MySpace & Facebook:
When Does Off-Campus Speech Warrant
On-Campus Penalties?
Erin Pfaff
Cyberspace Law Seminar
Prof. Nicholas Johnson
University of
Spring 2006
I.
Introduction
On February 7,
2006, 16-year-old Brian Lopez sat down at his home computer, logged into his
personal webpage at MySpace.com and proceeded to post “satirical commentary[1]”
about his
Three days
later, Lopez, a
At the same
time this was going on in
The features and nature of MySpace and Facebook will be addressed throughout this article. For now, it is sufficient to know that both refer to locations on the Internet to which “members” have access. They combine some of the qualities of personal Web pages, blogs, listservs, email and instant messaging, and group exchanges (such as “Yahoo! Groups”). They are referred to as “online social networks” because they are designed, promoted, and utilized as a way to keep in touch with friends and expand one’s social network.
The two MySpace
and Facebook incidents described above are hardly unique[13]. But they do serve to illustrate some issues
that are raising questions of constitutional and statutory law, academic
regulations, public policy concerns and common sense. The First Amendment[14]
only protects citizens against government encroachment on expression, which
includes public school districts and universities, but not—without more—private
educational institutions. There are many restrictions on, and consequences of,
speech that in the literal sense are “abridging the freedom of speech.”[15] Limitations on “fighting words,” “obscenity,”
“indecency” in broadcast speech, defamation, copyright and trademark
violations, false and misleading advertising, and disclosure of national
security secrets come immediately to mind.[16]
Assuming the aforementioned First Amendment limitations do not pertain to the context of student speech in online social networks, how should the balance be struck between permitting (or even encouraging) open student expression, and school administrators’ perceived responsibility to restrain (or punish) it in some way in order to serve some legitimate institutional goal or responsibility. Finally, given the ease of Internet access to online content stored on servers around the planet, how should that affect this balance with regard to “on-campus” and “off-campus” online communication?
Increasingly, both high schools and universities—public and private—are taking disciplinary action and in response to student comments posted in online social networks, such as MySpace.com and Facebook.com.[17] However, the contexts in which academic administrators perceive problems to arise, as well as the remedies chosen to address their concerns, widely vary.
The concerns, voiced by educators as warranting some form of action, include[18] the future ramifications of student postings;[19] the naiveté of students posting so much personal information as to compromise their safety;[20] student promotion of inappropriate, and sometimes illegal, behavior;[21] disparaging remarks that evoke student conflict, including on-campus violence;[22] and content deemed to be a violation of student codes of conduct.[23]
To mitigate the potential effects of these perceived problems—in addition to suspension or expulsion for controversial speech—some schools have urged law enforcement officials to pursue legal action;[24] exercised a form of prior restraint by prohibiting the use of school email addresses in online social networks (thereby precluding their use, as a school email address is required by Facebook to open an account);[25] employed filters to block MySpace and Facebook access to such websites on campus computers;[26] and offered programs to educate students in responsible use of such websites.[27]
Regardless of the provocations from students and response from administrators, the practical and legal implications for students are similar. At minimum, educators who are overly fearful and controlling are sending a message that is but a slight variant of the old adage, “children should be seen and not heard.” Such message is at odds with the needs of a national economy, as well as the focus of many teachers, to produce creative, independent thinkers.
More and more, however, school administrators are actually violating students’ constitutional free speech rights.
Aside from the gross disservice this will have on students, inhibiting their development into active, discerning and tolerant adults, such reaction is patently unjust—if not wholly unconstitutional—particularly when it relates to behavior occurring entirely outside of the academic sphere. Online social networks, particularly MySpace and Facebook, have quickly become the most common and effective mode of mass communication for students, who log into these sites daily for a variety of expressive and social purposes. Students’ First Amendment rights require that educational institutions limit their regulation of online social networks to rare and extreme cases involving either a real threat to the security of persons or property, or a substantial-and-material disruption of campus activities.
This article explores the complex relationship between students, educators, online social networks, and the First Amendment, so as to fully explicate the rights and responsibilities of each party in the context of off-campus, Internet speech. Part II briefly introduces to online social networks, specifically MySpace and Facebook, illuminating some of the excitement and anxiety that surrounds them. Part III delves into the foundation of First Amendment case law, in order to articulate the primary legal standards and tests under which student speech is protected, as well as limited. Part IV then applies these standards to the context of student speech in online social networks, considering the various caveats that make this issue both interesting and significant. How significant is the on-campus, off-campus distinction in regard to OSNs and does the ubiquitous quality of cyberspace affect this categorization? Are OSNs so different from other communications media that they warrant distinct First Amendment standards? What can school administrators legally do to address their concerns? Finally, Part V concludes that, generally speaking, constitutionally-protected student speech occurring in MySpace and Facebook, so long as it is created off-campus and it remains there, can neither be regulated, nor sanctioned, by public school administrators absent a dire need for intervention.
II.
My-What?
Face-Who? Understanding the Value of Online Social Networks (OSNs)
There is a sense of déjà vu surrounding the controversial hype of MySpace and Facebook. As with the advent of most technology and introduction of provocative creative endeavors that stimulate new ways of thinking and interacting, there is inevitably widespread societal discomfort and uncertainty as to how such innovations will shift the status quo. Discomfort and uncertainty, however, have never alone sufficed as a legally justifiable reason to curtail constitutional rights. Such shifts are especially pronounced amongst Generation Y,[28] as this demographic has been predominantly socialized during—or in the aftermath of—the Digital Revolution, virtually wired in all aspects of their everyday lives. Long gone are the days of getting sent to the principal’s office for passing a profane note in class; cell phone text messages provide for a much more discreet alternative. Similarly, it appears that the need for underground newspapers has been superseded by the efficiency and extensive reach of OSNs.
Students[29] around the country[30] are flocking to MySpace and Facebook, often logging numerous hours—daily—on these sites, ‘talking’ to friends everywhere, while simultaneously updating their already exhaustive personal profiles and exponentially increasing their social network. In addition to these plainly social uses of OSNs, many students utilize them for more inherently communicative and/or cathartic purposes. Some students, who tend to be shy and feel ostracized in an academic setting, can draw the attention of peers by writing a profile that showcases their talents and interests.[31] Others experiment with creating fictitious identities or relating with different personalities, which can be an important mode of expression, as well as socialization tool, for many adolescents who struggle with self-esteem. And, many more merely use OSNs to vent about their lives and express associated emotions to others who may be able to relate.
While MySpace and Facebook essentially serve the same purposes and provide free access, they each have distinguishing characteristics. Just about anyone can join MySpace[32], which explains its status as the most popular social networking service on the Web, whereas Facebook is more discriminating in its user accessibility. Registration on Facebook[33] requires that an individual submit an active university (.edu) email address, which effectively limits use of the site to university students, staff and faculty. Facebook recently made itself available to high school students, but limits their use; every high school user must be specifically invited to join Facebook by someone who already has an active account. In the same vein, while Facebook requires a user to obtain permission before viewing the profile of a student who attends another school,[34] MySpace profiles are generally accessible by anyone.[35] Common features of user profiles typically include basic personal data and contact information, uploaded photos, interests, group affiliations,[36] hyperlinks to the users “friends,” and a “wall” where others can post comments. MySpace also includes some unique capabilities, such as music streaming and personal blogs. Ultimately, these OSNs—although not without their pitfalls—provide a powerful and essential means of personal, political, critical and artistic expression for students struggling to find their voice. They warrant the same First Amendment protections afforded to other valued modes of speech.
III.
The First
Amendment and Student Expression
For nearly a century, the U.S. Supreme Court has sought to interpret and define the limitations of the First Amendment, taking into consideration the innumerable contexts in which difficult disputes arise, as well as the fluidity of societal standards and constant technological advancements. As with the emergence of every mass medium, the Internet has presented the Court with novel questions. Specifically, the court needs to determine the appropriate scope of First Amendment protections in the context of online speech, and reinterpret established case law to accommodate this new form of communication. Although there are inevitably caveats to any general rule, the Court took a stand 1997, holding that communication via the Internet deserves the highest level of First Amendment protection.[37] Thus, the various standards effectuated for pure speech and print media—in contrast to broadcast mediums, such as radio and television—apply equally to Internet speech, as do the modifications of such standards for students. The section below explains these First Amendment protections and limitations, as well as the relevant caveats to the general rule.
A.
Categories
of Generally Unprotected Speech
The U.S. Supreme Court has determined that the following categories of speech do not fall within the ambit of First Amendment protection, regardless of the context in which they occur. Thus, for the purposes of this article, the discussion of these First Amendment exceptions will merely articulate the general rules and briefly explore their application in schools. In essence, if the speech constitutes incitement to violence, a true threat or an obscenity, it will not be protected regardless of the location or medium in which it took place.
1.
Incitement to Violence
Advocacy and incitement are two sides of the same coin in the palm of the activist. The U.S. Supreme Court, however, emphatically distinguishes between the two. Culminating a long series of sedition trials, in Brandenburg v. Ohio, the court held that advocacy of unlawful conduct or violence is protected, except where it is “directed toward inciting or producing imminent lawless action and is likely to produce such action.”[38] This test, which continues to be the rule today and provides virtually absolute protection for advocacy of ideas, embodies Justice Brandeis’s powerful concurrence in Whitney v. California: “Fear of serious injury alone cannot justify suppression of free speech and assembly…It is the function of speech to free men from the bondage of irrational fears.”[39]
In
other words, academic institutions are not justified in penalizing students for
certain off-campus OSN commentary that cannot be construed as incitement. Their
suppression is based on the “irrational fear” of which Justice Brandeis
spoke. While Brandeis’s message offers
us a guide, however, the U.S. Supreme Court has not yet directly addressed the
question of whether school officials can punish students for advocating
violence or otherwise unlawful conduct.
At the district court level, in
2.
True Threats
Another realm of speech to which the U.S. Supreme Court has refused to extend First Amendment protection, is that which constitutes a true threat of violence.[41] The Court, however, has yet to establish a clear test to distinguishing a true threat from protected speech. As a result, courts at the federal appellate level have retained the latitude to define the parameters of the true threat doctrine as they deem appropriate. Predominantly, they have responded with some form of objective test, typically measuring the perpetrator’s intent, his ability to effectuate the threat and the imminence of the threat.[42]
For instance, in 1999, the Second Circuit Court of Appeals defined “true threats” as speech that is “so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.”[43] The Tenth Circuit Court of Appeals stressed that “true threats must be distinguished from mere political argument, idle talk or jest.”[44] Moreover, in an earlier case, the Ninth Circuit Court of Appeals relied on a true threat test requiring that a “reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault.”[45] In applying this intent test to Lovell, the Ninth Circuit affirmed the suspension of a student who allegedly threatened to shoot his guidance counsel if she did not change his schedule.[46]
Despite the fact that this lawsuit originated in an academic setting, the court provided no indication that its ruling would be limited to students; on the contrary, the courts have not carved out any distinction between the constitutional limitations for true threats, generally versus in schools. To reiterate this point, one scholar argues that in an educational setting, a student’s potentially threatening expression must be analyzed in terms of both the presence of intent and the actual ability to carry out the threat—as required by Chapter 275 of the Massachusetts General Laws—before disciplinary action can be imposed.[47] To deem spiteful speech an unprotected true threat when the speaker clearly lacks the present intent or ability to cause actual harm, is unreasonable and unnecessarily blurs the bright line between advocacy and incitement.
3.
Obscenity
Although the legal distinction between pornography and obscenity is not a significant issue in the context of schools and OSNs,[48] the topic merits exploration. While academic institutions are generally granted fairly broad discretion in this area of speech,[49] the well established rule is that material is considered obscene—and therefore unprotected—only if the following standards are met: (1) An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest; (2) The work depicts in a patently offensive way, sexual conduct specifically defined by applicable state law; and (3) The work in question lacks serious literary, artistic, political or scientific value.[50] Thus, individuals who choose to post obscene content on MySpace or Facebook, regardless of their status as students, can be rightfully penalized under this federal obscenity law.
B.
Quasi-Protected
but Controversial Speech
The following categories of speech are termed “quasi-protected” because, although such content will be constitutionally protected in certain contexts, it can provide a basis for civil action or criminal sanctions, if it meets certain requirements. This section will briefly explore these legal caveats of defamatory and hate speech.
1.
Defamation[51]
When students post defamatory[52] comments about others on their OSN profiles, they expose themselves to the possibility of a libel lawsuit, if it can be demonstrated—with proof of actual harm—that the communication truly damaged the person’s reputation.[53] Generally speaking, to prevail in a libel suit a plaintiff must prove that: (1) the libel was published; (2) the words were of and concerning the plaintiff; (3) the material is defamatory; (4) the material is false[54]; and (5) the defendant was at fault.[55] There are caveats to this test, depending on whether the plaintiff is considered a public or private figure[56], as well as exceptions that the court has carved out to protect certain forms of creative expression, such as parody.[57] Since the law recognizes a disparity between speech which merely mocks or criticizes, and that which is inherently defamatory, it is essential that academic institutions respect such a distinction as well. Thus, while a student’s clearly defamatory comments, such as assertions that another member of the academic community has an infectious disease, would warrant administrative intervention; those comments which are merely unfavorable and opinionated should remain outside the scope of on-campus regulation.
2.
Hate Speech and Fighting Words
Perhaps surprisingly, the U.S. Supreme Court has ruled that hate speech[58] constitutes political speech protected by the First Amendment, so long as it does not fall into the subcategory of fighting words.[59] Fighting words are defined as those which “by their very utterance inflict injury or tend to incite an immediate breach of peace.”[60] This doctrine resonates with the Court’s refusal to protect speech that incites violence, and essentially means that hateful commentary will be constitutionally protected unless it is expressed in a face-to-face confrontation. By virtue of its online nature, posting hateful commentary on MySpace and Facebook cannot be construed as fighting words claim, and thus (absent a defamation claim) merits First Amendment protection.
C.
Supreme
Court Standards for Regulating Speech In Public Schools
Despite the comprehensiveness of general protections and limitations of the First Amendment have been addressed, it is important to understand that these guarantees have never been fully extended to students. Just as parents are given fairly broad discretion in controlling the actions and behavior of their children, when in school, educators—in loco parentis[61]— have long had the right to penalize students for, what they deem to be, inappropriate conduct. Since the monumental 1969 First Amendment case, in which the U.S. Supreme Court stated that students do “not shed their constitutional rights to freedom of speech and expression at the schoolhouse gate,”[62] the Court has continued to refine the boundaries of such control. Certainly, the State and school administrators may establish and enforce rules of permissible conduct within an academic setting, however, such rules must be consistent with constitutional principles.[63] Thus, over the years the Court developed three categorical circumstances in which a student’s First Amendment rights could be permissibly, and justifiably, restricted: (1) when the speech poses a substantial-and-material disruption to the educational environment or interference with the rights of others;[64] (2) when the speech is lewd, offensive, or vulgar and occurs in conjunction with a school-sponsored activity;[65] (3) when censorship is reasonably related to serving legitimate pedagogical concerns.[66] The inception, as well as the current significance, of these exemptions from First Amendment speech is discussed below, insofar as they apply to middle school and high school students.
1.
Substantial-and-Material Disruption
As was previously mentioned, the Court in Tinker revolutionized the legal landscape for students in the context of recognizing of their constitutional rights in school. Tinker marked the first time that the Court declared a state action unconstitutional in favor of protecting students’ First Amendment rights. Specifically, the Court observed that a prohibition of a particular speech or expression could not be justified by the “mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”[67] Holding that there was no showing that the students’ prohibited expression materially and substantially interfered with the operation of the school or the rights of others, the Court refused to sustain the suspension of students for wearing black armbands at school to demonstrate their opposition to the war in Vietnam.[68]
In the years since
Tinker, the substantial-and-material
disruption exception has continued to occupy a central role in educators’
justifications for stifling student speech and the courts have constantly been
required to apply and evaluate the standard in various incidents. For example,
a federal district court in
2.
Lewd, Offensive or Vulgar Speech
If the Tinker standard—being most favorable to
free speech guarantees—remained the sole litmus test for permitting
restrictions on student speech in schools, it is apparent that censorship would
not be so rampant today. In 1986,
however, the Court essentially deferred to academic institutions when it carved
out a new exception to students’ speech rights, authorizing the restriction of
lewd, offensive and vulgar speech occurring in classrooms, assemblies, or other
school-sponsored activities.[71]
The
The limits of the Court’s Fraser rationale were tested in 1992, when a federal district court in Virginia sustained the suspension of a middle school student for wearing (and refusing to change) a shirt that said, “Drugs Suck.”[74] The court found that the use of the word “suck,” and its “likely derivation from sexual meaning” was “objectionable” since, “regardless of whether the word connotes a sexual meaning, its use is offensive and vulgar to many people.”[75] While it is arguable whether the Court intended for the Fraser standard to be interpreted so as to provide school administrators with such indiscriminate regulatory authority, Broussard appears to be an exception to the norm. On no occasion has the U.S. Supreme Court even implied that liability could attach to certain speech merely because a third party interprets it to be offensive. Such logic forecloses First Amendment protections in situations in which it should be—and historically has been—afforded.
3.
Legitimate Pedagogical Concerns
In 1998, the Court lowered the bar again with respect to what it would accept as a permissible justification for censorship, when it adopted the “reasonably related to legitimate pedagogical concerns” limitation on student speech and expression.[76] Although Hazelwood dealt specifically with censorship of content[77] to be published in a school-sponsored newspaper,[78] the scope of the Court’s decision extends to grant high school educators’ authority over any school-sponsored publication or theatrical production, as well as other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.[79]
The Hazelwood decision left many unanswered questions for the lower courts to grapple with in subsequent cases. In particular, the U.S. Supreme has yet to address how the “legitimate pedagogical concerns” standard should apply in university settings and other inherently academic pursuits. However, because Tinker, Fraser and Hazelwood all remain good law, they can be reconciled to mean that public school administrators (at the pre-collegiate level) can restrict, otherwise constitutionally protected student speech and expression only if it is substantially-and-materially disruptive to the educational process, offensively indecent for an academic environment, or directly associated with the school curriculum, in which case educators are directly involved in the promotion, advocacy or sponsorship of it; otherwise, student speech and expression must be tolerated.
D.
Understanding
the First Amendment Rights of College Students
In one of the few U.S. Supreme Court cases dealing with the scope of free speech and expression rights afforded to students attending public universities, the Court noted that “colleges and universities are not enclaves immune from the sweep of the First Amendment.”[80] The Court in Healy found that it was unconstitutional to deny a student group’s application for recognition as a campus organization merely because the college president believed that the national chapter (to which the local group was affiliated) had a philosophy of disruption and violence, in conflict with the school’s declaration of student rights.[81] The Court further emphasized that state colleges could not restrict speech or association rights simply because they “found the views expressed by the group to be abhorrent.”[82]
This principle was stressed again, a year later, when the Court in Papish v. Board of Curators of the University of Missouri declared that the “mere dissemination of ideas, no matter how offensive to good taste, on a state university campus may not be shut off in the name alone of ‘conventions of decency.’”[83] In contrast to Healy, this case stemmed from the expulsion of a graduate student for publishing an explicit political cartoon and news story in the student newspaper.[84] The Court, in holding that such content—although contained in the school-sponsored newspaper—was not “constitutionally obscene or otherwise unprotected,”[85] seems to unequivocally to be indicating that the more restrictive standard of Fraser applies only to cases involving high school students, not university students.
Furthermore, although
the Hazelwood Court never clearly
addressed the difference in First Amendment rights between high school and
college students, with respect to school-sponsored publications, it seemed to
suggest that collegiate administrators have less power than do high school administrators
because of the “older age of college newspaper reporters, the concomitantly
higher age of these newspapers’ readers, the increased dependence generally
granted to students in higher education, and the acknowledgement that such
students are young adults with full legal rights in our system.”[86] The
Court further highlighted the distinction between the First Amendment rights
afforded to high school student publications and college student publications by
determining that university yearbooks are limited public forums,[87]
whereas high school newspapers were considered a non-public forum.[88] A
consideration of the disparate outcomes of the public forum analysis[89]
applied in both these cases, seems to suggest that the Hazelwood standard would only (if ever) justify restrictions of
students’ speech occurring in the actual content of their coursework. It is even plausible that, if and when this
issue of administrative restrictions on student speech in public universities
must actually be resolved, the Court will return to the
material-and-substantial disruption standard of Tinker as the only permissible justification for restrictions.
IV.
Reconciling
Regulation of OSNs With Student Speech Standards
A.
The
Off-Campus, Online Speech Conundrum
Although the U.S. Supreme Court has not expressly addressed whether it is appropriate for public school administrators to regulate off-campus student speech, Tinker clearly limits the scope of a school’s authority to on-campus expression. Only if the speech qualifies as a substantial-and-material disruption, and occurs in the classroom, in the cafeteria, on the playground or elsewhere on-campus, is it fair game for prohibition; otherwise, it is beyond the scope of the school’s jurisdiction.[90] Furthermore, the concurring opinion in Fraser argues that had the same speech been given “outside the school environment” the student “could not have been penalized simply because governmental officials considered his language to be inappropriate.”[91]
It is true that school administrators can exert some regulatory authority over a student’s off-campus behavior, but such situations are generally limited to participation in illegal activities. For example, many high schools and universities enforce strict underage drinking policies that impose penalties upon minor students caught with alcohol. This is particularly common for student athletes who are required to adhere to more stringent codes of conduct and to acknowledge that a violation of such could result in a loss of their athletic eligibility. Such regulation is intrinsically distinguishable from administrative regulation of off-campus, online speech that is constitutionally protected. When students sign a code of conduct promising not to engage in illegal activities, they are not relinquishing any fundamental rights.
Despite these implications, school administrators are now, more than ever, attempting to exercise regulatory control over off-campus student speech and expression—particularly in the realm of the Internet—through expulsions, suspensions, and other disciplinary actions.[92] In response, it appears that the lower courts, with a few notable exceptions[93], are coming out in favor of the students, refusing to uphold the schools’ regulation and reprimands. The courts continue to emphasize that sufficient opportunity for redress exists outside the academic setting for speech that falls beyond the scope of First Amendment protection.[94]
For instance, a federal district court in Washington granted a student’s motion for a temporary restraining order prohibiting his school from suspending him for creating—entirely outside of school time and without school resources—a web page consisting of mock obituaries of his friends.[95] To justify its grant of preliminary relief, the court explained that because Emmett’s speech was entirely outside of the school’s supervision and control since it did not occur at a school assembly, in a school-sponsored activity, or in connection with any class or school project, it was entirely outside of the school’s supervision and control.[96]
A Missouri district court came to a similar decision two years earlier when it found that a student was acting within the realm of his free speech rights when he created—at home on his personal computer—a web page, with vulgar language that was highly critical of his school and its administration.[97] There are a plethora of cases, across the country, that are worthy of mention,[98] but, in consideration of time and space, it is more important to emphasize that they virtually all lead to the same conclusion: only in the most rare circumstances will a court permit a school to impose academic sanctions on students for off-campus, online speech. There is no reason why student postings on MySpace and Facebook would not evoke the same response from the courts, since OSNs, for all practical purposes, are no different than a general website.
OSNs: A Push or Pull Phenomenon?
Classifying a
communications medium as a push or pull phenomenon refers to the way in which a
message is transmitted to a recipient. Generally,
any speech that is thrust upon someone absent any active personal choice to
receive it can be considered a push phenomenon. Some common push communications include: junk
mail, telemarketers, billboards, spam, pop-ups and graffiti. Encountering messages from such sources is
based on circumstance rather autonomous choice.
Because of the indiscriminate nature of transmission, regulation of push
phenomena should not be subject to the highest standard of First Amendment
protection. On the other hand, since
pull communications typically require affirmative solicitation (subscription,
registration, etc.) to receive them, content regulations should be limited only
to those that are narrowly tailored and serve a compelling state interest[99]
While it is debatable whether Internet material geographically exists on the computer to which it was originally uploaded, or whether, upon posting, it transcends traditional boundaries to sustain omnipresence in cyberspace; the distinction is essentially irrelevant when conceptualizing OSNs as inherently pull phenomena. To access and view the content students post on MySpace and Facebook, one must actively register for an account and solicit the profiles of others. One will never inadvertently be directed to such pages through a random Internet search and, oftentimes, one must obtain the permission from other users before being granted access to their profiles. This aspect of OSNs convincingly renders them among the most pull-oriented sites publicly available in cyberspace, and thus worthy of more protection than generally accessible websites.
Despite the fact that OSNs constitute a pull phenomenon, they should not necessarily be immune from the regulation of school administrators in all situations. The place of origin of the speech becomes an important inquiry in this regard because when content is posted to the Internet on-campus, using school computers then “the school should be able to exercise greater control and authority over the speech [as] it controls the property that is used by the student.”[100] On the other hand, online speech created and posted to OSNs from an off-campus location should be beyond the jurisdictional reach of public school administrators. The exception to this rule occurs if the creator of the posting brings it into the academic institution by downloading it onto a school computer.[101] To prevent this scenario, schools could simply block access to OSNs from campus computers. The ease of this technological solution, coupled with the importance of preserving the vitality of First Amendment rights, means that academic institutions should have neither regulatory nor penal authority with respect to controversial speech that is both initiated and remains off-campus.[102]
B.
OSNs,
Exceptionalists, and Orders of Magnitude
Academic institutions are likely to reject the suggestion that their ability to regulate and penalize students’ speech should be circumscribed. A common argument is that traditional First Amendment analysis should not be applied to MySpace and Facebook because commentary posted on OSNs is incomparable to most other forms of communication. Specifically, OSNs have the ability to simultaneously connect with at least ten times more people than traditional mass media. This increase in impact, in terms of the exact order of magnitude[103], obviously depends on the prevalence of the comparative subject as well as the accessibility limitations of particular OSNs and user profiles. While OSNs definitely have unique characteristics, they ultimately are like any other venue of speech in that they enable self-expression. Adolescent students have always—and will always—criticize their teachers, poke fun at their peers, and make tasteless and immature comments about just about anything. The only thing that has changed is the means in which such gossip is disseminated. MySpace and Facebook may be present a difference in degree, but this does not necessarily translate to a difference in kind.
While it is fairly easy to just mourn the ‘good old days’—when students simply passed notes in class, logged their personal thoughts in a locked diary, and etched anonymous commentary onto walls, mirrors, and toilet stalls—when one thoughtfully considers the positive aspects of OSNs, it becomes increasingly difficult to definitively say which mode of student expression is preferable. Although OSNs almost guarantee that a student will reach a larger audience, the permanence of the content is rather fluid. What is posted one day on MySpace or Facebook, can just as easily be taken down or altered the next. The transient nature of OSN expression and communication stands in stark contrast to an incriminating statement written in a note, for example. Such a note can, unknowingly, become lost in the hallway. Or a diary, divulging a student’s deepest thoughts and desires, can be inadvertently left behind in the library beneath a stack of books, to be read by whoever happens to find it. Given their permanent (or at least non-fleeting) nature, are these forms of expression really any less problematic than OSNs? And is it really a negative thing that students are using OSNs as a mode of civil discourse. Students’ critical—and even disparaging—thoughts will not wane by suppressing their speech. Is it not better for students to be encouraged to express their adverse opinions rather than advised to harbor them? Conventional wisdom seems to indicate that the student who feels ostracized and ignored, and who lacks an expressive outlet, would be more of a “security threat” to a school than the student who posts a tirade, about how much he hates his teacher, to his OSN profile.
Now, coming full-circle, this discussion returns to the distinction between on-campus and off-campus speech, and its interplay with OSNs. Exceptionalists[104] would assert that student use of OSNs does not constitute wholly on-campus or off-campus speech and, because it reflects elements of both, such speech should be reclassified as something else. Indeed, there is a ubiquitous quality about OSNs that other venues of speech lack; they exist both everywhere and nowhere given the boundless nature of cyberspace. It is also true the OSNs, especially Facebook, have inherent links to the academic environment since the student commentary often relates to school, teachers and classmates. However, even if these characteristics of OSNs are enough to effectively blur the line between on-campus and off-campus speech, such classification is trivial when (as is often the case) school administrators overstep what regulatory authority the law has granted them.
C.
What Schools
Can Do To Reasonably Address Their Concerns?
The objective of this paper has never been to undermine the authority of school administrators or to downplay the significance of their concerns regarding unbridled student use of OSNs. On the contrary, they raise some very legitimate points regarding issues of privacy, online predators, self-profiling, illegal behavior, threats, harassment, defamation, and the present as well as future implications stemming from posting such material. Resorting to censorship of student speech in MySpace and Facebook, however, does not actually get to the heart of the concerns to provide any permanent redress. If anything, censorship tends to have the exact opposite effect in that it forces controversial speech underground where it is not as likely to get fleshed out, it inherently teaches students to be intolerant of different perspectives and it often causes a backlash by those who refuse to be stifled. So, what is the solution?
The best way for schools to address their concerns is proactive education. Notions of such education, however, should not be limited to on-campus academic programs, which would essentially place the entire burden on the schools. Certainly, lesson plans and general programs teaching students how to be responsible and savvy Internet users need to part of the educational effort; but, a student’s education in this realm also needs to come from parental guidance, peer discussion and widespread societal awareness.
There are, of course, additional measures that school administrators could justifiably take to mitigate their fears regarding the effect some content could have in the academic environment. It is unquestionably within the school’s authority to block access to all OSNs from school computers. Similarly, schools can impose somewhat of a time, place and manner restriction effectively banning students from accessing such sites, even if using their own electronic device, while on-campus.[105] On the other hand, it is less clear whether administrators can permissibly prohibit the use of school email addresses for use in OSNs unless such prohibition extends to all personal or non-academic purposes.[106]
Finally, while the default rule indicates that public school officials can neither regulate nor sanction student speech occurring in MySpace and Facebook, so long as it is created and it remains off campus, there are some circumstances that warrant school intervention. Where a student poses a real and imminent threat to someone or something in an OSN then school administrator’s, in the interest of security, are absolutely justified in taking action; such speech is not protected in any context, let alone a school environment. Moreover, if a student’s harassment or profane criticism of another student (or teacher) escalates to a level where it is actually impeding the educational process, then it falls under the substantial-and-material disruption exception, warranting school regulation.
V.
Conclusion
Ultimately, it is important to bear in mind that OSNs, such as MySpace and Facebook, play an integral role in students’ lives and are powerful communicative tools. Rather than penalize students for exercising their First Amendment rights, educators should view certain lapses in student judgment as a learning experience and recognize the potential in those lapses as significant teaching tools. Regulating and reprimanding off-campus, online student speech has the effect of either enticing students to rebel or teaching them to be silent citizens, neither of which serves anyone’s best interests. Instead, students need to be educated regarding the appropriate and responsible use of MySpace and Facebook, so that the content they post on OSNs does not come back to haunt them or harm others. In any discussion of the issue, it is essential to remember that when students are outside of the school gates, they retain the full constitutional rights of every citizen. It is beyond the jurisdictional authority of school administrators to regulate what students do at home, outside of the school environment when students have the constitutional right to engage in such behavior. Unprotected speech is unprotected regardless of where it is expressed; however, school exceptions to protected speech are confined to the real boundaries of the campus. Unless the content posted on MySpace or Facebook actually enters the academic domain or poses a serious threat or material disruption to the educational process, the First Amendment shall prevail.
[1] The actual language Lopez used in his MySpace posting has not been made publicly available. It seems that many school administrators who have punished students for MySpace and Facebook speech have (successfully) endeavored to keep the specifics of such incidents confidential.
[2] Karen Abbott, Suspension Called Off: Littleton Student Back in Class After ACLU Steps In, Rocky Mountain News, Feb. 22, 2006, http://www.rockymountainnews.com/drmn/local/article/0,1299,DRMN_15_4486162,00.html.
[3] The
Associated Press,
[4] Abbott, supra note 2.
[5] Obscenity, incitement to violence, and true threats are examples of constitutionally unprotected speech (and will be discussed at length in this article) that would arguably give public schools more leeway in its regulation regardless of where the speech originates.
[6] See Abbott, supra note 2.
[7]
[8] American
Civil Liberties
[9] Abbott, supra note 2.
[10] Rob Capriccioso, Facebook Face Off, Inside Higher Ed, Feb. 14, 2006, http://insidehighered.com/news/2006/02/14/facebook; Julianne Pepitone, Kicked in the Face: Freshmen Claim Judicial Affairs Threatened Expulsion for Creation of Facebook Group Critical of TA, The Daily Orange, Feb. 8, 2006, http://www.dailyorange.com/media/paper522/news/2006/02/08/News/Kicked.In.The.Face.Freshmen.Claim.Judicial.Affairs.Threatened.Expulsion.For.Crea-1603618.shtml?norewrite.
[11] The “officer names” were as follows: (1) “I’d rather watch my brother masturbate to midget porn with my mom than go to your class, Rachel;” (2) “I’d rather be eaten out by a monkey than go to your class, Rachel;” (3) “I’d rather eat all the hair stuck in the drain of the showers than go to your class, Rachel;” (4) “I’d rather scrape the discharge off your vagina from your yeast infection than go to your class, Rachel.” See Cappriccioso supra note 10 (providing link to a photo of the Facebook group profile).
[12] See Pepitone supra note 10.
[13] Student-body
president expelled from Fisher College for his Facebook critique of a campus
police officer, which conspired to and damaged his reputation, and urged
students to sign a petition or “try and set him up” to do something wrong. Such
comments allegedly violated
[14] Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of
grievances.
[15]
[16] These limitations will be unpacked in Part III of this article.
[17] Internet blogs and other online social networking services, including Friendster.com, Xanga.com, LiveJournal.com, also serve as sites of controversy in this realm; however, the scope of this article is limited to specific discussion of MySpace.com and Facebook.com, as they are unparalleled in popularity among students.
[18] This is not an exhaustive list of the concerns raised by educators, not to mention parents, regarding student postings on online social networks. This sampling seeks to provide a solid indication of the problems high school and university administrators believe run rampant with MySpace.com and Facebook.com.
[19] There is a widespread concern that students fail to recognize how what they are posting on MySpace and Facebook could affect college admissions and job applications. Many employers readily admit to scouring online social networks for the profiles of employment candidates, and there have already been some notable incidents of students losing out on job opportunities because of the content on MySpace and Facebook. See Diane Lewis, Job Applicant’s Online Musings Get Hard Look, The Boston Globe, Mar. 30, 2006, http://www.boston.com/business/globe/articles/2006/03/30/job_applicants_online_musings_get_hard_look/?page=2. See also Janet Kornblum & Mary Beth Marklein, What You Say Online Could Haunt You, USA Today, Mar. 8, 2006, http://www.usatoday.com/tech/news/internetprivacy/2006-03-08-facebook-myspace_x.htm.
[20] There
is also a real fear that students are eviscerating their own privacy and, thus,
making themselves exceedingly accessible to online predators and
pedophiles. In January, police in
[21] It is not uncommon for student profiles to contain sexually suggestive and alcohol-related photos. In addition to possibly violating Student Codes of Conduct, such content is often evidence of illegal conduct and law enforcement officers are increasingly using these online social networks to incriminate students for underage drinking. See Facebook, Wikipedia, http://en.wikipedia.org/wiki/Facebook's_use_in_investigations (tracking alcohol policy violations).
[22] Some school administrators believe that regulation of online social networks is warranted, even when their use occurs off-campus, in order to prevent student conflict from erupting during school, which administrators fear will inevitably happen if students are free to pass critical judgment on their peers.
[23] Since private schools are, generally, not restricted in their actions by the U.S. Constitution, they can penalize students for just about anything they want—including student expression they don’t like—but typically support their actions with claims that the student violated the school’s code of conduct. This argument does not work as well in the context of public schools (considering they are state actors), because any school rule restriction student speech must pass muster under the First Amendment.
[24] After
suspending three students from
[25]
[26] In
October 2005, the
[27] In September 2005,
[28] Generation Y—also known as the Net Generation or Echo Boomers—generally includes those currently between the ages of 5 to 28; basically those born between, 1978-2000. See, e.g., Generation Y, Wikipedia, http://en.wikipedia.org/wiki/Generation_Y.
[29] Non-students and alumnae are also active users of MySpace and Facebook, but the scope of this article is limited to student users over the age of 14 (which is the threshold age of use required by the OSNs).
[30] MySpace and Facebook are accessible internationally.
[31] See Tara
Bahrampour & Lori Aratani,
[32]
MySpace.com was launched in January 2004 by two techies from
[33] Facebook.com was created in February 2004 by 21-year-old Harvard student, Mark Zuckerberg, who sought to create a digitalized version of the books that universities sometimes provide to students. The OSN’s vast expansion since its inception was largely enabled by Accel Partners’ venture capital investment of $12.7 in May, 2005. Since then, Facebook has become the seventh most trafficked site on the web, boasting over 15 million users. See Facebook, Wikipedia, http://en.wikipedia.org/wiki/Facebook. See also Steve Rosenbush, Facebook’s on the Block, Business Week Online, Mar. 28, 2006, http://www.businessweek.com/technology/content/mar2006/tc20060327_215976.htm?chan=technology_technology+index+page_today's+top+stories.
[34] Users can also activate privacy options which require everyone to obtain permission to view the user’s profile. When such permission is requested, the user will receive a “friend request” via email, which s/he can choose to grant to decline.
[35] MySpace users can manually “block” specific people from accessing the user’s profile, or from specific aspects of the profile, but this is not the default mode of the OSN.
[36] These “group affiliations” are fictitious groups that are typically based in specific interests, opinions, etc. and designed to attract like-minded individuals. It is the creation of groups that are critical or disparaging of others that has been the source of much of the furor surrounding MySpace and Facebook.
[37]
[38] 395
[39] 274
[40] LaVine
v.
[41] Watts v. U.S., 394 U.S. 705, 707 (1969) (holding that Watts’ statement—which made reference to shooting the President—was political hyperbole that did not rise to the level of a threat).
[42] See generally Anna S. Andrews, When is a Threat "Truly" a Threat
Lacking First Amendment Protection?
A Proposed True Threats Test to Safeguard Free Speech Rights in the Age of the Internet, The UCLA Online Institute for Cyberspace Law and Policy, May 1999, http://www.gseis.ucla.edu/iclp/aandrews2.htm (proposing a threats test that better balances free speech concerns with the prohibition of threats and the protection of potential victims).
[43]
[44]
[45] Lovell
v.
[46] Id at 368.
[47] Kathryn
E. McIntyre, Hysteria Trumps First
Amendment: Balancing Student Speech With School Safety, 7
[48] Facebook actually reserves the right to remove certain offensive/inappropriate content from the site, if it is brought to the company’s attention, as its standard policy prohibits the posting of nudity, hate speech and photos of illegal activity, which it is fully entitled to do as a privately owned company.
[49] This will be discussed in more depth in Part II § C(2).
[50] Miller
v.
[51] Intentional infliction of emotional distress and false light invasion of privacy are additional claims that people can bring against someone for making, allegedly, false and defamatory comments, but—since they can essentially be categorized with the principles of defamation—they will not be further discussed in this article.
[52] Defamation may be defined as statements that tend to expose a person to “hatred, ridicule or contempt,” having the tendency to “so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating with him. Defamation may reflect unfavorably on someone’s morality or integrity or discredit a person in his/her occupation; it may restrict a person’s social contacts by asserting that the individual has a mental illness or a particularly undesirable and contagious disease. See Restatement (Second) of Torts § 559.
[53] See Don R. Pember & Clay Calvert, Mass Media Law 141-142 (McGraw Hill 2005-2006) (2005).
[54] The ultimate defense to a libel charge is truth.
[55] See id. at 144-162.
[56] See New York Times v. Sullivan, 376 U.S. 254 (1964) (holding that public officials must prove that defendant acted with actual malice—knowledge of falsity or reckless disregard for the truth— in publishing the allegedly defamatory material in order to collect damages). See also Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (extending the New York Times Actual Malice standard to all-purpose, and limited-purpose, public figures).
[57] See Hustler Magazine v. Falwell, 485 U.S. 46 (1988) (holding satirical advertisement for Campari Liqueur did not constitute libel because no reasonable person would believe that the statements about Falwell were factual).
[58] Words, written or spoken, that attack an individual or groups because of their race, ethnic background, religion, gender or sexual orientation. Pember, supra note 53, at 121.
[59] See Chaplinski v.
[60]
[61] Literally means “in the place of a parent.”
[62] Tinker v. Des Moines Sch. Dist.,
393
[63]
[64]
[65]
[66]
Hazelwood v. Kuhlmeier, 484
[67] Tinker, supra note 62, at 509.
[68]
[69] Boman
v. Bluestem Unified Sch. Dist., 2000 WL 297167 (D.
[70]
[71] Fraser, supra note 65, at 685-686.
[72] Fraser delivered a speech, nominating a fellow classmate for an office in student government, during which he referred to the candidate in terms of “elaborate, graphic and explicit sexual metaphor.” As a result, Fraser was suspended for three days and removed from the list of candidates to give the commencement speech. See id. at 675.
[73] Fraser, supra note 65, at 683.
[74]
Broussard v. Sch. Brd. of the City of
[75]
[76] Hazelwood, supra note 66, at 273.
[77] The
principal of Hazelwood East H.S. in
[78] This, according to the Court, was the factor that distinguished Hazelwood from Tinker. Whereas Tinker dealt with the right of educators to silence a student’s personal expression that just happens to occur on school property, Hazelwood concerns the authority of educators over school-sponsored publications, thus entitling them to more control. See id. at 271.
[79]
[80] Healy
v. James, 408
[81]
[82]
[83] 410
[84] The
cartoon depicted a policemen raping Statue of Liberty and the Goddess of Justice,
while the accompanying headline story was entitled 'M-----f----- Acquitted' and
discussed trial and acquittal of youth who was a member of an organization
known as 'Up Against the Wall, M-----f-----'.
[85]
[86] Marc
Abrams & Mark Goodman, End of an Era?
The Decline of Student Press Rights in the Wake of
[87] Determining that the yearbook was a limited public forum meant that it is made available by the State for indiscriminate use as a place for expressive activity, and any restrictions must be content-neutral and viewpoint neutral. See Kincaid v. Gibson, 236 F.3d 342 (6th Cir. 2001).
[88] Student newspaper considered a nonpublic forum because it had not been intentionally structured by the school administration as such and because it was published as part of the school’s educational curriculum, rather than a forum for public discourse. Restrictions on free speech occurring in nonpublic forums are permitted provided they are reasonable and viewpoint neutral. See Hazelwood, supra 66.
[89] While a public forum analysis of the OSNs at issue here could introduce an interesting element to the discussion, it would unduly burden the scope of this article as it would require an in-depth inquiry into the forum status of the Internet as well as MySpace and Facebook, which are privately owned and operated services. While, due to the nature and use of OSNs, an argument by analogy could likely be made that the public forum doctrine should be applicable here, this discussion avoids delving further into that possibility. It is noteworthy, however, that the State may impose time, place, and manner regulations on the expressive use of public fora so long as they are content-neutral, serve significant governmental purposes, and leave open alternative channels of communication.
[90] Tinker, supra note 62, at 512.
[91] Fraser, supra note 65, at 688.
[92] See generally Clay Calvert, Off-Campus Speech, On-Campus Punishment: Censorship of the Emerging Internet Underground, 7 B.U. J. Sci. & Tech. L. 243 (2001) (inquiring as to when, if ever, is on-campus punishment appropriate for off-campus speech and providing numerous examples of recent case studies).
[93]
[94] See Calvert, supra note 92, at 253-262.
[95] Emmett
v.
[96]
[97] See Beussink v.
[98] See Calvert, supra note 92, at 253-262 (including associated footnotes, which provide citations of various cases not specifically addressed in text).
[99] This strict scrutiny standard makes it very difficult for a content-based regulation to fall beyond the scope of First Amendment protection.
[100] See Calvert, supra note 92, at 265 (citing Rhoda J. Yen, Censorship of Student Expression on the Internet and the First Amendment, UCLA Bull. L. & Tech., Feb. 9, 2000, at 29).
[101] The
student creator bringing the speech onto campus is to be distinguished from an
educator downloading it to a school computer for review; this act “does not
constitute the intentional downloading of the site in school by the student.”
[102]
[103] See Nicholas Johnson, Orders of Magnitude and the 99.9%-Off
[104] Exceptionalists argue that cyberspace is so different from real space—in terms of speed, scale, cost, etc.—that it necessitates a whole new legal framework, akin to the law of the horse. Unexceptionalists, on the other hand, argue that cyberspace can be conceptualized by analogy to preexisting categories of law.
[105] This would obviously be somewhat more difficult to monitor, but it would put students on notice that they will be violating a school policy if they do use such sites while at school and thus subject to disciplinary action.
[106] Prohibiting the use of school email addresses for use in OSNs raises complex questions of property, as well as constitutionally impermissible content-based regulations.