted by a state arm beyond the school.187 Miller acknowledged that th e foregoing framework is not novel, but that defining its rules is. Thus, Miller turned his research to answer the following: When is expression lewd or obscene? Does lewdness or obscenity include the amorphous, and ever so troublesome, "plainly 181 Id at 634. 182 Id at 637. 183 Id at 641. 184 Id at 634. 185 Id. at 649. 186 Id at 650. 187 Id 39

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offensive" kinds of speech? What about speech that is contradictory to the schools' "basic educational mission?" When is expression school-sponsored?188 In response to these questions, Miller conclude d that in order for st udent expression to be lewd, obscene, or indecent, it must have a prurient element.189 A school must demonstrate that the expression either caused or can reasonably be anticipated to cause a material and substantial inference with the schools mission before any punishment may be implemented.190 In response to the school-sponsored question, Miller provided the definition for school sponsored speech as student expression [that] exists only when a reasonable member of the community would perceive the expression to bear the imprimatur of the school.191 Thus, with these definitions, Miller provided a compromise betw een students rights to free expression and the schools need for authority.192 Such a framework provides workable definitions in attempting to predict the outcome of recent cases involving studen t speech on online social networks. Since the Supreme Court decided Tinker many scholars have wei ghed in on whether the Court still champions a students right to free expression. Many scholars ag ree that subsequent decisions greatly limit the Tinker holding, but many agree that Tinker remains good law. Others argue that the limitations placed subsequent to Tinker provide deference to school administrators and accordingly weigh against student speech. T hus, while the literature easily defines the seminal cases in terms of students freedom of expression, what the future holds and how courts 188 Id 189 Id. at 674. 190 Id 191 Id 192 Id 40

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will decide student expression cases is uncertain.193 Such uncertainty is further complicated by the impact of new, communicative technology.194 Student Speech on the Internet The Internet has raised many questions regard ing how far school administrators can reach into students private lives.195 Student rights on the Internet gene rally arise in two questions: (1) what are and arent students free to say on the In ternet, and (2) what are and arent they free to read on the Internet?196 Scholars have begun to study bot h questions and provide possible answers. However, with court cases emerging acr oss the nation, and with no U.S. Supreme Court cases directly addressing these points, it remains unclear what rights students are afforded on the Internet. For the purpose of this study, the available literature attempting to answer the first question was reviewed. In a 2000 law review note, author Jennifer Kath leen Swartz relied on educational theories to assert that the Internet e nhanced the educational process.197 Swartz premised her arguments on the educational theo ries of John Dewey, as set forth in Democracy and Education .198 Swartz relied on Deweys connection between learning in school and the community in which children are raised.199 According to Dewey, communication provi ded the connection between the school 193 See PATRICIA H. HINCHEY, STUDENT RIGHTS: A REFERENCE HANDBOOK 31 (ABC-CLIO 2001). 194 Id 195 Id at 42. 196 Id 197 Jennifer Kathleen Swartz, Beyond The Schoolhouse Gate s: Do Students Shed Thei r Constitutional Rights When Communicating To A Cyber-Audience? 48 DRAKE L. REV. 587 (2000). 198 Id at 588. 199 Id 41

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and the community, and the connection wa s necessary for schools to succeed.200 Swartz argued that the Internet serves as the communicative device that connects the sc hool and community as the book or letter did in Deweys time.201 Unlike the older forms of communication, the Internet provides students the ability to communicate with an extended comm unity much larger than their local school and hometown.202 Further, Swartz saw the Internet as a vehicle to satisfy Deweys two criteria to measure the worth of the educational pro cess in a democratic society.203 First, Dewey measured the educational process by the extent in which the interests of a group are share by all its members.204 Swartz projected the Internet could give value to this crite rion because it gives students the ability to access la rge amounts of shared informati on that are accessible to other members of society.205 The second measure of educational worth employed by Dewey was the fullness and freedom to which groups interact.206 The Internet, according to Swartz, provided students a cyber-world of opportuni ties to interact with other members and groups of society. However, Swartz warned that this criterion could only be met if students c ould fully and freely interact through the Internet.207 200 Id 201 Id 202 Id 203 Id at 592-93. 204 Id at 592 ( citing JOHN DEWEY, DEMOCRACY AND EDUCATION 115 (MacMillan Co. 1955)(1916). 205 Id 206 Id at 593. 207 See id 42

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Swartz recognized that the Internet as a limitle ss medium raised questions about the scope of a schools control over stude nt speech on the Internet.208 With 95 percent of all schools connected to the Internet at the time,209 Swartz rationalized that students had a powerful communication tool that allows their speech to be distributed in almost any conceivable manner.210 With such access available at school, Swartz stated it was foreseeable that a student would create a Web page, or other online co mmunication, at school a nd post it through the schools domain.211 With such possibilities, Swar tz found the standards provided by Tinker, Fraser, and Hazlewood were inadequate standards of prot ecting students rights of expression when using the Internet at school.212 Swartz asserted that a new standard is needed to evaluate student speech on the Internet.213 Swartz found that the law was inade quate to deal with the complex ities of the Internet. Further, she argued the Supreme Court jurisprudence failed to provide an adequate standard that protects students First Amendment rights while providi ng schools with the ability to reasonably oversee potentially harmful or offensive spee ch of students through the Internet.214 Swartz proposed a new standard drawing from the student speech case trilogy. First, Swartz stated that under Tinker schools should have the ability to punish student speech that 208 Id 209 Id at 591 ( citing National Ctr. For Educ. Statistics, U.S. Dept of Educ., NCES 98-031, Internet Acess in Pubic Schools (Mar. 1998)). 210 Id 211 Id at 600. 212 Id 213 Id at 602. 214 Id at 588. 43

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materially disrupts class work, i nvolves substantial di sorder, or invades the rights of others.215 However, such punishment should be limited to speech that arises in the school.216 Thus, Swartz believed that school administrators should not be able to punish student speech arising outside of school.217 The second part of Swartzs pr oposed standard derived from Fraser. Swartz relied on Fraser to assert that schools should have the ability to limit student expression on the Internet that uses lewd, sexually explicit, or vulgar language, when using the schools Internet access.218 Third, Swartz asserted schools should not be allowed to exercise editori al control over student speech that originates on school grounds, for inst ance from a school computer, in the same way a school may exercise editorial control over a student newspaper under Hazlewood.219 Moreover, Swartzs standard advocated that the school should not exercise editorial control over students online speech unless it clearly viol ated established school policies.220 Swartz insisted that the elimination of th e schools editorial c ontrol on online student speech would allow students to exercise th eir First Amendment rights on the Internet.221 Such ability is given without taking away s ubstantial school control because under Tinker schools would remain able to punish student speech th at causes a material disruption or invades the rights of others.222 In addition, Fraser would allow punishment for indecent, sexually explicit, or 215 Id at 602. 216 Id 217 Id 218 Id at 603. 219 Id 220 Id 221 Id at 604. 222 Id 44

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lewd online speech.223 But Swartzs standards allow for any form of punishment or control when the student online speech occurs at school, irrespective of the sp eechs subject matter.224 Professor Clay Clavert, however, asserted that off-campus justice not on-campus punishment may be pursued for off-campus expression.225 According to Clavert, there are very few circumstances that provide justificati on for school administrators to punish students for their off-campus expression.226 Calvert viewed in-school punish ment for off-campus speech as providing a third arm in addition to criminal and civil charges by which to punish students; thus, creating a triple threat.227 Clavert proposed a five-factor process thr ough which courts and school administrators should analyze questions of free speech involving student-created Web sites.228 The factors were: (1) students place of enrollment, (2) place of origin of speech, (3) place of download of speech, (4) content of the speech, and (5) presence or absence of a site disclaimer or warning.229 Calvert recognized that some cases need not involve an analysis of all five factors, such as in the case of students enroll ed in a private school.230 223 Id 224 Id at 603. 225 Clay Clavert, Off-Campus Speech, On-Campus Puni shment: Censorship Of The Emerging Internet Underground 7 B.U.J. SCI. & TECH. L. 243, 256 (2001). 226 Id at 252. 227 Id at 251. Calvert termed school punishment a triple th reat because it is a third possible form of punishment following civil and criminal liability outside of the school administrative process. 228 Id at 262. 229 Id 230 Id Calvert stated that an analysis of determining the st udents place of enrollment would be unnecessary in the case of a student enrolled in a private school. Id 45

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Calverts first factor simply considered wh ether a student attends a public or private school.231 If a student is enrolled in a private school then there is no violation of the First Amendment because there is not a state actor, as is required to find an abridgment of a constitutional right.232 The second factor place of origin of speech looked to whether the Web site was created using sc hool facilities and computers.233 According to Calvert, schools should be able to exercise greater control a nd authority over speech created using school property.234 Calvert considered the third factor cri tical as it could poten tially give school administrators the opportunity to punish speech created off campus.235 Calverts third factor asked whether the student brought off-campus speech on to campus.236 In other words, if a student intentionally downloaded his off-campus-created Web site while in school or encourag other students to view it while in school, then the school would have greater authority in ed punis violence.238 Calvert asserted that if a students Web site fell into the category of threats, then hing the speech.237 The final two factors of Calverts analysis i nvolved the content of the students Web site For the fourth factor, Calvert considered whethe r the students Web site contained a threat of 231 Id at 263. 232 Id ., quoting Matthew D. Bunker, Constitutional Baselines: First Amendment Theory, State Action and The New Realism, 5 COMM. L. & POLY 1, 1 (2000)(It is a truism of First Amendment doctrine that the constitutional free speech and free press clauses are triggered only by state action. That is, unless state or federal governments take some affirmative steps to limit free ex pression, the protections of the First Amendment simply do not apply to the case.). 233 Id at 264. 234 Id 235 Id at 265. 236 Id 237 Id 238 Id at 267. 46

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administrators would be with in the scope of their authority to notify the authorities.239 However if the content was a form of parody conducted so lely off-campus, it must be addressed in offcampus remedies, such as libel claims.240 Finally, Calvert provided a fifth factor that would require schools to consider whether or not th e student Web site contained a disclaimer or warning.241 Calvert wrote that such warnings tell a Web site visitor that its creator is only joking and attempts to ward off similar actio ns as those depicted on the Web site.242 While Calvert presented a five-factor analysis, he also provided other legal arguments to limit the control of school administrators against student Web sites created off campus. Calvert purported that the First Amendment should be treated by the courts in the same manner that the Fourth Amendment243 is applied to students.244 According to Calvert, the Supreme Court has ruled that the Fourth Amendment is different in public schools than elsewh ere, but the decisions do not suggest that the Fourth Amendment rights of students are diminished when they are off campus and not under the custod ial authority of the school.245 Calvert argued that the same should be true of the First Amendment rights of minors those rights should only be diminished when minors are in the role of student in a school setting.246 239 Id at 268. 240 Id at 267. 241 Id at 268. 242 Id at 269. 243 The Fourth Amendment provides The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall be violated, and no Warrants shall issue, but upon probably cause, supported by Oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. CONST. 4. 244 Clay Clavert, Off-Campus Speech, On-Campus Puni shment: Censorship Of The Emerging Internet Underground 7 B.U.J. SCI. & TECH. L. 243, 280 (2001). 245 Id 246 Id 47

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Calverts second alternative argument was based on what he considered an extraterritorial jurisdictional au thority of public schools.247 If schools were able to regulate student speech created outside of school, then in essenc e schools would gain jurisdiction to control the actions of students in their own homes.248 To illustrate the argument, Calvert created an analogy: If a parent were to create a Web site criticizing teachers, the school would not be able to punish the mother or father.249 Calvert rationalized that the aggrieved teachers could seek relief in the civil justice system.250 Likewise, the school could not punish the parents child for the parents speech.251 Calvert found the only difference between this hypothetical and a students offcampus creation of a Web site to be that th e student spends a larg e portion of the day on campus.252 Thus, Calvert asserted that allowing sc hools to punish stude nts for wholly offcampus Web sites is essentially providing schools the opportunity to stand [] like sentries monitors, in the homes of every student to monitor behavior. or hall 253 Finally, Calvert argued that allowing the cr eation of these student Web sites provided students an opportunity to vent.254 Calvert believed that many school districts have forgotten that an important function of speech is to vent and express ones emotion.255 According to Calvert, the Internet provides a new medium on which students can express their frustrations and feelings 247 Id at 281. 248 See id 249 Id 250 Id 251 Id 252 Id 253 Id at 281-82. 254 Id at 281. 255 Id 48

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in a non-violent way.256 This release provides students a s afety valve that prevents students from explod[ing] from festering tensions.257 Calvert recognized the pr oblem with this release function to be that school administrators tend to consider this speech a true threat worthy of punishment when the speech even begins to hint at violent conduct.258 Therefore, students are denied the release function of speech.259 Fred H. Cate, a law professor and internat ionally recognized expert on information law,260 wrote in a 1998 book that restricting minors a ccess to divergent expr ession also threatens important values for children.261 Although the book was written to serve as a guide for teachers and librarians on the topic of access to sexually explicit material,262 Cate provided a discussion on the value of Internet expression for children.263 Cate asserted that minors may have a legitimate interest in sexually explicit expression, even if based solely on curiosity and the role that such information plays in their own development and maturation.264 The Internet creates important opportunities for teaching children to de al with society more broadly.265 According to Cate, the Internet provides a comparatively safe environment for minors to deal with various issues, includi ng contact with a stranger, sorting through 256 Id at 282. 257 Id ., citing RODNEY A. SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 13 (1992). 258 Id 259 Id 260 FRED H. CATE, THE INTERNET AND THE FIRST AMENDMENT: SCHOOLS AND SEXUALLY EXPLICIT EXPRESSION 103 (1998). 261 Id at 86. 262 Id at 4. 263 Id at 86-95. 264 Id at 87. 265 Id at 92. 49

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information, judging the quality of ideas, and learning to avoid expression that may be harmful.266 Cate wrote that the Intern et served minors as a demonstration of the constitutional value of free inquiry, thought, and expression. Such possibilities and learning opportunities make the Internet a valuable resource for teachers, librarians, and school administrators.267 However, to gain the most benefit from the Internet in sc hools, educators and students must be trained, an time and resources must be dedicated to thoughtfully integrating th e technology into the curriculum. d 268 Further, Cate acknowledged that such benefits do not lead to the conclusion that there should be no limits on the information available to children.269 Cate indicated that the age of students, their level of development, as well as the setting and nature of the material, may lead some expression to be deemed inappropriate.270 Cate urged that protec ting children from this inappropriate information be done by alternative m eans that are less restrictive than absolutely blocking access to specific categories of expression.271 He suggested those wanting to control content delivered to younger children use tec hnologies like CD-ROMs, educational software packages, and kid-friendly ratings to protect children. Most valuab le to Cate was the benefit of having a parent, teacher, librarian, or volunteer train children on th e dangers of the Internet and provide information on intere sting and appropriate sites.272 Thus, Cates premise appeared to be 266 Id at 93. 267 Id at 94. 268 Id 269 Id at 91. 270 Id at 92. 271 Id 272 Id 50

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that with the collaborative efforts of these pa rties, children could benefit from access to the Internet while being protected from inappropriate material. The various standards, theories and possible analyses have le ft the courts in disorder when evaluating student speech on the Internet, even in the context of harassment speech.273 In a law review note, Brian Oten disc ussed the different levels of authority courts have given schools in regulating speech. Oten recogni zed that the broad authority affo rded by the courts offends the dangers recognized by the Constitutions framers: government action has a chilling effect on speech.274 In order to adapt to the Internet, Oten suggested schools follow the Tinker standard.275 Such a test, according to Oten, would first requ ire courts to analyze the student expression by considering how a reasonable pe rson would perceive the specifi c utterance, before assessing whether the speech disrupts th e educational environment.276 The second part of the analysis would require courts to complete an objective evaluation of the language of the threat, under a reasonable person test.277 Therefore, Internet speech s hould be punishable by a public school only if a reasonable person would consid er the speech disruptive to education.278 Oten stressed that the purpose of education is to train leaders through a wide exchange of ideas, so schools must protect student speech, even on the Internet.279 However, Oten recognized that the higher 273 Brian Oten, Disorder in the Courts: Public School Student Expression on the Internet 2 First Amend. Rev. 403 (2004). 274 Id. at 434. 275 Id. at 433. 276 Id at 432. 277 Id 278 Id. at 434-35. 279 Id. at 435. 51

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courts, ideally the U.S. Supreme Court, must take up the issue.280 Until such time, lower courts are free to create various standards to ev aluate student speech on the Internet.281 And some of these standards that provide sc hools with great deference ma y chill student speech, Oten concluded.282 Online Social Networks Scholarly literature has just begun to delve in to the issues and concerns of online social networks. None of the literature available has spec ifically approached the topic from the angle of high school student speech rights. However, some articles are available discussing other areas of law where online social networks are raising issues. One 2007 article in the Kansas Journal of Law & Public Policy discussed the problems that arise when employers base adverse employment decisions upon information obtained through online social networks.283 The author specified three basi c problems of such practices: (1) inaccurate, irrelevant, or false information l eads to unfair employment decisions; (2) lack of accountability and disclosure tempts employers to make illegal employment decisions; and (3) employer searches of an employees online so cial life violate an employees legitimate expectation of privacy.284 The author argued that because s earches of online social networking services stand to become mo re prevalent among employers, the law must expand to ensure 280 Id. at 436. 281 Id 282 Id. 283 Donald Carrington Davis, MySpace Isnt Your Space: Expanding the Fair Credit Reporting Act to Ensure Accountability and Fairness in Employer Search es of Online Social Networking Services, 16 KAN. J.L. & PUB. POLY 237 (2007). 284 Id at 241-248. 52

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adequate protection to users from unfair, illegal or arbitrary employment decisions.285 The authors offered solution was to extend the Fair Credit Report Act (FCRA) to cover potential problems for candidates and empl oyees caused when employees se arch online social network profiles.286 The author recommended extending the FCRAs broad definitions of consumer reporting agency, consumer report, and investigative consumer report to include online social networks.287 Including online social networks in th ese definitions would update the law to provide continuing protection to candidates and employees as employers find new ways to investigate their candidates.288 The author argued that the expa nsion of these definitions would provide a buffer to hold employers accountable and to help ensure their decisions are based on fair, relevant, and accurate information.289 Another 2007 article looked at liability of online social networks when offline sexual assault of minors follows interaction over the online social network.290 The author looked at a the case of Doe v. MySpace which suit arose after a thirteen-yea r-old girl create d a profile page on MySpace and subsequently began comm unicating with a nineteen-year-old man.291 The m asked the girl for her cell phone number, and the two had several te lephone conversations. an 292 The 285 Id 286 Id at 251. 287 Id 288 Id 289 Id at 251-52. 290 Elizabeth P. Stedman, MySpace, But Whose Responsibility? Liability of Social-Networking Websites When Offline Sexual Assault of Minors Follows Online Interaction, 14 VILL. SPORTS & ENT. L.J. 363 (2007). 291 Id at 377. 292 Id 53

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two met one day after school, a nd the nineteen-year-old man sexually assaulted the girl.293 Plaintiffs filed suit and accused MySpace of ha ving no meaningful protections or security measures to protect underage users from be ing contacted by adult sexual predators.294The plaintiffs based their claims agai nst MySpace in fraud and negligence.295 The author asserted that the plaintiffs failed to state a claim for fraud because they are unable to prove that MySpace misr epresented a material fact.296 First, the Web sites Terms of Use Agreement stated that MySpace is not responsi ble for the conduct, whether online or offline, of any user of the Web site or member of th e service. Second, the Terms of Use Agreement noted that MySpace was not responsible for any incorrect or inaccurate information on its Web site.297 Third, MySpace had never asserted absolute security on its Web site, especially in regards to accurate age verification methods.298 Thus, according to the author, the plaintiffs failed to state a claim for fraud because they are unable to prove that MySpace misrepresent material ed a fact.299 As to the negligence claim, MySpace could be found liable.300 The author stated that MySpace owes its minor users a duty of care to enact reasonable safety measures to protect them from offline sexual victimization.301 The duty arises from the fact that it is foreseeable that 293 Id 294 Id at 378. 295 Id at 378. 296 Id at 379. 297 Id 298 Id 299 Id 300 Id at 392. 301 Id at 384. 54

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children will use MySpace to meet offline with individuals who will sexually assault them.302 As to whether MySpace proximately caused the injuries the author found that the reasoning of the Communications Decency Act did not support a finding of proximate cause, however, an economic analysis of negligence did support such a claim.303 The authors economic analysis would find MySpace liable for negligence becau se MySpace did not bear the cost of the intermediate position requiring credit card identification for minors accounts.304 Providing this security measure would cost less than the cost of sexual assaults to minors, and, thus, MySpace acted negligently.305 The author also provided an an alysis of other alte rnative theories of recovery against MySpace. For instance, under the authors analysis, MySpace likely is liable for negligent failure to warn.306 Another alternative presented was the theory of attractive nuisance.307 While the author does not conclude whether MySpace would be liable under the attractive nuisance theory, it is stated that the doctrine provides a framework for law re lating to dangerous situations enticing to children.308 Based on the remedies available and the econom ic analysis of negligence, the author concluded that parents and MySpace must work together to protect children.309 The relationship between MySpace and parents would stem from th e fact that MySpace has information as to 302 Id 303 See id at 389-90. 304 Id at 391. 305 Id at 392. 306 Id 307 Id at 393. 308 Id 309 Id at 397. 55

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minors activities, and parents have physical control over their children.310 Parents have the opportunity to warn their children about the dangers of online interaction.311 MySpace has the opportunity to implement age verification procedures in which parents coul d register a person as their child following verification of credit card numbers.312 The working relationship of both parties is the most effective way of protecting children on the online social network, according to the author.313 Some articles that look at onlin e social networks in different contexts may provide some insight to the question of student spe ech rights. In a Note & Comment, Deleting Online Predators Act: I Thought It Was My-Spac e How Proposed Federal Regulation of Commercial Social Networking Sites Chills C onstitutionally Protected Speech of Minors published in the Loyola of Lo s Angeles Entertainment Law Review, Lindsay M. Gehman evaluated the constitutional ity of the proposed Deleting Online Predators Act (DOPA).314 In doing so, Gehman suggested that the courts view online social networks as traditional public forums, or at minimum designated public forums.315 Gehman argued that the online social networks are exactly what the quintessential fora are used for: communication between citizens and discussion of public questions. 316 If the Supreme Court were to give the Internet sites such 310 Id 311 Id 312 Id 313 See id 314 Lindsay M. Gehman, Deleting Online Predators Act: I Thought It Was My-Space How Proposed Federal Regulation of Commercial Social Networking Sites Chills Constitutionally Protected Speech of Minors, 27 LOY. L.A. ENT. L. REV. 155 (2006). 315 Id at 168. 316 Id 56

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designations, it would force schools and other state actors to pass a strict scrutiny standard when suppressing such expression.317 Thus, while Gehman understood the government s interest in wanting to protect minors from online predators, she warned that the br oad definitions in the legislation would be overbroad and sweep in too ma ny online sites that serve the public as a public forum.318 Therefore, Gehman concluded that parental control is perhaps th e most viable, needed protection for children on online social networks not abridgment of speech rights.319 Conclusion Scholars agree that students are entitled to some First Amendment speech protection. However, to what degree student speech is prot ected is the basis for much debate. Some scholars advance that students be fully protected for speech that is wholly independent of the educational process. Other scholars assert that the protection of speech should be based on content. No scholarly .literature is available on how student speech rights on online social networks should be viewed; however, the available literature on online student speech provides a solid foundation to build upon in trying to learn when student speech is protected on online social networks. 317 Id. 318 Id at 182. 319 Id at 183. 57

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CHAPTER 3 CASE LAW The U.S. Supreme Court has not addressed the issue of student speech on the Internet, let alone student speech on online social networks. W ithout guidance from the Supreme Court of the land, courts have scrambled to figure out the proper mode of analysis. They have relied on the student speech cases available from the U.S. Supreme Court; however, the courts have reached different results under these guidelines. Thus, the issue remains as to how a court should and would evaluate a student speech case involving onlin e social networks. To reach an answer, the cases available must be examined in great detail with specific attention paid to the facts and circumstances of each case. Student Speech at the Supreme Court The U.S. Supreme Court has weighed in on stud ent speech issues; how ever, in very limited instances. Three cases that span approximately tw enty years are the most informative as to the analysis of student speech cases. Even in these limited number of cases the Court has altered the standards, further leaving lower courts and schol ars to debate which mode of analysis remains today. In 2007, the Court took the latest student speech case, and it may provide guidance to the current status of student speech analysis. Student Speech Trilogy As explained in Chapter 1, three cases at the U.S. Supreme Court evaluating student speech issues are considered the student speech trilogy. The trilogy is presented with great detail in order to extract what parts are applicable to student speech on online social networks. None of the student speech trilogy cases deal with online social networks; none of the cases deal with Internet speech. However, through the opinions, the U.S. Supreme Court has provided language 58

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and rules by which to evaluate student speech. Thus, looking at this language and the rules set forth by the Court, is a logical first step in evaluating student speech on online social networks. Tinker v. Des Moines Tinker v. Des Moines320 is the first case of the student speech trilogy and is considered to be the highpoint of the Supreme Courts commitment to free speech in schools.321 The case arose amid the national controversy over the Vietnam War.322 Young Americans joined the public debate and expressed their opinions over th e morality and justice of the Vietnam War.323 One way young Americans participated in the debate s was through protest. Two Iowa teenagers participated in a Washington, D.C., peace march; th ey returned to Iowa with an idea that became the basis of the famous Supreme Court decision.324 In December 1965, a group of students and adults in Des Moines, Iowa, held a meeting and decided to publicize th eir objection to the hostilities in Vietnam.325 The group decided to wear black armbands during the holiday s eason to show its support for a truce.326 Aware of the plan to wear armbands, principals of the Des Moines schools met on December 14, 1965, and adopted a policy that any student wearing an armba nd to school would be asked to remove it.327 If the 320 Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). 321 See JAMIN B. RASKIN, WE THE STUDENTS: SUPREME COURT CASES FOR AND ABOUT STUDENTS 22 (2d ed. 2003). 322 Id 323 See id 324 Id 325 Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 504 (1969). 326 Id 327 Id 59

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student refused to remove the armband, the studen t would be suspended until he returned without the armband.328 Mary Beth Tinker, a thirteen-y ear-old junior high student, and John Tinker, fifteen years old, and Christopher Eckhardt, si xteen years old, both high school students, wore the armbands to school between December 16 and December 17, 1965.329 All three students were suspended until they returned without the armbands.330 The students did not return to school until after New Years Day, when the planned period for wearing the armbands expired.331 The students filed a complaint in the U.S. District Court through their fathers plea for an injunction restraining school offici als and the school district from disciplining the students, and it sought for nominal damages.332 The U.S. District Court dismissed the complaint.333 It upheld the constitutionality of the school authorities action on the ground that it was reasonable in order to prevent disturbance of school discipline.334 In its opinion, the U.S. District Court referred to, but expressly declined to follow, a Fifth Circuit ruli ng in a similar case that held the wearing of symbols like armbands cannot be prohibited unle ss it materially and subs tantially interfere[s] with the requirements of appropriate discipline in the ope ration of the school.335 328 Id 329 Id 330 Id 331 Id 332 Id at 504. 333 Id 334 Id at 505. 335 Tinker v. Des Moines Independent Community School Dist., 258 F. Supp. 971, 973 ( citing Burnside v. Byars, 363 F. 2d 744, 749 (5th Cir. 1966)). In Burnside the Fifth Circuit enjoined school authorities from enforcing regulations forbidding students to wear freedom buttons. Id 60

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The students appealed the U.S. District Court decision to the U.S. Court of Appeals for the Eighth Circuit.336 The U.S. Court of Appeals for the Eighth Circuit decided the case en banc and was equally divided.337 Accordingly, the U.S. District C ourts decision was upheld without an opinion.338 The students appealed to the U.S. Suprem e Court, and the Court granted certiorari.339 The U.S. Supreme Court decided that the wear ing of armbands was entirely divorced from actually or potentially disruptive co nduct by those participating in it.340 The Court considered the armbands to be closely akin to pure speech, which the Court has repeatedly held is entitled to comprehensive protection under the First Amendment.341 Thus, the Court found the wearing of the armbands to be protected by the First Amendment.342 With this conclusion provided up front in the opinion, the Court followed by stating: It can hardly be ar gued that either students or teachers shed their constitutional rights to freed om of speech or expression at the schoolhouse gate. This has been the unmistakable holding of [the] Court for almost 50 years.343 On the other hand, the Court established a need to affirm the comprehensive authority of the states and of school officials to prescribe and control conduct in sc hools, albeit in a manner consistent with the fundamental constitutional safeguards.344 Having categorized the armbands 336 Tinker, 393 U.S. at 505. 337 Id 338 Id 339 Id 340 Id 341 Id at 506, comparing Cox v. Louisiana, 379 U.S. 536, 555 (1965); Adderley v. Florida, 385 U.S. 39 (1966). 342 See id 343 Id 344 Id at 507. In speaking of constitutional safeguards, the Court referenced several case s involving the Fourteenth Amendment. Id It pointed to the examples of Meyer v. Nebraska 262 U.S. 390 (1923), and Bartels v. Iowa 262 U.S. 404 (1923), which held that the Due Process Clause of the Fourteenth Amendment prevented states from forbidding the teaching of fore ign languages to young students. Id ., citing Meyer and Bartels. Further, the Court 61

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as pure speech, the Court framed the issue at hand as a collision between students exercise of First Amendment rights with th e rules of school authorities.345 While the Court found schools have authority to prescribe and cont rol conduct in schools, it found that Tinker did not con aggressive, disruptive action or even group demonstrations. cern 346 Absent this finding that the conduct would materially and s ubstantially interfere with th e requirements of appropriate discipline in school operation, th e Court found the prohibition ag ainst the armbands to be unconstitutional.347 The Court explained that in order to constitu tionally regulate speech, school officials must show more than a mere desire to avoid th e discomfort and unpleasantness that accompany unpopular viewpoints.348 As applied in Tinker the Court found that there was no evidence that five students in the school system of 18,000 disrupte d any class; there were no threats or acts of violence on school premises.349 School officials failed to show evidence that they had reason to anticipate the wearing of armbands would substa ntially interfere with school work, or that it would impinge upon the righ ts of other students.350 The Court found that school officials looked at language from West Virginia v. Barnette 319 U.S. 624 (1943) that stated the Fourteenth Amendment protects citizens against the State and all its arms, including the Board of Education. Id ., quoting Barnette. The Court cited Barnette to illustrate that education boards have important, delicate, and highly discretionary functions, but all of these must be performed within th e confines of the Fourteenth Amendment. Id ., quoting Barnette, 319 U.S. at 637. 345 Id 346 Id at 508. 347 See id 348 Id at 509. 349 Id at 508. 350 Id at 509. The Court pointed out that school officials even failed to make such references in official memorandum prepared after the suspension that liste d the reasons for the ban on wearing the armbands. Id The Court found that there were only two suggestions of fear in the report. Id ., note 3. Those fears were stated as follows: 62

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simply felt schools were no place for demonstrations.351 Thus, the action of the school authorities seemed to have been based upon an ur gent wish to avoid the controversy which m result from the expression of opposition to the countrys presence in Vietna ight m.352 The Court further found it signif icant that school authorities di d not purport to prohibit the wearing of all symbols of political or controversial significance.353 The record in Tinker indicated that other students in some of the school wore bu ttons relating to political campaigns, and some even wore symbols traditionally associated with Nazism.354 Thus, school officials singled out a particular symbol black armbands worn to exhibit opposition to the nations participation in Vietnam.355 The Court held that a prohibition of expression of one particular opinion, at least without evidence that it was n ecessary to avoid material and substantial interference with schoolwork or di scipline, is unconstitutional.356 The Court concluded that in the absence of a specific showing of constitutionally valid reasons to regulate their speech, st udents are entitled to freedom of expression of their views.357 This protection of students First Amendment ri ghts is not limited to classroom hours, according A former student of one of our high schools was killed in Viet Nam. Some of his friends are still in school and it was felt that if any kind of demonstration existed, it might evolve into something which would be difficult to control. Students at one of the high schools were heard to say they would wear arm bands of other colors if the black bands prevailed. Id 351 Id at 509, note 3. 352 Id at 510. 353 Id 354 Id 355 Id at 510-11. 356 Id at 511. 357 Id 63

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to the Court.358 Further, the Court stated that the students rights to free expression are not confined to supervised, ordained discussions in the classroom.359 If a student expresses his opinion, even on controversial subjects, in the ca feteria, or on the playing field, or on the campus during authorized hours he may do so without materially and substantially interfere[ing] with the requirements of appropriate discipline in the operation of the school and without colliding with th e rights of others.360 But when the students c onduct, whether in or out of class, materially disrupts cl ass work, or involves substantia l disorder, or the invasion of rights of others, it is not protected by the constitutional guarantee of freedom of speech.361 The majority opinion used the marketplace of ideas theory to support its conclusion.362 The Court quoted and approved previous jurispruden ce that noted the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.363 In fact, a previous case cited by the Court stated that the classr oom is peculiarly the marketplace of ideas.364 The Court supported the statement that th e nations future depends on leaders trained in classrooms with robust excha nges of ideas which leads to th e discovery of truth out of multitude of voices rather than throu gh any kind of authoritative selection. a 365 Thus, speech that does not cause a material and substan tial interference should be encouraged.366 358 Id at 512. 359 Id 360 Id at 513 (quoting Burnside v. Byars 363 F.2d 744, 749 (1966)). 361 Id 362 See id at 512. 363 Id (quoting Shelton v. Tucker 364 U.S. 479, 487 (1960)). 364 Id (citing Shelton 363 U.S. at 487). 365 Id 366 See id at 511. 64

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Tinker was a 7-2 U.S. Supreme Court decisi on, but the dissenting opinion perhaps foreshadowed the future of student speech rights.367 Justice Hugo Black delivered a dissenting opinion368 that denied the Court had ev er held that students take w ith them their constitutional rights inside the schoolhouse gate.369 Justice Black proclaimed th at public school students are not sent to schools to broadcast political or any other views to educate or inform the public. Rather, the idea behind public schools is that students have not yet reached the point of experience and wisdom which enabled them to teach.370 371 Justice Black wrote that the armbands did in fact disrupt the educatio nal process as it took students mi nds off of their class work and diverted them to thoughts about the Vietnam War.372 Thus, Justice Black concluded that the majority opinion subjected schools to the whi ms and caprices of their loudest-mouthed, but maybe not their brightest, students.373 He viewed the Courts holding as giving control to students and removing the autonomy of school officials in making educational decisions.374 Bethel School District No. 403 v. Fraser The second case of the student speech trilogy be gan when Matthew N. Fraser delivered a speech to approximately 600 high school student s at Bethel High School in Pierce County, 367 See Erwin Chemerinsky, Students Do Leave Their First Amendment Ri ghts at the Schoolhouse Gates: Whats Left of Tinker? 48 DRAKE L. REV. 527 (2000). 368 Justice Harlan also provided a dissenting opinion, which was very brief and focused solely on the fact that nothing in the record impugned the good faith of school officials in promulgating the armband regulation. Tinker 393 U.S. 503, 526 (1969)(J. Harlan, dissenting). 369 Tinker 393 U.S. at 521 (J. Black, dissenting). 370 Id at 523. 371 Id 372 Id at 518. 373 Id at 525. 374 See id 65

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Washington.375 The speech was nominating a fellow st udent for student government and was part of a school-sponsored educat ional program in self-government.376 Fraser, a popular student and known class clown,377 referred to his candidate in terms of an elaborate, graphic and expl metaphor. icit 378 The speech included the following sentences: I know a man who is firm hes firm in his pa nts, hes 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, hell take an issue and nail it to the wall. He doesnt 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 hell never come between you and the be st our high school can be.379 Fraser discussed the content of his speech in advance with two teachers, and both teachers warned Fraser that his speech was inappropr iate and that delivering such a speech might have severe consequences.380 Despite the warning, Fraser delivered the speech.381 During the speech, a school counselor observed some reac tions from students: hooting, yelling, and gesturing the graphical simulated sexual activities alluded to in Frasers speech.382 The morning after the assembly, Fraser was called into the prin cipals office and was told that his speech was a violation of a Bethel High School disciplinary rule.383 Fraser admitted to having delivered the 375 Bethel School District v. Fraser, 478 U.S. 675, 677 (1986). 376 Id 377 JAMES B. RASKIN, WE THE STUDENTS: SUPREME COURT CASES FOR AND ABOUT STUDENTS 37 (2003). 378 Fraser 478 U.S. at 678. 379 Id at 687 (J. Brennan, concurring); see also JAMES B. RASKIN, WE THE STUDENTS: SUPREME COURT CASES FOR AND ABOUT STUDENTS 37 (2003). 380 Fraser 478 U.S. at 678. 381 See id 382 Id 383 Id The disciplinary rule provided Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures. Id 66

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speech and that he deliberately used sexual innuendo.384 Fraser was suspended for three days and his name was removed from the list of candi dates for graduation speaker at the schools commencement ceremony.385 Fraser sought review of the disciplinary action through the school districts grievance procedures.386 School District offi cials determined that the sp eech was indecent, lewd, and offensive.387 Though Fraser was allowed to return to sc hool after having served only two days of his suspension, Fraser brought an action in the U.S. District Court for th e Western District of Washington.388 Fraser alleged that the school sanctions violated hi s First Amendment right to freedom of speech.389 The court agreed with Fraser, a nd found that the disciplinary action violated Frasers right to freedom of speech a nd that the schools disruptive-conduct rule was unconstitutionally vague and overbroad.390 The U.S. Court of Appeals for the Ninth Circ uit affirmed the District Courts decision and found Frasers speech to be indistinguishable from the armbands in Tinker.391 The Ninth Circuit rejected the school dist ricts argument that the speech had a disruptive effect on the educational process.392 The Ninth Cirucit also rejected the argument that the School District had an interest in protecting the audience of minors from lewd and indecent language in a school384 Id 385 Id 386 Id 387 Id 388 Id at 679. 389 Id 390 Id 391 Id 392 Id 67

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sponsored setting.393 The court reasoned that granting the School District unbridled discretion to determine what discourse is decent would increase the risk of cementing white, middle-class standards for determining what is acceptabl e and proper speech in our public schools.394 Lastly, the court rejected the School Di stricts argument that it had th e power to control the language used to express ideas during a sc hool-sponsored activity as part of its responsibility to the school curriculum.395 The U.S. Supreme Court granted certiorari and held that the School District acted entirely within its permissible authority in im posing sanctions on Fraser for his speech.396 To reach its conclusion, the Court looked to the role and purpose of the American public school system.397 The Court adopted the notion that public education must prepare st udents for citizenship in the nation and introduce the habit s and manners of civility.398 The Court determined that these fundamental values of habits and manners of civility must include tolerance of divergent political and religious views, but also must take into account cons ideration of the sensibilities of others. 399 Thus, the Court stated that the freedom to advocate unpopular and controversial views in schools must be balanced against societys in terest in teaching student s boundaries of socially appropriate behavior.400 393 Id at 680. 394 Id (quoting 755 F.2d 1356, 1363 (9th Cir. 1985)). 395 Id 396 Id at 685. 397 Id at 681. 398 Id (quoting C. BEARD & M. BEARD, NEW BASIC HISTORY OF THE UNITED STATES 228 (1968)). 399 Id 400 Id 68

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Finding such a balance was a highly appropr iate function of public school education to prohibit the use of vulgar and offensive terms in public discourse, according to the Court.401 The Court found that the U.S. Constitution does not prohi bit states from insisting that certain modes of expression are inappropria te and subject to sanctions.402 In fact, the Court stated that the values necessary to maintain a democratic politica l system disfavors the use of terms or debate highly offensive or highl y threatening to others.403 Thus, allowing the school board to make the determination of what manner of speech is inappropriate does not offend the U.S. Constitution.404 The Court agreed with the school district s finding that Frasers speech was plainly offensive to both teachers and students.405 The Court found that by glor ifying male sexuality, the speech was insulting to teenage girl students.406 Further, the speech could have been seriously damaging to its less mature audience, many of whom, according to the Court, were on the threshold of awareness of human sexuality.407 Accordingly, the Court f ound that Frasers speech fell into a category of sexually explicit speech, which the First Amendment jurisprudence has acknowledged has limitations.408 While such speech is entitled to First Amendment protection with respect to adults, there is a concern to protect children from sexually explicit speech.409 401 Id at 683. 402 Id 403 Id 404 Id 405 Id 406 Id 407 Id 408 Id at 684. 409 See id 69

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Acting in loco parentis school authorities must protect ch ildren from exposure to sexually explicit, indecent, or lewd speech.410 Thus, the Court found the school district acted within its permissible authority in punishing Fraser for his speech because schools must protect students from sexually explicit speech.411 It is important to note that in reaching its conclusion in Fraser the U.S. Supreme Court made a point to distinguish the instant case from Tinker First, the Court determined that the use of lewd and obscene speech did not rise to the same level of Fi rst Amendment protection as the political message of armbands in Tinker .412 Second, the Court noted that the penalties imposed on Fraser were unrelated to any political viewpoint.413 However, the majority did not focus on the test pronounced by the Tinker Court: whether the speech caused a material or substantial disruption to the e ducational process. Justice Marshall dissented414 from the Courts decision finding that the School District failed to demonstrate Frasers remarks were disruptive.415 Justice Marshall stated that where speech is involved, the Court may not unquesti oningly accept a school s assertion that certain pure speech 410 Id 411 Id 412 See id at 680-81. 413 Id at 685. 414 A second dissenting opinion was delivered by Justice Stevens. Id at 691-96. Justice Stevens agreed with the majority that the school must regulate the content and style of student speech in carrying out its educational mission, but believed that Fraser should have had fair notice under the Due Process Clause of the Fourteenth Amendment. Id at 691-92. According to Stevens, Fraser should have known that he would be punished for giving his speech on the theories that (1) it violated the disruptive conduct rule, (2) he was specifically warned by his teachers, or (3) the impropriety is so obvious that no specific notice was required. Id 693. Justice Stevens di smissed the first theory because the School District failed to show Frasers speech was disruptive to the educational process. Id Second, the warning by the teachers did not give Fraser notice of the likelih ood of discipline. Id at 695. Finally, Justice Stevens found that Frasers speech, delivered to an audience of young people may have been regarded as routine comment. Id at 696. Justice Stevens concluded that a strong presumption in favor of free speech should able when an issue of this kind is arguable. Id 415 Id at 690 (J. Marshall, dissenting). 70

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interfered with education.416 He found that despite a clear oppo rtunity to do so, the school district failed to present sufficient evidence to co nvince either of the two lower courts that the education at the school was disrupted by Frasers s peech.417 Thus, as the second case in the student speech trilogy, Fraser begins to move away from the high burden Tinker placed upon school administrators in regulating student speech. The U.S. Supreme Court decided that where the speech is lewd and indecent, school authorities may properly regulate it.418 But the facts of Fraser show that the speech still occurred within the schools walls, and during a school-sponsored event.419 Less than two years later, the Court expanded upon the notion of school-sponsored speech in the trilogys final case, Hazelwood School District v. Kuhlmeier. Hazelwood School District v. Kuhlmeier The case of Hazelwood School District v. Kulmeier,420 the final case in the student speech trilogy, determined the extent to which educators ma y exercise editorial control over the contents of a high school newspaper produced as part of the schools journalism curriculum.421 The U.S. Supreme Court ultimately decided that school administrators we re entitled to censor schoolsponsored forms of speech so long as the censorship was reasonable.422 The Court derived this 416 Id 417 Id 418 Id at 685. 419 See id at 678. 420 Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) [hereinafter cited and referred to as Hazelwood ]. 421 Id at 262. 422 Id at 270. 71

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standard, which is lower than Tinkers material and substantial interference test, because the speech at issue in Hazelwood was a school-sponsored expressive activit[y].423 Hazelwood East High School had a school newspaper, the Spectrum which was written and edited by students in th e schools Journalism II class.424 The newspaper was published approximately every three weeks during the sc hool year, and the May 13, 1983, issue was to be the last issue of the school year.425 As was the practice, the journalism teacher submitted page proofs of the Spectrum issue to the schools principal for review prior to publication.426 The principal objected to two articles in the issue: one story describing thr ee students experiences with pregnancy and one story discussing the impact of divorce on students at the school.427 The principal claimed he was concerned that although the pregnancy stories used fictitious names, the pregnant students might still have been identifiable from the text.428 He was also concerned that the articles references to sexual activity and birth control were inappropriate for the schools younger students.429 As to the divorce story, the prin cipal believed that the parents should have been given an opportunity to respond to the students remarks or to contest to their 423 Id at 273. 424 Id at 262. 425 Id 426 Id at 263. 427 Id 428 Id 429 Id 72

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publication.430 Based on these concerns, the principal de cided to delete the two pages on which the stories appeared.431 Three student staff members of Spectrum brought suit in the U.S. District Court for the Eastern District of Missouri seek ing a declaration that their First Amendment rights had been violated, injunctive relief, and monetary damages.432 After a bench trial, the U.S. District Court denied an injunction and held that no First Amendment violation had occurred.433 The District Court determined that school officials may impose restraints on students speech in activities that are an integral part of the schools educational function, in cluding the publication of a schoolsponsored newspaper, so long as their deci sion has a substantial and reasonable basis.434 The U.S. Court of Appeals fo r the Eighth Circuit reversed.435 The court held that the Spectrum was not only part of the schools adopted curriculum, but it also was a public forum.436 The court considered the school newspaper a pub lic forum because it was intended to be and operated as a forum for the student viewpoint.437 The court concluded that the newspapers status as a public forum precluded school officials from censoring its contents except when necessary 430 Id 431 Id at 264. The principal did not believe there was sufficient time to make the necessary changes in the stories before the scheduled press run. Id at 263. Further, he was concerned that if the printing were delayed much further, the paper would not appear before the end of the school year. Id at 264. Thus, he made a decision to remove the two pages rather than not publish a newspaper at all. Id. The principal later testified that he had no objections to the other articles appearing on the pages and that they were deleted only because they appeared on the same pages as the two objectionable articles. Id ., n. 1. 432 Id at 264. 433 Id 434 Id 435 Id at 265. 436 Id 437 Id 73

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to avoid material and substantial interference with school work or discipline or the rights of others.438 The U.S. Supreme Court granted certiorari and reversed the Eighth Circuits decision.439 The Court acknowledged the Tinker decision and reiterated that students do not shed their constitutional rights to freedom or expression at the schoolhouse gate.440 Quickly following, the Court also reiterated that the First Amendmen t rights of students in public schools are not automatically coextensive with the ri ghts of adults in other settings441 and must be applied in light of special characteristics of the school environment.442 It was against these premises that the Court considered the students First Amendment claims. First, the Court looked at whether the newspaper could be appropriately characterized as a forum for public expression.443 The Court stated that a public forum is not formed by inaction or the permitting of limited discourse.444 Rather, a public forum is created when the government intentionally opens a nontraditional forum for public discourse.445 Looking at the policy of school officials toward Spectrum the Court determined that the newspaper was intended to be part of the educational curriculum; thus, it was not a public forum.446 Accordingly, the Court 438 Id (citing 795 F. 2d 1368 (1986)(quoting Tinker v. Des Moines 393 U.S. 503, 511 (1969))). 439 Id at 266. 440 Id (quoting Tinker, 393 U.S. at 506). 441 Id (quoting Fraser 478 U.S. 675, 682 (1986)). 442 Id. (quoting Tinker, 393 U.S. at 506). 443 Id at 267. 444 Id 445 Id 446 Id at 270. 74

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held that school officials were ent itled to regulate the contents of Spectrum in any reasonable manner.447 The second issue considered in the Firs t Amendment claim was whether the First Amendment requires a school to affirmativ ely promote particular student speech.448 In other words, what authority do school officials have over school-sponsored public ations that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school[?]449 The Court stated that school administrators are entitled to exer cise greater control over this form of student expression to assure (1 ) participants learn the lessons the activity is intended to teach, (2) audience me mbers are not exposed to materi al that may be inappropriate for their level of maturity, and (3) that the views of the individual speak er are not erroneously attributed to the school.450 Accordingly, the Court held that school administrators do not offend the First Amendment by exercising editorial c ontrol over the style a nd content of schoolsponsored expressive activities, so long as th eir actions are reasonably related to legitimate pedagogical concerns.451 Finding the school did not offend the First Amendment by censoring the speech, the Court next turned to whether the principals acti ons were reasonably related to legitimate pedagogical concerns.452 447 Id 448 Id at 270-71. 449 Id at 271. 450 Id 451 Id at 273. 452 Id .; see also id at 274. 75

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The Court determined that the principal acte d reasonably in requiri ng the deletion of the two pages.453 First, the Court agreed with the principa l that due to the identifying information and the few number of pregnant students at th e school, it was reasonable to conclude that the students anonymity was not adequately protected in the pregnancy article.454 Second, the Court found that the principal reasonably could have been concerned that the article did not adequately protect the boyfriends and parents, who were di scussed but not given an opportunity to consent to the publication or offer a response.455 As to the divorce article, the Court agreed that the principal could reasonably have concluded that an individual publicly identified as an inattentive parent was entitled to an opportunity to defend himself.456 Finally, the Court accepted that it was reasonable for the principal to delete the two page s given that there was insufficient time to make the needed changes and given the pressure th e principal was under to make an immediate decision so that students would not be deprived of a newspaper altogether.457 Finding the principals actions to be reas onable, the Court found no violation of the First Amendment had occurred.458 The Hazelwood majority moved away from Tinkers material and substantial test and instituted a reasonable standard for school-spon sored expressive activities. This standard provides school administrators greater latitude in censoring school-sponsored activities for style 453 Id at 274. 454 Id In fact, a teacher testified that she could possibly id entify at least one of the girls and possibly all three. Id 455 Id 456 Id at 275. 457 Id at 275-76. 458 Id at 276. 76

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and content.459 But the Court stressed that the censo rship must have a valid educational purpose.460 Without, a valid educational purpose the First Amendment is so directly and sharply implicated, as to require judicial intervention to protect students constitutional rights.461 Accordingly, the Hazelwood decision is limited to school -sponsored activities and did not overturn Tinker which did not deal with school-sponsored speech.462 Other Supreme Court Student Speech Cases In 2007, the U.S. Supreme Court heard the case of Frederick v. Morse ,463 which is the most recent student speech case and the only student speech case following Hazelwood.464 The case involved a high school student displa ying a banner during a sc hool-sanctioned event.465 In deciding whether the students First Amendmen t rights were violated by a principal who suspended the student, the Court re lied upon the student speech trilogy.466 Although the Court ultimately ruled no First Amendment violation occurred,467 the language and analysis of the Court provides the most recent guidan ce for student speech cases today. The facts of Frederick began on January 24, 2002, when the Olympic Torch Relay passed through Juneau, Alaska.468 The torch relay was scheduled to pass along a street in front of 459 See id at 272-273. 460 Id at 273. 461 Id (internal quotations omitted). 462 See id .; see Tinker, 393 U.S. 503 (1969). 463 Frederick v. Morse, 127 S. Ct. 2618 (2007). 464 Id at 2627. 465 Id at 2622. 466 See id at 2626-27. 467 See id at 2629. 468 Frederick 127 S. Ct. at 2622. 77

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Juneau-Douglas High School while school was in session.469 The schools principal decided to permit staff and students to participate in the ev ent as an approved social event or class trip.470 Students were allowed to leave class to obser ve the relay, and teachers and administrators monitored the students actions.471 On that day, high school senior Jo seph Frederic was late to school.472 When he arrived, he joined his friends across the street from the school to watch the event.473 As the torchbearers passed by, Frederick and his friends held up a fourteen-foot banner w ith the phrase: BONG HiTS [sic] 4 JESUS.474 The high school principal immediately crossed the street and demanded that the students bring down the banner.475 Frederick was the only student that did not comply with the principals demand.476 The principal confiscated the banner and told Frederic k to report to her office.477 Upon meeting with the principal, Fr ederick was suspended for ten days.478 The principal later explained that she told Fr ederick to take down the banner because she thought it encouraged 469 Id 470 Id 471 Id 472 Id 473 Id 474 Id 475 Id 476 Id 477 Id 478 Id 78

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illegal drug use in viol ation of school policy.479 Further, the school boards policy subjected students who participated in approved social events and class trips to the same student conduct that applied during the regular school program.480 Frederick appealed his suspension through th e administrative pro cess, but the school district upheld the suspension.481 In doing so, the school district determined that Frederick displayed his banner during school hour s, at a school-san ctioned activity.482 In addition, the school district stated that Fred erick was not suspended because the principal disagreed with the message, but rather because his sp eech appeared to advocate the use of illegal drugs in violation of the school boards policy.483 The school district relied on Fraser and determined the punishment was permissible because it intruded upon the work of the schools.484 Frederick filed suit in the U.S. District Court and claimed that the school board and principal had violated his First Amendment rights.485 The U.S. District Court granted summary judgment for the school board.486 In doing so, the U.S. District Court decided that the school board and principal had not infringed Fredericks First Amendment rights.487 The court found 479 Id. at 2622-23. The School Board Polic y stated: The Board specifically prohibits any assembly or public expression that advocates the use of substances that are illegal to minors . Id at 2623 ( citing Juneau School Board Policy No. 5520). 480 Id at 2623 ( citing Juneau School Board Policy No. 5850). 481 Id 482 Id 483 Id 484 Id. 485 Id 486 Id 487 Id The U.S. District Court also decided that the school board and principal were entitled to qualified immunity. Id. While the issue of qualified immunity di d reach the U.S. Supreme Court, it is no t discussed in detail in this thesis as it is not relevant to the First Amendment claims. Th e Courts analysis and discussion regarding the First 79

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that the principal reasonably interpreted the banner as promoting illegal drug use and that she had the authority, and perhaps an obligation, to stop such messages at school-sanctioned activity.488 The U.S. Court of Appeals for the Ninth Circu it found the school violat ed Fredericks First Amendment rights because the school punished Fred erick without demonstrating that his speech gave rise to a risk of substantial disruption.489 The Ninth Circuit found th at Fredericks right to display the banner was clearly established, and a reasonable principal in the same position would have understood that her ac tions were unconstitutional.490 The case was appealed to the U.S. Supreme Court.491 The U.S. Supreme Court granted certiorari.492 The issue before the U.S. Supreme Court was whether Frederick had a First Am endment right to display his banner.493 The Court ultimately decided that Frederick did not have a First Amendment right to display the banner.494 In reaching this decision, the Court looked at several concerns regarding the First Amendment claim.495 Amendment implications are relied upon and provide a basis to continue the discussion of student speech on online social networks. 488 Id 489 Id (citing 439 F.3d 1114, 1118, 1121-1123 (2006)). 490 Id On this basis, the Ninth Circuit held that the school board and principal were not entitled to qualified immunity. 491 Id at 2624. 492 Id 493 Id The U.S. Supreme Court also grante d certiorari on a second question: whether if Frederick had a right to display the banner, that right was so clearly established that the principal may be held liable for damages. Id 494 Id Because the Court answered the first issue in the nega tive, they had no occasion to reach the second question of qualified immunity. Id 495 See id 80

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First, the Court had to decide whethe r the case was a school speech case.496 In the first sentence of the opinion, Chief Justice Robert s established that th e event was a schoolsanctioned and school-supervised event.497 The Court reasoned that the event occurred during school hours and it was sanctioned by the principal.498 Moreover, teachers and administrators were among the students and were ch arged with supervising the students.499 Given these circumstances, the Court stated that it agreed with the school district that Frederick could not stand among his fellow students, during school hours, at a school-sanctio ned activity and claim he is not at school.500 Although making this decision for this case, the Court did acknowledge that there is some uncertainty as to when courts should apply sc hool-speech precedents.501 Second, the Court evaluated whether it was r easonable to believe the banners message promoted illegal drug use.502 The Court sided with the high sc hool principal a nd found that at least two interpretations of the banne r advocated the use of illegal drugs.503 The two interpretations the Court recognized were that (1) the phrase was equivalent to saying smoke marijuana or use an illegal drug; and (2) the message was celebrating illegal drug use.504 The Court acknowledged that the banner could be interpreted as gi bberish, but stated such an 496 Id at 2624. 497 Id at 2622. 498 Id 499 Id 500 Id 501 Id (citing Porter v. Ascension Parish School Bd ., 393 F.3d 608, 615, n.22 (5th Cir. 2004). 502 Id 503 Id at 2625. 504 Id 81

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interpretation would ignore the bl atant reference to illegal drugs.505 Accordingly, the Court held that the principals interpretation of the banner message was reasonable.506 As a result, the Courts final issue on the Fi rst Amendment claim was whether a principal may restrict student speech at a school event when that speech is reasonably viewed as promoting illegal drug use.507 To answer this question, the Court looked at the holdings and reasoning of the student speech trilogy of cases. From Tinker the Court reiterated the notion that a schools mere desire to avoid unpleasant, unc omfortable speech is insufficient in banning a form of expression unaccompanied by disorder or disturbance.508 But the Court recognized that the Fraser Court moved away from this s ubstantial disrup tion analysis.509 The Court distilled two principles from Fraser.510 First, the Court acknowledged Fraser recognized that the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.511 Second, the Court used Fraser to establish that the mode of analysis set forth in Tinker is not absolute.512 The Court stated that Fraser did not conduct a substantia l disruption analysis.513 However, the Court refused to 505 Id 506 Id 507 Id 508 Id at 2626 (citing Tinker 393 U.S. 503, 508 (1969)). 509 Id at 2627. 510 Id 2626. 511 Id 512 Id at 2627. 513 Id 82

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resolve the issue of what mode of analysis did the Court actually employ in Fraser.514 The Court also refused to interpret Fraser more broadly as meaning any speech that could fit under some definition of offensive is punishable by school administrators without offending the First Amendment.515 In its discussion of Hazelwood, the Court recognized that case as concerning expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.516 The Court quickly dismissed Hazelwood as being inapplicable to Frederick.517 It found that no one would reasonably be lieve that the banner bore the schools imprimatur.518 Nonetheless, the Court found Hazelwood to be instructive because it confirmed that schools may regulate some speech even t hough the government could not censor similar speech outside the school.519 Furthermore, Hazelwood further extended the notion from Fraser that Tinkers substantial disruption an alysis is not the sole ba sis for restricting student speech.520 In applying a reasonableness standard, the C ourt concluded that the First Amendment does not require schools to tolerate st udent expression at school events that contributes to the dangers of illegal drug use.521 The Court recognized that schools have been charged by Congress to 514 Id at 2626. The Court stated that Fraser focused on the content of the speech, but also determined that school boards have the authority to determine what manner of speech in the classroom and in school assembly is inappropriate. Id 515 Id at 2629. 516 Id at 2627. 517 Id 518 Id 519 Id 520 Id 521 Id at 2629. 83

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educate students about the dangers of illegal drug use.522 Thus, the principal in Frederick acted reasonably in stopping Fredericks message from being displayed.523 As such, the Court found no First Amendment violation. The 2007 decision in Frederick is the most recent case decided by the U.S. Supreme Court regarding student speech. While it does not deal with speech on the Internet, and perhaps, arguably, speech not within the schoolhouse gates, the Courts analysis nonetheless may provide some guidance in evaluating student speech issues on online social networks. In order to reach this analysis, one must first consider how the lower courts have analyzed student speech on the Internet an issue that has yet to reach the U.S. Supreme Court. Student Speech on the Internet While the U.S. Supreme Court has not addres sed online student speech, many courts below have dealt with various issues presented by high school students on the Internet. In ruling on a motion for a temporary restraini ng order, the U.S. District Court for the Western District of Washington determined that a student had a likelihood of succeeding on the merits of his claim after school administrators suspended him for a Web page created off-campus during non-school hours.524 The matter came before the court after Nick Emmett, an eighteenyear-old high school senior posted a Web page on the Internet created from his own home without using school resources.525 The Web page was titled Uno fficial Kentlake High Home Page, but it included disclaimers warning visito rs that the Web site was not sponsored by the 522 Id at 2628. The Court cited several examples of federal funding toward drug education and initiatives across the country in adopting policies aimed at effectuating the anti-drug message. Id 523 See id at 2629. 524 Emmett v. Kent School District No. 415, 92 F. Supp. 2d 1088, 1090 (W.D. Wash. 2000). 525 Id at 1089. 84

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high school and was for en tertainment purposes only.526 The page included mock obituaries written tongue-in-cheek apparently inspired by a creative writing class.527 The Web site became a topic of discussion and an evening televi sion news story characterized the Web site as featuring a hit list of people to be killed.528 The next day following the broadcast, Emmett wa s called to the principals office and was told that he was placed on emergency expulsion for intimidation, harassment, disruption to the educational process, and violation of the school districts copyright.529 The suspension was subsequently modified to five days, but the school never presented any evidence that Emmett intended to intimidate or threaten anyone; the sc hool did not present ev idence that any student actually felt threatened by the Web site.530 The court looked at these facts against th e backdrop of the trilogy of student speech cases.531 It recognized that Tinker established that th e prohibition of expressive conduct is permissible only if the conduct would materia lly and substantially interfere with the educational process.532 The court then acknowledged that Fraser defined the limits of Tinker and held that a students sexually suggestive speech was justifiable grounds for punishment.533 Finally, the court looked at Hazelwood and its findings that school ad ministrators could censor 526 Id 527 Id 528 Id 529 Id 530 Id 531 See id at 1090. 532 Id (citing Tinker, 393 U.S. 503, 509 (1969)). 533 Id 85

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school-sponsored newspapers.534 To determine how the trilogy w ould affect Emmets action, the court looked to how the Ninth Ci rcuit Court of Appeals had app lied the student speech trilogy.535 The court found that the Ninth Circuit had he ld that student dist ribution of non-schoolsponsored material could not be prohibited simply because of a fear of possible disturbances or embarrassment to school officials.536 Accordingly, the court found that while Emmetts intended audience was connected to the high school, the speech itself was enti rely outside of the schools supervision or control.537 Thus, absent evidence that the Web site was intended to threaten anyone, did actually threaten anyone, or manifested any violent tendencies, Emmett had a substantial likelihood of succeeding on the merits of his First Amendment claims.538 In 1998, the U.S. District Court for the Eastern District of Missouri ruled on a similar case involving a student Web site.539 Brandon Beussink, a student at Woodland High School, created and published a Web site on the Internet that was critical of his high school.540 Beussink used vulgar language to convey his opinion regarding the teachers, principal, and school Web site.541 Beussinks Web site further invi ted readers to contact the sch ool principal and contained a 534 Id 535 See id 536 Id (citing Burch v. Barker, 861 F.2d 1149 (9th Cir. 1988). 537 Id 538 Id 539 See Beussink v. Woodland School District, 30 F. Supp. 2d 1175 (E.D. Mo. 1998). 540 Id at 1177. 541 Id 86

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hyperlink to the schools Web site.542 Beussink created the Web site from home and never intended for the Web site to be acces sed or viewed at Woodland High School.543 However, a friend of Beussink saw the Web page while using Beussinks home computer.544 Subsequently, the friend purposefully accessed Beussinks Web page during school hours and showed it to a computer teacher.545 When the principal view ed the Web site, he was upset and immediately made a decision to discipline Beussink.546 The principal stated that his decision was made because he was upset that the Web pages message had been displayed in one of his classrooms.547 The court recognized that the princi pals decision was made prior to him knowing whether any other students had seen or even had knowledge of the homepage.548 Further, the court found that there was no evid ence that students viewing the Web site caused any disturbance to the classroom environment or in the library.549 In assessing the likelihood of success on the merits of the First Amendment claim, the court relied on Tinker .550 The court analyzed the case against the premise that limitations on student speech are permissible only in narrowl y defined circumstances: when the conduct would materially and substantially interfere with the requirements of appropriate discipline in the 542 Id 543 Id 544 Id 545 Id at 1178. Beussink was not with the friend when she accessed the page. Id The friend testified that she wanted to retaliate against Beussink b ecause she was angry with him. Id at 1177. 546 Id at 1178. 547 Id 548 Id 549 Id 550 Id at 1180. 87

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operation of the school.551 Speech may be limited based upon a fear or projection of such disruption, but the fear or pr ojection must be reasonable.552 The court stated that the principals testimony did not indicate he had a fear of disr uption or interference with school discipline reasonable or otherwise.553 Thus, the court found that the prin cipals reasoning of disliking and being upset by the content of Beussinks speech was not an acceptable justification for limiting the speech under Tinker .554 Absent a material[] and substantial[] inte rference, the court believed that Beussinks speech may be constitutionally protected.555 Further, there was no evidence to support a reasonable fear of such interference.556 Although Beussinks speech was provocative and challenging, the court stated that it was the type of speech that most needed the protections of the First Amendment.557 Accordingly, the court found that Beu ssink was likely to succeed on his First Amendment claim because individual st udent speech that is unpopular but does not substantially interfere wi th school discipline is entitled to protection.558 A U.S. District Court in Pennsylvania relied on Beussink and ruled in 200 1 that a student sent e-mail did not satisfy Tinker s substantial disruption test in order to allow school authorities to punish the student for the speech.559 Although the students speech was offensive 551 Id (quoting Tinker, 393 U.S. 503, 509 (1969). 552 Id 553 Id 554 Id 555 Id at 1181. 556 Id 557 Id at 1182. 558 Id 559 See Killion v. Franklin Regional School Dist., 136 F. Supp. 2d 446, 455 (W.D. Pa. 2001). 88

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to some school authorities and used vulgar langu age, the court held that students cannot be punished for such speech occurring off school grounds, absent exceptional circumstances.560 The schools failure to demonstrate exceptional ci rcumstances and any reasonable fear of a substantial interference allowed the court to gran t summary judgment in favor of the student on the First Amendment claim.561 This court battle in Pennsylvania began wh en Zachariah Paul, a student at Franklin Regional High School, was angered by the denial of a student parking permit and the imposition of rules and regulations for track team members.562 As a result, Paul created a Top Ten list about the athletic dire ctor, which contained, inter alia statements regarding the directors appearance.563 Paul composed and assembled the list at home after school hours.564 He e-mailed the list to friends fr om his home computer.565 Paul did not print or c opy the list to bring it on to school premises.566 Several weeks later, the list did appear in the schools teachers lounge.567An unidentified student had reformatted the original e-mail and distributed the document on school grounds.568 When called to the principals office, Paul adm itted to composing the list but adamantly denied 560 Id at 457. 561 Id at 458. The plaintiff also argued that the school districts policy was vague and overbroad. Id The school district did not address the matter in its pleadings to the court, and the court granted summary in favor of the student on this claims as well. Id 562 Id at 448. 563 Id 564 Id 565 Id 566 Id 567 Id at 449. 568 Id 89

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bringing the list to school grounds.569 The principal instructed Pa ul to bring a copy of the original e-mail the following day.570 The following day, Paul and his mother went to the principals office where they were informed that Paul would be suspended for ten days because the list (1) contained offensive remarks about school officials, (2) was found on school ground and (3) Paul admitted to creating the s, list.571 Paul and his mother commenced a civil acti on seeking a preliminary injunction for First and Fourteenth Amendment violations.572 The court focused heavily on the First Amendment claims and relied upon the student speech trilogy as precedent.573 The court summarized the trilogy and stated that Fraser allowed a school to categorically prohibit lewd, vulgar, or profane language on school property and Hazelwood allowed censorship of school-sponsored speech. However, as the court interprete d it, all speech falling outside of these categories must meet Tinker s substantial disruption test in order for school officials to punish it withou t violating the First Amendment.574 Applying the Tinker standard, the court found th at the school failed to satisfy Tinker s substantial disruption test.575 The court emphasized that school officials au thority over off-campus expression is much more limited than expression on school grounds.576 The court cited a few cases, including 569 Id 570 Id 571 Id 572 Id Under the Fourteenth Amendment claim. Paul contended that the district violated his rights to procedural due process by failing to provide written no tice prior to a suspension hearing. Id at 451. The court granted summary judgment on this claim as well finding that the sc hool district violated its own policy of notice. Id 573 See id at 452-453. 574 Id at 453 (citing Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 214 (3d Cir. 2001)). 575 Id at 455. 576 Id at 454. 90

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Beussink to support the notion that these off-campus speech cases must meet Tinkers substantial disruption test.577 It further noted that c ourts also have applied Tinker even where the off-campus speech makes its way to cam pus, even if by some other student.578 Applying Tinker to the facts at hand, the court found the school failed to provide sufficient evidence to support that a subs tantial disruption occurred.579 First, the school failed to provide any evidence that any disruption did in fact occur. Second, there was no evidence that teachers were incapable of teaching or contro lling their classes because of the list.580 Third, the list appeared several days before the administration became aware of its existence, and at least one week passed before the school took any action.581 Finally, Pauls form of speech was not threatening.582 The absences of threats or actual disrupti on lead the court to c onclude that Pauls suspension was improper.583 However, the court continued its analysis and then looked to the schools argument that the suspension was appropriate because Pauls speech was lewd and obscene, and, therefore punishable under Fraser.584 The court accepted that Fraser made clear that school officials may punish explicit, indecent, or lewd speech, but it also cited Justice Brennans concurring opinion which stated: if [Fraser] had given the same sp eech outside of the school environment, he could not have been penalized simply because governme nt officials considered his language to be 577 See id 578 Id at 454-55. 579 See id at 455. 580 Id 581 Id 582 Id 583 Id 584 Id at 456. 91

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inappropriate[.]585 Likewise, the court found that other courts considering lewd and obscene speech occurring off school grounds had held that students cannot be punished for such speech, absent exceptional circumstances.586 Thus, while school officials ma y have been able to punish the speech had it occurred on school grounds, their authority could not reach Pauls off-campus speech; therefore, the court granted Pauls motion for summary judgment.587 Although the Pennsylvania district court found in favor of Paul, a year later the Supreme Court of Pennsylvania ruled against a student in a factually similar case.588 The states high court found that the school district did not violate the U.S. Constitution by punishing a student for posting a Web site that contained derogatory, pr ofane, offensive, and threatening statements directed toward a school teacher and the principal.589 The state court anal yzed the case and found that the students Internet speech was lewd and obscene and cause a substantial disruption to the school environment.590 Thus, the court reached the same conclusion that there was no First Amendment violation under both Tinker and Fraser.591 The case involved an eighth-grade student, J.S., a minor, who created a Web site from home titled Teacher Sux.592 The Web site was created solely on the students own time, from his home computer, and it was not part of a school project nor sponsored by the school 585 Id (citing Fraser 478 U.S. at 68 (citing Cohen v. California, 403 U.S. 15 (1971)). m Area Sch. Dist., 807 A.2d 847 (Pa. 2002). 0. 586 Id at 457. 587 Id at 458. 588 J.S. v. Bethlehe589 Id at 850. 590 Id at 868-69. 591 Id at 868-7592 Id at 851. 92

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district.593 The Web site contained a disc laimer that stated by entering the site, visitors agreed to not tell any employees of the school district about th e site, reveal the identity of the site, or cause trouble for the sites creator.594 The content of the Web site co nsisted of numerous pages made derogatory, profane, offensive and threatening comments, primarily about the students algebra teacher, Kathleen Fulmer. that lips.596 595 The comments were presented through written words, pictures, animation, and sound c The Web page that raised the most concer n was regarding Fulmer and was titled Why Should She Die?597 The page requested that the reader re view reasons provided for why Fulmer should die and then asked for $20 to help pay for the hitman.598 The page listed 136 times F You Mrs. Fulmer. You Are A B[]. You Area A Stupid B[] .599 Another page contained a drawing of Fulmer with her head cu t off and blood dripping from her neck.600 Students, faculty, and school di strict administrators ultima tely viewed the Web site.601 The school principal believed the threats to be serious and called a faculty meeting.602 The teachers t 851. 2. t 852. 593 Id at 850. 594 Id at 851. 595 Id a596 Id 597 Id 598 Id 599 Id 600 Id 601 Id at 851-5602 Id a 93

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were ill ing as a r he of its existence.610 Moreover, the schoo 612 not told the specific nature of the situ ation at the meeting, but the school principal did inform Fulmer of the sites existence.603 At trial, Fulmer testified that she was fright ened and feared that someone would try to k her.604 Fulmer suffered stress, anxiety, weight loss, loss of sleep, and a general loss of well be esult of viewing the Web site.605 She was required to take anti-anxiety, anti-depressant medication.606 Ultimately, Fulmer was unable to return to school to finish the school year.607 The school principal explained at trial that the Web site caused the school to be at a low point that was worse than anything that he had encountered in forty years of education.608 J.S. continued to attend classes and participate in extra-curricular activities during this time.609 T school district did not request that J.S. remove the Web site, but rather J.S. removed the site on his own about one week after the prin cipal became aware l district did not take any action to punish J.S. during the re mainder of the school year, and no form of a psychological evaluation was requested.611 Then, after the end of the school year, the school di strict sent a letter to J.S. and his parents informing them that it was aware of the Web site and intended to suspend J.S. for three days. Id Fulmer applied for and was granted a medical leave. Id As a result, three substitute teachers were required to ed. Id The court noted that this disrupted the educational process of the students. 603 Id 604 Id 605 Id 606 Id 607be utiliz608 Id 609 Id 610 Id 611 Id 612 Id 94

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After a hearing on the suspension, the school district opted to ex tend the suspension to ten days, and then began expulsion proceedings against J.S.613 At the expulsion hearing,614 the school district concluded that (1) certain statements c onstituted a threat to a teacher; (2) the statements constituted harassment; (3) the statem ents constituted disrespect that resulted in actual harm to the health, safety, and welfare of the school comm unity; (4) the school dist ricts code of con prohibi duct ted such student conduct; an d (5) the statements cased actual harm to Fulmer, as well as to oth lated mendment rights.617 The trial court affirmed th e school districts decision.618 J.S. appea ts g er students and teachers.615 Based on these findings, the sc hool district voted to expel J.S.616 J.S. appealed to the Court of Common Pleas and argued that the schoo l district vio J.S.s First A led to the Commonwealth Court.619 That court also affirm ed the school districts decision.620 The Pennsylvania Supreme Court took the case to review the issue of whether the lower court erred in its conclusion that the school district did not viol ate J.S.s First Amendment righ by punishing him for posting the Web site.621 The court approached the issue by first recognizin By the time of the expulsion hearing, J.S. was enrolled in an out-of-state school for the upcoming year. Id at 853. was unable to attend the expulsion hearing. Id t 853. 613 Id 614As a result, J.S615 Id a616 Id 617 Id 618 Id 619 Id 620 Id 621 Id 95

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that the unbridled free expression of sp eech is not permissible in every setting.622 The noted that applying this notion to fre court edom of sp eech in the school setti ng required an approach that c der receive not ments fact th at Fulmer had no reason to believe J.S. had the propensity to engag onsiders and balances both the students co nstitutional rights with the maintenance of or and a proper educational environment.623 Against this backdrop, th e court turned to the arguments presented by the parties. First, the court considered whether the Web s ite contained a true threat as the school district contended.624 The court noted that if considered a true threat, the Web site would no constitutional protection under the available case law.625 The court adopted a narrow definition of a true threat: comm unication that is a serious expre ssion if intent to inflict harm.626 Looking at the totality of the circumstances, the court concluded J.S.s Web site did not constitute a true threat under this definition.627 The court considered th at the Web site was communicated directly to Fulmer, that there was a lack of evidence J.S. made similar state on other occasions, and the e in violence.628 Moreover, the court viewed the school districts la ck of immediate notification and action as a dire ct counter to the school distri cts notion that the Web site constituted true threats.629 622rry Local Educators Assoc., 460 U.S. 37 (1983). 623 624856. 625 626 627t 859. 628 629 Id (citing Perry Education Assoc. v. Pe Id at 855. Id at Id Id at 858. Id a Id Id at 860. 96

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The court next analyzed the facts of the cas e against the student speech trilogy. H the court noted that the U.S. S upreme Court had not revisited student speech in fifteen years, and, thus the scope and application of these cases under diff owever, ering circumstances, continue to evolv sis ed in a a personnel is brought on to campus or accessed at school by its originator, the sp hat a choold by e.630 According to the court, the growth of the Internet had further complicated the analy of speech restrictions.631 Based upon the student speech case trilogy and the differing circumstances since those cases, the court enumerat ed a number of factors to be consider constitutional analysis of a students freedom of speech.632 First, the court stated that the issue of the location of the speech must be resolved.633 Looking at the instant case, the court found a su fficient nexus between the Web site and the school campus to consider the speech as occurring on campus.634 The court reached this conclusion because the Web site was accessed by J.S. at school on a school computer in a classroom and shown to a fellow student.635 The court held that where speech that is aimed at specific school or its eech is considered on-campus speech.636 The court even left ope n the possibility t student may be deemed to have engaged in on-campus speech when the student posts s targeted material in a manner known to be freely accessible from school and it is accesse others at school.637 t 863. t 864. t 865. 630 Id a631 Id 632 Id a633 Id 634 Id a635 Id 636 Id 637 Id ., n. 12. 97

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Second, if the speech is considered on-cam pus speech, then other factors must be considered: the form of speech, the effect of speech, the set ting in which the speech is communicated, and finally whether the speech is part of a school sponsored expressive activity.638 The court established that the type of speech at issue was not the political speech in Tinker that received greater protectio n than the lewd, vulgar and offensive speech at issue in Frase tly n .642 The ined that those courts focused on Tinker in their analyses, but was not convinced that r to analyses.645 r.639 Similarly, the speech, though considered lewd, vulgar, and offensive, was not exac analogous to Fraser because it was not expressed at any o fficial school event or even during a class.640 But the court was able to rule out any relation to Hazelwood as there was no suggestio that the school district sponsored the speech.641 Without direct guidance from the U.S. Suprem e Court, the court looked to other lower courts that had considered student speech ri ghts in the realm of Internet communication court determ eliance solely on Tinker would be the appropriate standard.643 But the court refused decide definitively whether Tinker or Fraser was the appropriate case to apply.644 Thus, the court first applied Fraser and then applied Tinker, reaching the same conclusion under both t 865. g Killion v. Franklin Regional School District, 13 6 F. Supp. 2d 446 (W.D. Pa. 2001); Emmett v. l District No. 415, 92 F. Supp. 2d 1099 (W.D. Wash. 2000); Beussink v. Woodland, 30 F. Supp. 3d 1175 )). t 867. 8. 638 Id at 864. 639 Id a640 Id 641 Id 642 Id at 866 ( citin Kent Schoo E.D. Mo. 1998643 Id a644 Id 645 Id at 867-6 98

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Under Fraser the court determined that the school districts discipline of J.S. was appropriate. Fraser upheld punishment for speech that underm ined the basic function of a public school. ncern for the schoo this nd e both groups were concerned and experienced feelings of helplessness and low mrale.654 Thus, the court found that the facts that arose following J.S.s posting of the Web 646 According to the court, J.S.s speech wa s no less lewd, vulgar, or plainly offensive than the speech expressed in Fraser.647 Thus, solely applying Fraser, the court would have upheld the disciplinary action.648 However, the court questioned whether Fraser was applicable to the instant facts.649 Recognizing that the unique needs of the school setting and co ls education missi on was the foundation for Fraser and Tinker the court agreed that it is within the authority of school officials to bring or der to the school environment, and limits to authority are as set forth in Tinker : the speech must cause substantial disruption.650 The court found that the material contained in the Teacher Sux Web site cause actual a substantial disruption to the work of the school.651 The most substantial disruption the court noted was the direct and indirect impact the site had to the em otional and physical well-being of Fulmer.652 Furthermore, the court found that students were adversely impacted because some students expressed anxiety over the s ite and others visited counselors.653 Staff and parents were also affected becaus o t 868. t 869. 646 Id a647 Id 648 Id 649 Id 650 Id 651 Id a652 Id 653 Id 654 Id 99

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site c hat r y r of the stude assist wanted something to do. The Web site was titled Sat ans web page, and stated: ic is cool. School sucks. If you are reading th is you probably know me and Think Im [sic] ss. so [sic] what? If you dont know me you will see. I hope you enjoy the page. rock,I hate, and music that is cool. The bottom of the Web site stated: m r last breath, just before verything goes black, spit on their face. Kil ling people is wrong dont do It [sic]. unless say hi. reated an actual and substantial interference with the work of the school to a magnitude t satisfied Tinker .655 In a 2002 case, a U.S. District Court for the Eastern District of Mi chigan reiterated the ruling of J.S. v. Bethlehem and held that Tinker allowed school officials to discipline students fo off campus expression only where it is establis hed that the conduct materi ally and substantiall interferes with the educational process.656 This time, however, the outcome was in favo nt. The case arose when Joshua Mahaffey, a student of Waterford Kettering High School, ed another student in creating a Web site for laughs and because they were bored and 657This site has no purpose. It is here to say what is cool, and what sucks. For example, Mus evil, sick and twisted. Well, Some [sic] might call it evil. I like to call it well evil I gue658 The Web site also listed peopl e I wish would die, people th at are cool, movies that music 659SATANS MISSION FOR YOU THIS WEEK: Stab someone for no reason then set the on fire throw them off of a cliff, watch them su ffer and with thei e [sic] Im [sic] there to watch. Or just go to De troit. Hell is right in the middle. Drop by and Mahaffey v. Aldrich, 236 F. Supp. 2d 779, 785 (E.D. Mich. 2002)( citing J.S. v. Bethlehem Area Sch. Dist., 757 Commw. Ct. 2000)). t 781-82. 655 Id 656A.2d 412 (Pa. 657 Id at 781. 658 Id a659 Id 100

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PS: NOW THAT YOUVE READ MY WE B PAGE PLEASE DONT GO KILLING 660 PEOPLE AND STUFF THEN BLAMING IT ON ME. OK? A parent of a Waterford Kettering High stude nt notified the police about the Web site.661 During an interview with police, Mahaffey stated that the high schools computers may have been used to create the Web site. The police notified the school s administration about the Web site. Mahaffey was suspended from school for his contributions to the Web site. Ten days after the suspension commenced, the school princi pal notified Mahaffeys parents that she was recommending to the school board that Maha ffey be expelled from the school district. Mahaffey enrolled in another high school in the school district and brought a claim against the school district based on the First Ame ndment and violation of due process. In deciding whether to grant summary judgment on the free speech claim, the court immediately turned to Tinker. The court noted that Tinker dealt with student activities on school property and that the evid ence in the instant case did not establish that any of Mahaffeys conduct occurred on school property. The mere statement to police that some of the Web site creation may have taken place on school computer s was insufficient for the court to find that 662 663 664 665 666 667 668 t 782. Id 665 Id Mahaffey also brought a due process claim based on this letter and others that followed. Id at 786-89. The eviewed by the court and summary judgment was granted in favor of Mahaffey. Id at 789. d t 784. 660 Id a661 Id 662 Id 663 Id 664claim was r666 Id at 783. 667 See i668 Id a 101

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the co d upon the rights of other students.673 The court found that th n distinguished J.S. v. Bethlehem because in that case the cour t had found that the students Web nduct occurred on school grounds.669 Thus, the court distinguished Tinker and found that Mahaffeys conduct could not be punished under the First Amendment.670 The court, however, did not end its analysis with finding the conduct occurred off school property.671 The court next analyzed the facts assumi ng that the conduct in question did occur on school property.672 The court stressed that Tinker established that even if the student expression occurred on school property, it may be punished onl y when that speech s ubstantially interfere with the work of the school or impi nged ere was no evidence that the Web site interf ered with the work of the school or that any other students rights were impinged.674 Thus, the court denied the schools argument th at it was allowed to discipline students for off campus conduct if the disc iplinary rule was reasonable a nd the off campus conduct had a effect on the discipline or general welfare of the school.675 To support its argument, the school cited several cases, including J.S. v. Bethlehem .676 The court found that none of these cases supported the schools punishment of Mahaffeys off-campus speech.677 The court specifically 669 670 671d 672 673quoting Tinker, 89 S. Ct. at 738). 674 675 Id Id See i Id Id ( Id Id 676 Id 677 Id 102

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site did interfere with the educational process.678 Thus, absent a showing of disruption on the record, the Mahaffey court found that the school was prohibited from pu nishing Mahaffeys offcamp d ment us speech.679 The court also rejected the schools argumen t that Mahaffeys speech was not afforde First Amendment protection b ecause it constituted threats.680 The court looked to the Sixth Circuits definition of a true thr eat: a statement, written or oral, made in a context or under such circumstances wherein a reasonabl e person would foresee that the statement would be interpreted by those to whom the maker communicates the stat ement as a serious expression of an intention to inflict bodily harm upon or take the life of the target, and that the statement no be the result of mistake, duress, or coercion.681 Using this definition in its analysis, the court first determined that there was no evidence that Mahaffey communicated the statements on the Web site to anyone.682 Second, other than lis ting the names of other student s on the Web site, there was no threat made against any of the students.683 Furthermore, Mahaffey included the PS state that warned readers to not go killing people.684 Thus, in the courts opinion, a reasonable person in Mahaffeys place would not foresee that the statements on the Web site would be interpreted as a serious expression of an intent to harm or kill anyone listed on the Web site.685 Id Recall that in J.S. v. Bethlehem the court found that the evidence of the teachers in ability to complete the school year and the medi cal leave of absence was sufficien t to find a disruption to the educational process. The court ffey cited this to show that in J.S. v. Bethlehem there was a finding of interference with the educational pr. Id at 785. 680U.S. v. Lineberry, 7 Fed. Appx. 5 (6 th Cir. 2001). 682t 786. 684 678in Maha ocess679 Id Id 681 Id ( quoting Id a683 Id Id 103

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Accordingly, the court found that the statements on the Web site did not constitute a threat and were, l uncertainty on the proper analysis for student speech on the Internet. Accordingly, there likely remains uncertainty on the proper analysis for student speech on online social networks. therefore, protected speech.686 With a court finding that Mahaffeys off-campus speech on the Internet and another courts finding that the speech of J.S. was punishable because it created a material and substantial interference, the cases indicate that courts are likely to apply Tinker to Internet speech cases. The outcomes of similar cases tend to vary because each court interprets material and substantia interference to different degrees. However, each of these cases are authoritative in only a limited number of jurisdictions. Thus, there remains 685 Id 686 Id 104

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CHAPTER 4 ONLINE SOCIAL NETWORKS CASES Online social networks MySpace and Facebook are becoming a topic of concern in a variety of court cases, indicati ng the sites popularity and the le gal issues they produce. From looking at whether MySpace was liable for the sexua l assault of a minor who misrepresented her age and arranged to meet a 19-year-old man, who sexually assaulted her,687 to determining whether a friend request on MySpace violated an order of protection,688 the online social networks are presenting courts wi th novel issues of law. Perhaps the answers to these issues are available in other areas of the law, but perhaps new standards and tests must be established to analyze online social networks While no clear standards have emerged, the array of cases are indicative that courts have to learn more about online social ne tworks and the issues of law brought forth in their usage. Online Social Networks in Court The popularity of online social networks has brought the technology to the forefront of legal issues in courts across the nation, just as many technologies before it. Some courts are being asked to address novel issues of law, while others are accep ting online social networks as evidence in the record. For instance one court us ed parents MySpace profiles as evidence of sexual abuse of a minor in a case regardi ng the termination of parental rights.689 Another court had to determine whether MySpace was liable for the sexual assault of a minor who misrepresented her age and arranged to meet a 19-year-old man, who sexually assaulted her.690 687 See Jane Doe v. MySpace, Inc., 474 F. Supp. 2d 843 (W.D Tex. 2007). 688 See People v. Fernino, 2008 N.Y. Misc. LEXIS 439 (N.Y. Crim. Ct. 2008). 689 See e.g. State v. Cecil, 655 S.E. 2d 517 (W. Va. 2007). 690 See Jane Doe v. MySpace, Inc., 474 F. Supp. 2d 843 (W.D Tex. 2007). 105

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The Criminal Court of the City of New Yo rk had to determine whether a defendant violated a Family Court order of protection by submitting a friend request on MySpace.691 By order of the court, the defendant was to have no contact with the respondent.692 The Criminal Court found that although the res pondent could simply deny the fr iend request, and in essence ignore the request, the defendant st ill violated the protective order.693 The court held that the defendant used MySpace as a conduit for commun ication prohibited by the temporary order of protection.694 The court found no difference in the frie nd request than the defendant asking an agent to ask the respondent to be their friend an action that would clea rly be prohibited by the order of protection.695 In 2007, a U.S. District Court for the Wester n District of Texas ruled that MySpace was immune from a negligence law suit unde r the Communications Decency Act of 1996.696 The instant case surrounde d a plaintiffs697 creation of a profile when plaintiff was thirteen years old.698 Plaintiff lied about her age and represente d that she was eighteen years old when she joined the online social network.699 Plaintiff alleged that Pete Solis a nineteen year old, initiated 691 People v. Fernino, 2008 N.Y. Misc. LEXIS 439 at *2 (N.Y. Crim. Ct. 2008). 692 Id at *3. 693 Id at *6. 694 Id at *6. 695 Id at *6. 696 Jane Doe v. MySpace, Inc., 474 F. Supp. 2d 843 (W .D. Tex. 2007). 697 The leading plaintiff in the case was Jane Doe, the moth er of Julie Doe. Julie Doe was the plaintiff who created the MySpace profile and is herein referred to as the plaintiff. 698 Jane Doe v. MySpace 474 F. Supp 2d at 846. Recall that MySpace requires users to be fourteen years old to create a profile on the on line social network. 699 Id 106

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contact with her through MySpace when she was fourteen years old.700 Subsequently, the plaintiff provided Solis with her phone numbe r and the two arranged to meet for a date.701 Plaintiff alleged that during the m eeting Solis sexually assaulted her.702 Plaintiffs mother reported the sexual assault and Solis was subseque ntly arrested and inci ted for a second degree felony.703 Plaintiff, by and through her mother, br ought an action against MySpace asserting negligence, gross negligence, fra ud, and negligent misrepresentation.704 MySpace moved to dismiss the case asserti ng it was immune from suit under the Communications Decency Act of 1996 (CDA).705 The CDA provides that no provider or user of an interactive computer service shall be treated as the publis her or speaker of any information provided by another inform ation content provider.706 The court recognized that the intent behind the CDA was to promote the continued development of the Internet and other interactive services.707 Congress wanted to shield Web site op erators and other interactive computer services from being crippled by lawsuits arising out of third-party communications.708 The cour found that MySpace fit the statutory definition of an interactive computer service, and it was thus immune from the plai ntiffs lawsuit under the CDA t .709 700 Id 701 Id 702 Id 703 Id 704 Id 705 Id 706 Id (citing 42 U.S.C. 230(c)(1)). 707 Id at 847. 708 Id 709 Id at 846. 107

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Similarly, a U.S. District Court for the Centra l District of California found that MySpaces messaging system fit the statutory definitions of the CAN-SPAM Act.710 MySpace sought an injunction against the actions of Sanford Wall ace, who engaged in an abusive multi-faceted scheme to disseminate commercial me ssages and solicitation to MySpace users.711 MySpace discovered that Wallace had created more th an 11,000 similar MySpace profile pages and 11,383 unique AOL e-mail accounts to register those profiles.712 MySpace concluded that Wallace must have used an automated bot to re gister these profiles and addresses.713 By doing so, Wallace circumvented MySpaces unique e-mail address registration requirement and circumvented MySpaces daily limit on the number of messages that can be sent from any one profile in a single day.714 In pursuit of a preliminary injunction, MySpace claimed it had been harmed by Wallaces activity, suffered harm to its reputa tion from 800 complaints received, and possibly contained adult material that minors might view as a result of Wallaces conduct.715 The court granted the preliminary injunction finding that MySpace proved a likelihood of success on the claim that it was protected fr om Wallaces activities under the CAN-SPAM Act.716 The court found it persuasive that the C AN-SPAM Acts definition of electronic mail 710 MySpace, Inc. v. Wallace, 498 F. Su pp. 2d 1293, 2007 U.S. Dist. LEXIS 56814 (2007). The CAN-SPAM Act establishes requirements for those who send commercial e-mail, spells out penalties for spammers and companies whose products are advertised in spam if they violate the law, and gives consumers the right to ask e-mailers to stop spamming them. Federal Trade Commission, The CAN-SPAM Act http://www.ftc.gov/bcp/conline/pubs/buspubs/canspam.shtm (last visited April 13, 2008). 711 MySpace, Inc. v. Wallace, 2007 U.S. Dist. LEXIS 56814 at *3. 712 Id 713 Id at *4. 714 Id 715 Id at *6. 716 Id at *36. 108

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message was intended to include systems such as the MySpace message system.717 Furthermore, a public interest was served by th e preliminary injunction: protecting against the costs and burden associated with commercial spam.718 Thus, the court granted a preliminary injunction against Wallaces activities. In doing so, the court indicated that MySpace may be protected under the CAN-SPAM Act from users who use the system for commercial spam purposes. These cases are indicative of the various issues that online social ne tworks raise. These cases may only be a small sample of the possi ble causes of actions available, but they nonetheless show that courts ar e being forced to address onlin e social networks. These cases early in the history of online so cial networks may provide some insight as to how courts will approach the issues in student speech cases and other areas of law. Students and Online Social Networks Although few in number, some cases have addr essed student speech issues on online social networks. The research employed in this thesis revealed four cases that involve student speech on online social networks. The four cases were de cided in 2007. None of the cases are from the U.S. Supreme Court, nor are any of the cases from a federal appellate court. Thus, while the cases may be binding in only a li mited number of jurisdictions, they nonetheless provide a first look at how courts may decide student speech cases on online social networks. J.S. v. Blue Mountain School District The case of J.S., a minor, involved a fourt een-year-old, eighth-grade student at Blue Mountain Middle School, Orwigsburg, Pennsylvania.719 On or about March 18, 2007, J.S. and a 717 Id at *10. 718 Id at *30. 719 J.S. v. Blue Mountain Sch. Dist., 2007 U.S. Dist. LEXIS 23406 at *1 (M.D. Pa. 2007). 109

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fellow student created a MySpace profile page for the school principal, James McGonigle.720 In the profile page, the students indicated that McGonigle was a married, bisexual man whose interests included fucking in [his] office and hitting on students and their parents.721 The profile page further indicated th at the principal was a sex addi ct who loves children and any kind of sex.722 The profile made disparaging remarks about McGonigles wife and children, and it contained a picture of McG onigle that was copied off the school districts Web site.723 Word of the fake profile spread to students of the school, and students eventually told McGonigle about the fake profile.724 After an investigation, McGonigle determined that J.S. and a fellow student were respons ible for the profile page.725 Finding the contents of the profile to be very upsetting, McGonigle suspended J.S. from school for ten days.726 J.S. instituted the lawsuit claiming that the First Amendment precluded the school district from suspending a student from classes for two weeks for a profile th at was non-threatening, non-obscene and a parody.727 The U.S. District Court for th e Middle District of Pennsylvania heard the issues on a motion for a preliminary injunction.728 Thus, the court only needed to determine J.S.s likelihood of success on the merits of the claim.729 720 Id at *2. 721 Id at *2. 722 Id at *2. 723 Id at *2. 724 Id at *3. 725 Id at *3. 726 Id at *3. 727 Id at *4. 728 Id at *1. 729 Id at *5. 110

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In determining the likelihood of success on the me rits, the court established that the school district may regulate speech if the speech substa ntially disrupts school ope rations or interferes with the rights of others.730 The court noted that the federal c ourts do not sit as a super-school board.731 Rather the court relied on language in Tinker that stated the Supreme Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental c onstitutional safeguards, to prescribe and control conduct in the schools.732 The court found that J.S. did not establish a likelihood of success on the merits.733 First, questions existed as to the extent that th e MySpace profile disrupted school operations.734 The court accepted that there was at le ast some disruption in that the principal had to take time to investigate the issue and guidance counselor wa s taken away from her duties to sit in on meetings with J.S.735 Furthermore, the court found that issues existed as to whether or not J.S.s speech was protected by the First Amendment.736 J.S. argued that the sp eech was protected as a parody, but the school district argued that the speech was defamatory and, therefore, not protected.737 The court held that at this juncture of the case, J.S. had not established a likelihood of success on the merits.738 Thus, the court denied the motion for a preliminary injunction.739 730 Id at *5 ( citing Saxe v. State College Area Sch. Dist., 240 F.3d 200, 214 (3d Cir. 2001)). 731 Id at *6. 732 Id at *6 ( quoting Tinker 393 U.S. 503, 507 (1969)). 733 Id at *6. 734 Id at *6. 735 Id at *6. 736 Id at *7. 737 Id at *7. 738 Id at *7. 111

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A.B. v. Indiana In February 2006, Shawn Gobert, principal of Greencastle Middle School, Indiana, was informed that a derogatory Web page was crea ted on the Internet con cerning Matthew Taylor, the schools assistant principal.740 In investigating the deroga tory Web page, Gobert also uncovered a profile page on MySpace purpor ting to have been created by Gobert.741 It was later discovered that a student, referred to as R.B., had created the prof ile page and had invited several of her friends, including the minor plaintiff, A.B., to access the profile.742 A.B. made several postings to R.B.s created profile page, incl uding one on February 15, 2006, that became the focus of the instant courts inquiry. The posting stated: Hey you piece of greencastle shit. What the fuck do you think of me [now] that you can[t] control me? Huh? Ha h ha guess what Ill wear my fucking piercings all day long and to school and you can[t] do shit about it! Ha ha fucking ha! St upid bastard! Oh and kudos to whomever made this (pretty sure I know who).743 Indiana filed a delinquency petition alleging A.B. committed acts that, if committed by an adult, would have constituted identity deception and harassment.744 The juvenile court approved the petition and ruled th at A.B. was delinquent.745 As a result of this finding, the juvenile court placed A.B. on nine months of probation, and A.B. appealed.746 739 Id at *8. 740 A.B. v. Indiana, 2007 Ind. App. LEXIS 694 at *2 (Ct. App. Ind. 2007). 741 Id 742 Id 743 Id at *3. 744 Id 745 Id at *4. 746 Id 112

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On appeal, A.B. argued that the pos ting was protected political speech.747 She asserted that her comment was made in a public forum a nd criticized Gobert as a state actor, or government official, and his implementation of a school policy proscribing piercings.748 Thus, A.B. asserted that the posting was a legitimate communication e nvisioned within the bounds of protected political speech.749 The Indiana Court of Appeal relied on stat e case law that held expressive activity is political if its point is to comment on govern ment action, whether appl auding an old policy or proposing a new one, or opposing a ca ndidate for office, or criticiz ing the conduct of an official acting under color of law.750 The court emphasized that the ju risprudence is clear that school authorities are state actors for purposes of freedom of expression.751 The court held that while it had little regard for A.B.s use of vulgar epithe ts, the overall message constituted political speech because the thrust of A.B.s expression focused explicitly on opposing a st ate actors actions in enforcing a certain school policy.752 The state failed to produce ev idence that A.B.s expression inflicted particularized harm analogous to tortuou s injury as required to rebut A.B.s claim of political speech.753Thus, the appellate court reversed the decision of the juvenile court and remanded with instructions to vacate the adjudication.754 747 Id at *6. 748 Id. at *6-*7. 749 Id 750 Id. at *11. 751 Id at 12 (citing New Jersey v. T.L.O ., 469 U.S. 325; Tinker v. DesMoines Independent Community School District 393 U.S. 503). 752 Id at *13. 753 Id 754 Id at *14. 113

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Requa v. Kent School District No. 415 The case of Gregory Requa involved the posting of a link to a MySpace profile.755 While the content of the MySpace profile itself was not at issue, the case does indicate another area of concern regarding online social networks and st udent speech. Here, Requa was disciplined for video footage taken during cl ass time and subsequently li nked to his MySpace profile756. Requa was suspended and accordingly filed a lawsuit alleging violations of his First Amendment rights.757 At the time of his suspension, Requa was a senior at Kentridge High School.758 The video footage taken at issue was take n on at least two separate occasions of a teacher and her classroom during Requas junior year.759 The video footage was edited, graphics and music were added, and the resulting footage was posted on the YouTube.com Web site.760 The video featured (1) footage of a student making rabbit ears and pelvic thrusts behind the teachers back and (2) footage of the teachers buttock accomp anied by graphics stating Caution Booty Ahead and a booty rap song.761 Requa maintained that he played no role in the capturing or editing the video footage.762 He did admit to posting the video li nk to his MySpace profile but removed Kent School Dist. 492 F. Supp. 2d 1272, 1274 (W.D. Wash. 2007) t 1273. 755 Requa v.756 See id 757 Id a758 Id 759 Id 760 Id at 1274. 761 Id at 1280. 762 Id at, 1274-75 114

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the link when he learned, by way of news c overage, that the video could be viewed as harassment.763 The school principal issued a forty-day suspension764 and Requa appealed pursuant to Washingtons Administrative Code. as e-post uptive, ine their e schools primary responsibility to provide safe and supportive learning and working 765 Requa asserted that he wa s being punished for his offcampus activity because the school had insufficient evidence to connect him to the secret, inclass filming of the teacher.766 The court found that there was no evidence to suggest Requa w being singled out for anything other than the classroom activity for which he was accused.767 The district did not demand Requa to remove th e YouTube video, nor did it prohibit him from ring the MySpace link.768 However, Requa argued that even if the school district could prove his involvement in the production and pos ting of the video, the video was protected speech.769 The court held that the First Amendment doe s not extend its coverage to disr class activity of this nature.770 The court recognized that the ability of students to critiqu teachers is a legitimate and important right; however, it is one that must be balanced against th A letter to Requas parents allowed for twenty days to be held in abeyance if Requa completed a research paper nts of the students whom he had determined were responsible from the video. Id The findings were based on the stigation working backward from a student filmed standing behind the teacher. Id at 1274. t 1278. 763 Id at 1274. 764while on suspension. Id at 1275. 765 Id. Plaintiff was not the only student issued a suspension. Id The school principal sent letters to the pare principals inve766 Id a767 Id. 768 Id 769 Id at 1279. 770 Id at 1281. 115

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environment.771 Ultimately, the court decided in favo r of the school district because the disruptive, in-class activity of secretly videotaping the teacher was not protected by the First that th e off-campus activity of posting a link to the video nior Hicko ed the in .778 Layshock sent the Amendment. However, the court did note on the MySpace profile page wa s protected out-of-school expression.772 Layshock v. Hermitage School District The final and most recent case found in the re search involved a seventeen-year-old se who created a parody profile of his high school principal on MySpace.773 On or about December 10, 2005, Justin Layshock created a MySpace profile page of Eric Trosch, the principal of r High School, Pennsylvania.774 Layshock created the profile page, which he characterized as a parody, using his grandmothers com puter, at her home, during non-school hours.775 In answering the questions of the MySpace pr ofile page template, Layshock answer questions centered on the theme of big.776 The answers ranged from nonsensical answers to what the court characterized as crude juvenile language.777 For example, in response to a question regarding alcohol use, Layshock posted on the profile big keg behind my desk, and response to a question regarding dating, Layshock posted big hard-on t 1283. Hermitage School Dist., 496 F. Supp. 2d 587, 590-91 (W.D. Pa. 2007). t 591. 771 Id a772 Id 773 Layshock v774 Id a775 Id 776 Id 777 Id 778 Id 116

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profil existence tion er Web addreses and students found other ways to access the profil o other classmates, although he did not claim authorship of the page. ol e to other students by adding friends to th e profile and eventually word of the profile reached practically a ll of the student body of Hickory High School.779 During December 2005, three other unflattering profiles of Trosch appeared on MySpace, and they contained more vulgar and offensive statements.780 Trosch first learned of the of a profile from his daughter, but it was not the profile created by Layshock.781 Upon learning of the profile, Trosch aske d the schools technology direct or to disable the profile.782 The technology director blocked access to MySpace.com from the school computers, but this ac was ineffective as MySpace had oth es.783 Subsequently, Trosh became aware of the other two profile s, including the one created by Layshock.784 Layshock did engage in conduct that brought the profile into th e school environment.785First, Layshock accessed the profile page from a computer in the Spanish classroom.786 Second, Layshock showed the profile t787 There also was evidence that other stude nts had accessed Layshock s profile in scho during computer lab class.788 2. 779 Id 780 Id 781 Id 782 Id 783 Id 784 Id 785 Id 786 Id 787 Id 788 Id at 59 117

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Trosch convened a teacher meeting four da ys after learning about the profile pages.789 During the meeting, teachers were directed to send all students who mi ght have inform ation about ly with supervision and only in the labs or lib tire k was later advised by a the profiles to Troschs offices.790 The schools co-principal interviewed approximately twenty students in an effort to find out who had created the profiles.791 School administrators sought to complete ly block students from accessing MySpace.792 Trosch contacted MySpace directly and succeeded in having the profiles disabled.793 Computer use at the school was limited for a period of six days, and teachers were in structed to not allow any students to use any co mputer in the classroom.794 If computers were needed for tutoring or research, students were allowed to use the comput ers on rary.795 Subsequently, the school was successful in completely disabling access to the en MySpace.com Web site from the school computers.796 Layshock and his mother were summoned to a meeting with the superintendent and coprincipal.797 At the meeting, Layshock admitted to having created one of the MySpace profiles of Trosch, but no disciplinary action was taken at that time.798 Layshoc id t 593. 789 See 790 Id 791 Id 792 Id 793 Id 794 Id 795 Id 796 Id a797 Id 798 Id 118

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letter nary t it was clear to the court that school administrators need not wait until a subs ical, and that he was suspended and that an informal hearing would be held to determine discipli action.799 At the hearing, Layshock received a ten-day suspension.800 Layshock filed a lawsuit and alleged that the school violated his ri ghts under the First Amendment for punishing him for his parody profile page.801 In deciding on this issue, the cour looked to the student speech trilogy, Morse, and Killion .802 From these cases, the court extracted several principles for its analysis. First, the court recognized that student speech cases must be resolved in light of the special char acteristics of the school environment.803 Second, Fraser did not employ the substantial disruption test set forth in Tinker but in Morse the U.S. Supreme Court refused to read Fraser for the proposition that speech may be proscribed simply because it is offensive.804 Third tantial disruption has alrea dy occurred prior to taking acti on, but mere discomfort will not justify punishment.805 In analyzing the boundaries of the school admini strations authority, the court held that the mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the World Wide Web.806 The test for school authority is not geograph Id Layshocks imposed discipline also included (1) placing him in the high school Alternative Curriculum gh o alleged that the school policies were overbroad and vague and that the schools punishment shocks speech interfered with his parents rights to determine how best to raise, nurture, discipline, and nal claim to be without merit. Id at 606. t 596 ( citing Morse 127 S. Ct. 2618 (2007)). orse 127 S. Ct. 2618). 799 Id 800Education program for the remainder of the school year, (2) banning him from attendance or participation in any events sponsored by or participated in by the school district, and (3) prohibiting him from participating in the hi school graduation ceremony. Id at 594. 801 Id The lawsuit als of Lay educate their children. Id The court determined this fi802 See id at 596-97. 803 Id a804 Id ( citing M805 Id 806 Id at 597. 119

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it is not strictly limited to the schools physical property.807 However, when the speech in question is off cam pus, the school must demonstrate an appropriate nexus.808 The court determ peech rt hock, because unlike Fraser, Layshock engaged in off-campus speech.811 There stantial ined that this jurisdictional question wo uld not be deferred to th e conclusions of school administrators.809 In applying these principles to the instant ca se, the court first found that Layshocks s was lewd, profane, and sexually inappropriate.810 However, this finding did not allow the cou to simply apply Fraser. Rather, the court held that the Fraser test did not justify the schools punishment of Lays was no evidence that Layshock engaged in le wd, profane, or sexually inappropriate speech while in school.812 In applying the Tinker test, the court found that the school had not established a sufficient nexus between Layshocks speech and a substa ntial disruption of the school environment.813 The court found the disruptions to be minimal no cl asses were cancelled, no widespread disorder occurred, there was no violence or student disciplinary action.814 Further, there was no showing that Layshocks in-school activity of showing th e profile to other students caused a sub disruption.815 In fact, statements by the students indicated that teachers were not even aware of 807 Id at 598. t 599. 00. t 600. t 601. 808 Id a809 Id 810 Id 811 Id at 599-6812 Id at 599. 813 Id a814 Id 815 Id a 120

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what use e ction acked o was going on and that after viewing the profiles, students promptly logged off of MySpace.816 Thus, the schools punishme nt was not justified under Tinker because there was no showing of a substantial disruption to the educational process. The court also rejected the sc hools contentions that the puni shment was justified beca Layshocks speech, the profile pa ge, was outside the protections of the First Amendment.817 Th school first argued that the prof ile page was outside the scope of First Amendment prote because it constituted fighting words, wh ich are not protected forms of speech.818 The court found that the fighting words doctrine was not implicated by Layshocks speech because there was no in-person confrontation in cyberspace such that physical violence is likely to be instigated.819 Further, the school argued that the prof ile page was obscene, and therefore l First Amendment protection.820 The court denied this assertion because the site did not appeal t a prurient interest or portray se xual conduct in a patently offensive way so as to rise to the level of obscenity as defined by the U.S. Supreme Court.821 Finally, the school contended that Layshocks speech constituted defamation.822 The court refused to resolve whether the speech was defamation because it found such a claim irrelevant to the dispute.823 The court noted that even if it were to assume the speech was defa matory, the school could not usurp the judicial citing Miller v. California, 413 U.S. 15 (1973)). 816 Id 817 Id at 602. 818 Id 819 Id at 603. 820 Id 821 Id (822 Id 823 Id 121

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systems role in resolvin g civil actions; thu ment was still unjustified.824 Thus, the court ock afforded by the c ourt to the meaning of a material and substantial disruption. No federal appellate opi nion exists on the matter as to provide a farthe r reaching rule. Thus, what remains are lower court opinions with rules and holdings that are precedent in only a small number of jurisdictions. s, the puni sh concluded that the only way for the schoo l to justify the punishment imposed on Laysh would be to demonstrate the pr ofile page created a substantia l disruption in school operations.825 Conclusion The four cases involving stude nt speech on online social networks have followed the student speech trilogy but have reached different conclusions. These differing results seem to lie with the definitions and weight 824 Id 825 Id 122

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CHAPTER 5 ANALYSIS AND CONCLUSION The popularity of online social networks am ong high school students is too prevalent to ignore. Between MySpace and Facebook, the member ship on these online social networks exceeds 200 million. Students spend upward of five hours a day on these sites. As with other technologies among students, the wide spread use of online social ne tworks has become a topic of concern and discussion for school administrato rs. Accordingly, the hotbed issue has become whether school administrators can regulate student speech on online social networks, and if so, when are such regul ations appropriate. Research Summary The U.S. Supreme Court has ruled on four student speech cases, but none of them involve student speech on the Internet, no t to mention online social networks. In these cases, however, the Court has established certain rules to be ap plied by courts in analyzing student speech cases. Determining the rules that would ap ply to online social networks is essentially the main focus of this thesis. In Tinker v. Des Moines the Court found that the wearing of black armbands in protest to the Vietnam War was protected speech under the First Amendment.826 In doing so, the Court also established that sch ools have the authority to prescribe and control conduct in schools.827 Thus, the rule from Tinker was that school authorities could no t regulate student speech absent a finding that the conduct would mat erially and substantially inte rfere with the requirements of appropriate discipline in a schools operation.828 826 Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1968). 827 Id. at 508 (emphasis added). 828 Id 123

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The Court began to limit the Tinker holding nearly twenty years later in the case of Bethel School District No. 403 v. Fraser .829 Here the Court ruled against a students right to free speech and found that the sexually explicit speech was within a schools author ity to regulate and punish.830 Instead of looking at whether the speech caused a material or substantial disruption, the Court recognized a schools ne ed to protect students from exposure to sexually explicit, indecent, or lewd speech.831 Thus, the Court allowed the schoo l to punish the student for the speech despite the absence of a material or s ubstantial disruption to the educational process.832 In the final case of the student speech trilogy, the U.S. Supreme Court moved to a reasonable standard in decidi ng whether school administrators could censor school-sponsored expressive activities.833 With this standard, the Court provid ed school administrators with greater latitude in censoring school-sponsored activities for style and content.834 The justifications provided by the Court included th at school-sponsored expressive activities are not traditional public fora for public discourse and that the scho ol-sponsored activities carry the endorsement of the school.835 The Court did note, however, that any cen sorship would have to be reasonably related to legitimate pedagogical concerns.836 The most recent student speech case deci ded by the U.S. Supreme Court employed a reasonableness standard in determining whether school administrators could punish a student for 829 Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). 830 Id at 684. 831 Id 832 Id at 680-81. 833 Hazelwood Sch. Dist. v. Kuhlmeie r, 484 U.S. 260, 272-73 (1988). 834 Id at 273. 835 Id at 270. 836 Id at 273. 124

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a banner message held up during a school-sponsored event.837 The Court recognized that Congress has charged schools to educate students about the dangers of illegal drug use.838 Accordingly, the Court held that schools are jus tified in and constitutionally permitted to regulate student expression at school ev ents that contribute to the dangers of illegal drug use.839 In evaluating student speech on the Internet lower courts have come to different conclusions in applying the discussed precedents fr om the U.S. Supreme Court. The courts have tended to focus on whether the speech created a material and substantial interference with the educational process.840 Courts have accepted Frasers holding that schools may prohibit sexually explicit, lewd, or obscene speech, bu t they have interpreted this holding to apply only to speech occurring on school grounds.841 One court found that even the po ssibility that some part of a Web site creation occurred on school grounds was insufficient to find that the speech was oncampus speech.842 The Pennsylvania Supreme Court is one cour t that has reached an opposite conclusion regarding student speech on the Internet. The co urt found that a students Web site created a material and substantial interfer ence because of the effect it ha d on one teacher targeted by the Web site.843 The court also held that because the stud ents Web site was accessed at school and was aimed at the schools personnel, there was sufficient evidence that the Web site was on837 Frederick v. Morse, 127 S. Ct. 2618, 2629 (2007). 838 Id at 2628. 839 Id at 2629. 840 See e.g. Emmett v. Kent Sch. Dist. No. 415, 92 F. Supp. 2d 1099, 1090 (W.D. Wash. 2000); Beussink v. Woodland Sch. Dist., 30 F. Supp. 2d 1175 (E.D. Mo. 1998). 841 See id See also Killion v. Franklin Regional Sch. Dist., 13 6 F. Supp. 2d 446, 455 (W.D. Pa. 2001). 842 See Mahaffey v. Aldrich, 236 F. Supp. 2d 779, 784 (Pa. Commw. Ct. 2000)). 843 J.S. v. Bethlehem Area Sch. Dist ., 807 A.2d 847, 869 (Pa. 2002). 125

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campus speech. Thus, the c ourt justified applying Fraser and upholding the schools discipline of a students lewd and obscene Web site.844 Currently, there are only four cases in the lower courts that address student speech on online social networks. Two of the cases pr otected student speech on the online social networks,845 and the other two cases weighed in favor of school authorities in punishing certain speech.846 In the case of A.B. v. Indiana the court protected the speech of a middle school student on the basis that the speech was expressive, political activity.847 Though the speech employed vulgar language, the expression focuse d on opposing the actions of a state actor who was enforcing certain school policies.848 Thus, the court protected the speech as political expression. Though there was no finding or discussi on concerning political speech, the Layshock v. Hermitage School District court also found that a students speech on the onlin e social network was protected.849 The Layshock court determined that the sc hool failed to demonstrate an appropriate nexus between the off-campus speech and a substantial disruption to the educational process.850 The court found there was no substantial in terference based on the absence of several factors: cancelling of classes, widespread disorder, and violen ce or student disciplinary action.851 844 Id at 867-68. 845 Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587, 590-91 (W.D. Pa. 2007); A.B. v. Indiana, 2007 Ind. App. LEXIS 694 (Ct. App. Ind. 2007). 846 J.S. v. Blue Mountain Sch. Dist., 2007 U.S. Dist. LEXI S 23406 (M.D. Pa. 2007).; Requa v. Kent Sch. Dist., 492 F. Supp. 2d 1272 (W.D. Wash. 2007). 847 See A.B., 2007 Ind. App. LEXIS 694 at *13. 848 Id 849 Layshock 496 F. Supp. 2d at 603. 850 Id at 599, 603. 851 Id at 600. 126

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In the two cases finding in favor of school administrators the courts found that there was some disruptive activity involved. In J.S. v. Blue Mount ain School District the court found that a students creation of a fake MySpace profile created some disruption to the school because the profile had to be investigated, which took away the time from the pr incipals schedule and that of a guidance counselor.852Furthermore, the court questioned wh ether the students speech would be unprotected by the First Amendment because of defamatory content.853 Without specifically deciding the merits of this clai m, the court held that the stude nt had not sufficiently shown a likelihood to succeed on the merits of the First Amendment claim.854 Lastly, Requa v. Kent School District also did not support the students First Amendment claim for speech on an online social network.855 Requa is perhaps the most factually distinguishable case among the four. In Requa the court upheld the sc hools punishment not because of the posting to a MySpace profile, but rather for the disruptiv e, in-class activity of secretly videotaping a teacher.856 However, in reaching this conc lusion the court did specify that the off-campus activity of posting the video to a MySpace profile page was protected out-ofschool expression.857 Thus, although the ultimate holding is in favor of the schools authority, Requa does provide some protection to stude nt speech on online social networks. The cases of student speech on online social networks seem to cont inue along the lines of the courts analyses of student sp eech on the Internet. And just as the Internet case s reach various 852 J.S. 2007 U.S. Dist. LEXIS 23406 at *6. 853 Id at *7. 854 Id at *8. 855 Requa 492 F. Supp. 2d at 1272. 856 Id at 1283. 857 Id 127

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results, so do the online social network cases. Th us, it seems that while c ourts generally agree on the rule for analyzing student spe ech on online social networks, it is their application of the rule that produces variances among the courts. Analysis The case law analyzed in this thesis provi des foundational rules for evaluating student speech in general. The use of these rules by lower courts in examining student speech on the Internet demonstrates that while the U.S. Supr eme Court has provided some guidance, courts do not reach identical outcomes in the application of the rules. Thus, until there is guidance from the U.S. Supreme Court on the issue, the facts, ci rcumstances, and rules considered by the lower courts are the most telling for cases involvi ng student speech on online social networks. Research Question 1 Research Question 1 sought to define the ty pes of student speech that enjoy First Amendment protection on online social networ ks. The four court opi nions on point do not specifically indicate certain categories of protected speech. However, two of the cases do indicate that obscenity and defa matory content would not be pr otected for high school students. Thus, just as in any other First Amendment analysis, obscenity woul d fall short of First Amendment protection. Defamation, however, re ceives some First Amendment protection outside the scope of student speech, so these case s indicate a narrowing of student speech rights in comparison to speech rights of adults. Such narrowing is in line with the U.S. Supreme Courts rulings that indicate that while students enjoy some First Amendment protection, it does not rise to the same level as adults. 128

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Political speech continues to be the most protected form of speech and nothing changes when the students speech is on an online social network.858 As theories of the First Amendment illustrate, political speech must remain the most protected form of speech as it contributes to a democratic society and allows individuals to ascertain the truth.859 These theories are advanced by students engaging in political sp eech on online social networks. First, different viewpoints are presented through various student postings. Sec ond, online social networks afford students an opportunity to speak out against stat e actors, such as school official s, just as adults would have the opportunity in newspapers and other publications.860 Lastly, protecting political speech on online social networks becomes an opportunity for schools to teach the First Amendment and provide lessons in civili ty and responsibility. It also is apparent that threats on online soci al networks would not be protected by the First Amendment. However, the threshold issue become s whether a student can make a true threat over the online social network. One court found th at a Web site lacked the direct communication needed to constitute a true threat.861 The student speech would ha ve to show a propensity to engage in violence in order for the language to be considered a true threat, and accordingly unprotected by the First Amendment.862 However, the determinati on of whether student speech is in fact a true threat must be carefully considered as a broad net for threats may inevitably reduce the safety valve function of the speech.863 In other words, if too much speech is banned, 858 See A.B. v. Indiana, 2007 Ind. App. LEXIS 694 (Ct. App. Ind. 2007). 859 See C. Edwin Baker, Scope Of The First Amendment Freedom of Speech 25 UCLA L. Rev. 964, 970 (1978). 860 See A.B. v. Indiana, 2007 Ind. App. LEXIS 694 (Ct. App. Ind. 2007). 861 See J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002). 862 Id at 859. 863 See Clay Calvert, Off-Campus Speech, On-Campus Punishment: Censorship Of the Emerging Internet Underground 7 B.U.J. SCI. & TECH. L. 243, 280 (2001). 129

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then students may not have the opportunity to vent which may in turn cause a rise in violent act in schools. s 4 86In Frederick v. Morse the U.S. Supreme Court granted school officials the authority to censor and punish speech that is reasonably believed to promote illegal drug use.865 Responding to a banner that read, BONG HiTS 4 JESUS, the Court said th e question was not whether the speech was offensive, but rather whether it reasonably could be viewed as promoting illegal drug use.866 The Court stated that while viewpoint discrimination is dangerous to the First Amendment, school officials have a difficult j ob in ensuring powerful messages about drug use are not sent to students unde r the officials supervision.867 The Court found that allowing school officials to regulate student speech that reasonabl y could be viewed as promoting illegal drug use was necessary in order to carry out the educational mission in discouraging the use of drugs.868 Thus, while the courts have not specifically enumerated cat egories of speech that are protected on online social networ ks, it is apparent that a general First Amendment analysis would apply. Such an analysis provides the ut most protection to poli tical speech, but obscenity, and threats would not receive First Amendment prot ection. The 2007 decision in Frederick adds student speech promoting illegal drug use to the category of unprotected speech. With student speech precedents outlining the categories of spe ech that are protected and unprotected, the issue for the courts thus becomes how to categorize the speech on online social networks. 864 See id 865 See Frederick v. Morse, 127 S. Ct. 2618, 2629 (2007). 866 Id 867 See id 868 See id at 2628-29. 130

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Research Question 2 Recognizing that some speech is protected on online social networks, Research Question 2 next looked at how courts balance this First Amendment interest of students against school administrators authority to carry out the educ ational mission. In no instance has a court stated that students enjoy unfettered First Amendment rights. Rather, student speech rights are evaluated in light of the special circumst ances of the educatio nal environment. To accommodate for these special circumstances the U.S. Supreme Court enunciated a rule in Tinker that gave schools authorit y to regulate student speech that creates a material or substantial disruption to the edu cational process. This standard allows students to engage in expressive activities, but also a llows school authorities to main tain control of schools. Schools may not regulate speech simply to avoid awkwardne ss or discomfort in the topics of certain speech. This threshold ensures that school administ rators are not regulating speech based solely on the speechs message or content. Across jurisdictions, courts have presented a variety of viewpoints on what constitutes a material or substantial disruption. Some courts have found it sufficient that a school administrator or teacher was removed from her re gular duties to attend, in some capacity, to the speech at issue. Other courts have stated that a substantial disruption would be evidenced by the canceling of classes, widespread disorder, viol ent acts, or student di sciplinary action. Though varied, the need to show a substa ntial disruption, whether actual or reasonably foreseeable, is one mechanism the courts have employed to create a balance between a scho ols authority and a students rights to free speech. Whether the material and substantial di sruption test remains in effect after Frederick, is yet to be seen. The Frederick Court allowed school officials to ce nsor student speech that reasonably 131

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could be interpreted to promote illegal drug use.869 Thus, Frederick may be interpreted by lower courts as allowing censorship of speech, so long as it is reasonable to believe there is some disruption to the educational mission. In Frederick the Court found that schools are entrusted and mandated to carry out anti-drug messages.870 Based on this mission, schools should be able to censor and punish messages that go against this mission by promoting illegal drug use. This reasoning could be seen as to allo w schools to censor speech so long as it is reasonable to believe the speech goes against the educational mission. For example, suppose a school was teaching abst inence-based sex education and a group of students created signs advocating or promoting various birth cont rol methods. Could the student speech be viewed as disrupting th e educational mission? Perhaps the Frederick standard would not apply because birth cont rol is not illegal as is certain drug use. However, Frederick could support the possibility that if sc hool officials reasonably interpret the speech to be promoting an act against the educational mission then the speech could be censored without offending the First Amendment. Based on the Courts language however, the holding of Frederick is arguably limited to speech during school-sanctioned activities. Within th e first sentence of the majority opinion, the Court established that Fredericks speech occurred at a school-sanctioned activity.871 While the Court clarified that the speech was not schoo l-sponsored, it recognized that school officials have a responsibility to supervise and cont rol students and school -sanctioned functions.872 Whether the reasonableness standard used by the Frederick court would apply to non-school869 Frederick 127 S. Ct. at 2622. 870 See id at 2628-29. 871 Id at 2622. 872 See id 132

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sanctioned events remains unknown. What is clear from Frederick is that the Court is likely to defer to the school officials decisions fo r speech during school-sanction ed events. This could potentially broaden the au thority given to school officials by Fraser. In Fraser the Court gave schools more aut hority to regulate speech that is obscene, lewd, or sexually explicit. This authority was give n recognizing that schoo ls act as guardians of minors in their care, and as such must protect them from exposur e to such content. Courts have, however, placed some restrictions on this authority by genera lly requiring that such speech occur on campus before schools can punish or regulate the speech. Nonetheless, the Courts weigh in favor of school officials when their censorship or punishme nt is the result of obscene, lewd, or sexually explicit speech. The Court in Frederick, however, broadens this deferen ce to include speech that may advocate illegal drug use. The Court specifi cally did state that it was not expanding Fraser to mean that any speech that is offensive can be censored or punished.873 While this provides some safeguards to interpreting Frederick as overruling Tinker and Fraser, the Courts reasoning may tip the balance between school officials author ity and student speech in favor of the school officials. Another balance created by the U.S. Supreme Court provides school administration greater authority to censor school-sponsored e xpressive activities. As announced in Hazelwood, this added ability to censor speech absent a subs tantial disruption was provided because schoolsponsored expressive activitie s bear the imprimatur of the school and are part of the curriculum.874 The Supreme Court decided in favor of school officials by ruling that they may 873 Frederick 127 S. Ct. at 2628. 874 See Hazelwood 484 U.S. at 273. 133

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censor the style and content of school-sponsored e xpressive activities so long as the action bears a reasonable relationship to the educational mission. Frederick does not alter the standard of Hazelwood. The Frederick Court did not apply Hazelwood because it ruled the students banne r was not school-sponsored speech.875 The Court, however, again recognized that schools must have greater control over school-sponsored expressive activities. Thus, despite the change Frederick may have in store for the student speech trilogy, the Hazelwood standard allowing administrators to censor school-sponsored expressive activities remains. Online social networks are not school-sponsored activity. As such, c ourts are likely to employ a different test than the one promulgated in Hazelwood.876 None of the cases dealing with student speech online declared the student Web sites or online social network profiles as school-sponsored speech. Thus, Hazelwoods reasonableness standard did not apply. Rather, the courts in those cases employed a higher standa rd: material and substa ntial disturbance. Frederick, however, may open the door for a less stringent standard because the Court allowed school officials to censor speech wit hout a showing of material or substantial disturbance. If school officials view a students speech on online social networks as promoting illegal drug use, or some other message against the educational mission, th en perhaps they need only meet a standard of reasonableness. Most of the available cases dealin g with student speech on the Internet and online social ne tworks were decided prior to the Frederick decision. Therefore, it remains unclear whether Frederick would be applied in these situations. 875 Frederick 127 S. Ct. at 2629. 876 See Hazelwood 484 U.S. at 272-73. 134

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Courts have generally struck a balance between a students interest in free speech and a schools authority to carry out an educational mission by following a substantial disruption test. This standard creates a high threshold for school administrators to overcome before punishing student speech. Furthermore, cour ts do not protect students from engaging in obscene, lewd, or sexually explicit speech on school grounds. Allowing such woul d go against a public schools educational mission. In 2007, the Supreme Court may ha ve created a standard that tends to favor school officials authority, but the broader implications of Frederick remain unknown. The courts have resorted to a balanc ing test to determine which of two competing interests student speech and school authority should prevail. That test has created a high threshold for schools to overcome and placed some responsibility on the st udent in selecting their speechs content. Research Question 3 Research Question 3 looked at whether the cour ts analyses in online social network cases have advanced or hindered theories of the Firs t Amendment. Surprisingly, none of the available cases dealing with student speech on online social networks referenced any theories of the First Amendment. In fact, First Amendment theory appear s to be absent in much of the court opinions analyzed in this thesis. Perhaps the absence of First Amendment theory is in part due to the fa ct that the courts do not tend to draw out their discus sions of the First Amendment. The First Amendment discussions in the cases reviewed were much shorter in le ngth as compared to their discussions of other issues such as due process. The decisions ar e based more on theories of education and the mission of public school educat ion. Although there is an absen ce of First Amendment theory discussions, First Amendment theory nonethele ss provides arguments fo r and against student speech on online social networks. 135

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It seems that looking at the marketplace of id eas theory and the liberty model of First Amendment theory may provide justification for protecting student sp eech on online social networks. First, online social networks may be a prime teaching ground and example of a true marketplace of ideas. Students on these online soci al networks are exposed to various opinions and conflicting arguments. Thus, students must le arn to correctly perceive truth and reality.877 Through enough exposure, students may soon be able to distill the truth and reject the falsehoods of the marketplace of ideas. Granting school administration great authority to regulate student speech on online social networks may hinder the marketpla ce of ideas theory. A major premise of the theory is that the suppression of speech on the basis of irrational fears must be prevented.878 Thus, if the school administration is provided the opportunity to regula te student speech based on content, then these views, opinions, and ideas are effectively remove d from the marketplace of ideas. On the other hand, allowing these views, opinions, and ideas to exist in the marketpla ce of ideas allows the truth to prevail.879 Furthermore, under the liberty model, student s achieve a self-fulfilli ng purpose in their speech on online social networks. By expressing themselves on the online social networks, students fulfill their role in a democratic society.880 Rather than completely censoring students, school administrators may assist students in exercising the self-fulf illing purpose of speech. To 877 See C. Edwin Baker, Freedom of Speech 25 UCLA L. REV. 964, 967 (1978). 878 See id at 968. 879 See id 880 See id at 992. See also T. EMERSON, THE SYSTEM OF FREE EXPRESSION 6-7 (1971). 136

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do so, schools may use the online social networks as a teaching tool in lessons of civility and responsibility.881 Additionally, allowing th is self-fulfillment through online so cial networks may provide the safety valve function that at least one scholar has urged for in orde r to decrease school violence.882 The poems, artistic expressions, video cr eations, quotes, and other postings on online social networks provide st udents an opportunity to vent. Th is process of venting may i turn avoid violent school occurrences that are often cited as a main reason in censoring stud speech. n ent The courts have not addressed First Amendment theories in their anal yses of student speech on online social networks. Several theories pr ovide a strong rationale for protecting student speech on these online social networks. If courts were to consider the marketplace of ideas theory and the liberty model, then they may be persuaded to protect stud ent speech. Furthermore, the theories do not void the role of school admi nistrators but rather place them in a teaching capacity rather than a monitoring system. Thus, if applied, theories of the First Amendment may assist in finding a balance between stude nts speech rights and school authority. Recommendations If courts are to advance prin ciples of First Amendment theory, then they must move toward protecting student speech on online social networks. Such protections need not come at the complete expense of school au thority, but rather ach ieve a balance with it. The substantial disruption test implemented by th e courts to date provides a good starting point for the analysis 881 Cf. Bethel Sch. Dist. No. 403 v. Fraser 478 U.S. 675, 681 (1986). 882 See Clay Calvert, Off-Campus Speech, On-Campus Punishment: Censorship Of the Emerging Internet Underground 7 B.U.J. SCI. & TECH. L. 243, 281 (2001). 137

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of student speech on online social networks. It is only a starting point, however, there are several other factors may further assist the analysis. Ideally, courts would conclude that onlin e social networks are in no way a schoolsponsored activity. Making this declaration up front would avoid a slippery slope to the reasonableness standard of Hazelwood Courts should not view the participation of teachers and administrators on online social networks as tr ansforming online social networks to school sponsored activities. The popularity of online social networks also has brought about the creation of profile pages by teachers and administrators often times even making friend requests of students. Teachers and administra tors, however, do so independently and generally not at the command of the school district. Accordingly, it woul d be unfair to deem on line social networks a school activity simply because teachers and administrators maintain a presence on the online social network. Along these lines, concerns arise for teachers who may use online social networks as a part of class assignments, activities, and other lessons. Would the use of the online social network in a class activity make each students profile school-sponsored speech or make it a schoolsanctioned activity? The argument is possible. However, courts s hould protect student speech by not viewing online social networ ks as school sponsored or sch ool sanctioned. By treating the speech as non-school sponsored, school officials would be required to meet the higher standard of a material and substa ntial disruption, thus striking a balan ce between the competing interests. Courts also could recognize an online social network as an open public forum. The U.S. Supreme Court already has declared th at the Internet is an open forum,883 thus, this step is not a far stretch from the existing precedents. Technol ogy has moved the town square to a virtual 883 See Reno v. ACLU, 521 U.S. 844 (1997). 138

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location: the Internet. Online social networks provide a common meeting place for students to share ideas, update each other, sh are stories of current events, and much more. Just as these activities were once performed on school campuses, the cafeteria, and other common meeting locales, they are now being perf ormed on online social networks. Accordingly, the online social network should be protected as an open public forum just as these locations are protected for student social interaction. There is usually supervision of the traditional public forums, but such supervision has constitutional limitations. As suc h, the supervision of online social networks should have constitutional limits that will allow the student speech to prevail in the appropriate circumstances. Online social networks are replacing the journals, diaries, and letters that once existed among students. Now, rather than creating a D ear Diary entry, student s are posting to their online social network profiles. Similarly, students are sharing photos and artistic expressions such as graphic designs and othe r artwork on the online social netw orks. Thus, just as a student would have been protected in their private writings, so should they be protected in their writings on online social networks. The fact that the st udent is making their writings semi-public, may alter the discussion. The arguments may follow th at the student opened up the writings to criticism and placed them at the discretion of school administrato rs. This should only change the outcome, however, if the publication of the private diary would have changed the analysis in the cases of traditional forums. In the alternative of courts not declaring online social netw orks to be open forums, then schools must play a part in protecting students free speech rights on online social networks. Doing so may require schools to adopt certain polic ies and best practices regarding online social 139

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networks. At the high school level, such policie s may address student acc ess to the Web sites on campus and the creation of profiles by teachers and administrators. While students have a First Amendment right to free speech on the online social networks, such speech rights need not be exercised on scho ol grounds. To avoid a nexus between the online social network and a substantial disruption to th e educational process, schools should limit the access of online social networks on school groun ds. A complete ban to access is likely not necessary, but schools should determine during wh at times an online social network may be accessed. For instance, schools may limit access to online social networks to lunch breaks and after-school hours. Further, a school may decide to limit the number of computers with access to online social networks. Providing just a few comp uters in a central, m onitored location would allow school administration to keep an eye on student conduct and be able to prevent a disruption, substantial or otherwis e, to the school environment. Ideally, schools would implement a computer programming technique that would allow the viewing of online social networ ks, but prohibit the creation of profiles from school computers. This scheme would again protect students sp eech rights by limiting the possibility of online social networks being deemed school speech. If a student creates a profile using school resources, then the argument is easier in cour t that school administra tion is constitutionally allowed to punish or regulate that speech becau se it utilized school resources. However, if the students profile is created wholly off school grounds, then the school has a difficult burden in showing a nexus between the speech and campus activity. The mere act of allowing students to view online social networks would be sufficien t for some courts to find the speech was campus speech. But such court holdings are few, and ther e exists greater support that student resources must be used for the speech to constitute campus speech. 140

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Another issue schools should tack le in their online social network policies should be the creation of profiles by te achers and administrators. While a complete ban against the process may not be necessary, teachers and administrato rs should abide by certain best practices to ensure that their role as authority figures is not diminished and student speech rights can further be protected. One suggested best practice woul d be that teachers and administ rators not friend any of their students. This is a good practice for several reasons. First, teachers and administrators would better maintain thei r role of authority figures in the ey es of students. At the high school level, being called a friend may indicate a more relaxed relationship. This, in turn, may diminish a school officials ab ility to control students. Second, a schools guidance for best practices would call upon student s to determine an appropriate level of privacy settings for their online social network profiles. Using the privacy settings provided on the online social networks students could block th eir profiles from being viewed by non-friends. While this technique is not one-hundred percent cer tain, it nonetheless would demonstrate an intention th at students never intended for school teachers or administrators to view the profiles. This would aid the protect ion of student speech rights as it would make the profile page more closely anal ogous to a writing or diary ne ver intended to be published. Outside the realm of First Amendment prot ection for student speech on online social networks, best practices should of course address teacher and administrator conduct on these online social networks. Teachers and administrato rs are seen as role models for students. Accordingly, their conduct on online social netw orks should serve as models for students to follow. Teachers and administrators should re frain from posting discussions and photos of 141

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certain events involving alcohol consumption, dating lives, and other intimate details. This would assist in preventing student s from mimicking such behavior. In summary, to build upon the foundation provided by the available jurisprudence, courts and schools can adopt several standards and policie s to ensure students continue to enjoy free speech on online social networks. Courts should d eclare that online social networks are divorced from school-sponsored activities to ensure the substantial disrupti on threshold remains intact and that administrators have a higher threshold to reach before impeding the First Amendment rights of students. Further, schools mu st play a role and establish certain policies that would further support the notion that online social networks are not part of th e curriculum or school-sponsored activities. If these two entit ies were to implement these recommendations, a more solid foundation would be established for analyzing student speech on online social networks. Conclusion There is no one case from the U.S. Supreme Court directly on point when analyzing student speech on online social networks. Ra ther, U.S. Supreme Court precedents set a foundation upon which the analysis may begin. Lowe r courts looking at the issue have built upon this foundation and developed rules, but the ap plication of the rules have produced various results. The main issue in evaluating student speech is whether the speech created a substantial disruption to the educational process as to justify punishme nt or censorship from school administrators. Student speech on online social networks is constitutionally protected from school punishment absent a showing that the speech created a substantial disruption to the school. School administrators must show that so me change in the normal process of the school occurred or that some disorder occurred. Whether the 2007 decision of Frederick changes the test is yet to be seen. 142

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Nevertheless, students do not enjoy absolute First Amendment protection in their speech on online social networks. As in any other foru m, students are not protected for using obscene speech or communication involving threats. Thes e types of speech traditionally do not enjoy First Amendment protection, and they garner no special protection by being on online social networks. Students are afforded less protection th an adults in speech that promotes illegal drug use or that is potentially defamatory. Student speech on online social networks should be protected because the facility of online social networks may advance theories of th e First Amendment. Specifically, online social networks provide the ideal forum to advance th e marketplace of ideas theory. Furthermore, students have a chance for self-fulfillment by expressing themselves and developing their thoughts on online social networks. Courts and schools still have many improvements to make in order to guarantee the proper balance between student speech rights and school authority is reached. Making sure that online social networks are considered public forums is th e first step in ensuring such a balance. Further, schools must consider adopting policies and practi ces that carefully define the use of online social networks on school campuses. Among this lit any of possible change s, perhaps the most beneficial change would be education among the courts and schools as to what online social networks are and what issues arise as a result of their use. The technology of online social networks has grown at too rapid a pace for courts and schools to keep up. Thus, courts and schools are in need of assistance from researcher s and scholars. This thes is perhaps provides one step in this educational process. Need for Further Research Online social networks remain a new frontier for the courts to approach. With only four cases involving student speech on online social netw orks, it is difficult to assess what the rule is 143

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that courts will apply or how courts will analyze these student speech cases. However, basic principles of the First Amendment and Firs t Amendment jurisprudence provide good starting points in these cases. These starti ng points have traditionally bala nced a students right to free speech against the authority of school official s in maintaining order and carrying out the educational process.884 Thus, determining at what point school administrators may control students speech on online social networks becomes a great area of research. This thesis was approached using a legal re search methodology, and it looked at the issues involved from a legal standpoint. As such, the first area of resear ch that remains open is in the area of mass communication and First Amendment theories. Analyzing the problems of online social networks and student speech in the contex t of various theories may provide arguments for both protecting student speech on online social networks and granting school officials the authority to regulate such speech. Such research c ould approach the issues from a social science perspective, but will in essen ce provide a foundation for further legal arguments on either side. One area not explored by this research is possible implications of tort law. Perhaps it may be argued that if a students spe ech commits a tort, then perhaps school officials ha ve a stronger basis in regulating or punishing th e student speech. Online social networks are beginning to enter the ongoing discussions among scholars regarding the torts of defama tion and the privacy torts in Internet communication. Whether a students speech on online social networks commits a tort, may be a question an administrator may consid er in punishing or regulating the speech. With the issue of tort law, the question that al so arises is who may be held responsible for student speech on online social ne tworks? Could parents and guardians be liable for a tortious act committed by a minor? If school resources are used for the students speech on online social 884 See generally Tinker 144

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networks, could the school be he ld liable? Determining who may be held liable may play a role in analyzing student speech on online social networks. Perhaps the biggest issue that remains open for further research is how the analysis changes for students in higher education. Colle ge students constitute a large portion of the membership on online social networks, and the problems at the college level continue to grow. From schools punishing students for photos to derogatory statements about other students, higher education administrators are f acing the same difficulties presen t in the high school cases. Researching the standard applicable to college students and examining its appropriateness in the current higher education student culture would make a valuable contribution to the growing literature regarding rights a nd responsibilities of users on online social networks. 145

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LIST OF REFERENCES CASES A.B. v. Indiana, 2007 Ind. App. LEXIS 694 (Ct. App. Ind. 2007). Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). Beussink v. Woodland School District, 30 F. Supp. 2d 1175 (E.D. Mo. 1998). Emmett v. Kent School District No. 415, 92 F. Supp. 2d 1088, 1090 (W.D. Wash. 2000). Frederick v. Morse, 127 S. Ct. 2618 (2007). Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988). J. S. v. Blue Mountain Sch. Dist., 2007 U. S. Dist. LEXIS 23406 at *1 (M.D. Pa. 2007). J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002). Jane Doe v. MySpace, Inc., 474 F. Supp. 2d 843 (W.D. Tex. 2007). Killion v. Franklin Regional School Dist., 136 F. Supp. 2d 446, 455 (W.D. Pa. 2001). Layshock v. Hermitage School District, 496 F. Supp. 2d 587 (W.D. Pa. 2007). Mahaffey v. Aldrich, 236 F. Supp. 2d 779, 785 (E.D. Mich. 2002). MySpace, Inc. v. Wallace, 498 F. Supp. 2d 1293 (2007). People v. Fernino, 2008 N.Y. Misc. LEXIS 439 (N.Y. Crim. Ct. 2008). Reno v. ACLU, 521 U.S. 844 (1997). Requa v. Kent School Dist., 492 F. Supp. 2d 1272, 1283 (W.D. Wash. 2007). State v. Cecil, 655 S.E. 2d 517 (W. Va. 2007). Tinker v. Des Moines Independent Commun ity School District, 393 U.S. 503, 506 (1968). CONSTITUTIONS & STATUTES U.S. CONST. 4. U.S. CONST. amend. I. 146

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BOOKS FRED H. CATE, THE INTERNET AND THE FIRST AMENDMENT: SCHOOLS AND SEXUALLY EXPLICIT EXPRESSION 103 (1998). T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 6-7 (1971) PATRICIA H. HINCHEY, STUDENT RIGHTS: A REFERENCE HANDBOOK (ABC-CLIO 2001). J.S. MILL, ON LIBERTY (1956) JAMIN B. RASKIN, WE THE STUDENTS: SUPREME COURT CASES FOR AND ABOUT STUDENTS 22 (2d ed. 2003). LAW REVIEW ARTICLES C. Edwin Baker, Scope Of The First Amendment Freedom of Speech 25 UCLA L. REV. 964, 967 (1978). Clay Clavert, Off-Campus Speech, On-Campus Punishment: Censorship Of The Emerging Internet Underground 7 B.U.J. SCI. & TECH. L. 243, 256 (2001). Erwin Chemerinsky, Students Do Leave Their First Amendment Rights at the Schoolhouse Gates: Whats Left of Tinker? 48 DRAKE L. REV. 527 (2000). Lindsay M. Gehman, Deleting Online Predat ors Act: I Thought It Was My-Space How Proposed Federal Regulation of Commerci al Social Networking Sites Chills Constitutionally Protected Speech of Minors, 27 LOY. L.A. ENT. L. REV. 155 (2006). Brian Oten, Disorder in the Courts: Public Scho ol Student Expression on the Internet 2 First Amend. Rev. 403 (2004). Nadine Strossen, Students Rights And How They Are Wronged, 32 U. RICH. L. REV. 457, 458 (1998). Jennifer Kathleen Swartz, Beyond The Schoolhouse Gates: Do Students Shed Their Constitutional Rights When Communi cating To A Cyber-Audience? 48 DRAKE L. REV. 587 (2000). Clay Weisenberger, Constitution or Conformity; When the Shirt Hits the Fan in Public Schools 29 J.L. & EDUC. 51 (2000).

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NEWS ARTICLES John Letzing, Facebook CEO apologizes for handling of new ad system MARKETWATCH (Dec. 5, 2007). Brock Read, Hoping for a Bigger Offer, Faceboo k Founders Reject $750-Million Bid THE CHRONICLE OF HIGHER EDUCATION, 53:31 at 43 (April 7, 2007). Stephanie Francis Ward, MySpace Discovery, ABA JOURNAL (Vol. 93, Jan. 2007).

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BIOGRAPHICAL SKETCH Kimberly A. Lopez is a dual degree candidate of the Levin College of Law and the College of Journalism and Mass Communications. She entered the dual degree program in the fall of 2004. Kimberly will be graduating in May 2008 with her juris doctor and masters degree in mass communication, media law. She is an alumna of the College of Journalism and Communications having obt ained her bachelors degree in jo urnalism, and a minor in womens studies, in May 2004. Upon graduati on, Kimberly will be joining the law offices of Akerman Senterfit in Orlando, Fla., as an asso ciate in the litigation department.