Footnotes

David Hudson — J.D. Vanderbilt 1994; staff attorney with the First Amendment Center at Vanderbilt University. The author would like to thank the attorneys who discussed their cases with him for sharing their time and expertise, particularly Kenneth Myers and Aaron Caplan. In addition, thanks are extended to Ken Paulson, Executive Director of the First Amendment Center, and John Seigenthaler, the Center's founder, for their support.

1. Beidler v. North Thurston Sch. Dist. No. 99-2-00236-6 (Wash. Super. Ct.) (July 18, 2000) (McPhee, J.).

2. Tinker v. Des Moines, 393 U.S. 503, 506 (1969).

3. See Reno v. ACLU, 521 U.S. 844 (1997).

4. See Student Press Law Center Report Fall 1997, The other side of the schoolhouse gate ; Leora Harpaz, Internet Speech and the First Amendment Rights of Public School Students, 2000 BYU L. Rev. 123.

5. See Jon Katz, Let's stop isolating geek, Net culture.

6. See Nat Hentoff, Free Speech for Me — But Not for Thee, 358- 86 (1992).

7. See generally David L. Hudson, Columbine tragedy fuels push for filtering measure in Senate.

8. See id.; Ken Paulson, Don't Settle for scapegoats in Littleton.

9. See David Hudson, Filtered Access Looms Large in Federal and State Legislatures, First Amendment and the Media 2000 at 11-14.

10. See infra Part III. For example, in one instance parents are fighting school district's suspension on their son for an 'impolite' website.

11. 393 U.S. 503 (1969).

12. See Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 504 (1969).

13. See Tinker, 393 U.S. at 304.

14. Id. at 504.

15. See id.

16. See id.

17. See id.

18. Tinker v. Des Moines Indep. Community Sch. Dist., 258 F. Supp. 971 (S.D. Iowa 1966).

19. Tinker v. Des Moines Indep. Community Sch. Dist., 383 F.2d 988 (8th Cir. 1967).

20. See Tinker, 393 U.S. at 741.

21. Id. at 506.

22. See id. at 513.

23. Id. at 508.

24. Id. at 514.

25. See Nadine Strossen, Students' Rights and How They are Wronged, 32 U. Rich. L. Rev. 457, 458 (1998) ("Unfortunately, Tinker was in many ways a high-water mark for students' rights, and we have seen some sad back-sliding in Supreme Court decisions about students' rights since then."); John W. Johnson, The Struggle for Student Rights 212-17 (1997).

26. See id.; Stuart Leviton, Is Anyone Listening to Our Students? A Plea for Respect and Inclusion, 21 Fla. St. U. L. Rev. 35 (1993) (discussing how the Supreme Court cut back on students' constitutional rights).

27. 469 U.S. 325 (1985).

28. See New Jersey v. T.L.O., 469 U.S. 325, 742 (1985).

29. T.L.O., 469 U.S. at 340.

30. See id.

31. 478 U.S. 675 (1986).

32. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686-87 (1986).

33. See Fraser, 478 U.S. at 675.

34. See id. at 676.

35. Id. at 683.

36. Id.

37. See Eve Cary et. al, The Rights of Students 29-30 (1997); Broussard v. School Board of the City of Norfolk, 801 F.Supp. 1526 (E.D. Va. 1992) (applying Fraser to student-initiated speech); D.G. v. Independent Sch. Dist. no. 11, 2000 U.S. Dist LEXIS 12197 (N.D. Ok. Aug. 21, 2000) (stating that Fraser applies only to school-sponsored speech).

38. 484 U.S. 260 (1988).

39. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 262 (1988).

40. See Kuhlmeier, 484 U.S. at 270-71 ("The question whether the First Amendment requires a school to tolerate particular student speech — the question that we addressed in Tinker — is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech." Id.).

41. Id. at 273.

42. See Hentoff, supra note 5, at 358 ("This decision gave school officials virtually unchecked power to censor any student expression that is school sponsored or appears to have the school imprimatur." Id.).

43. See generally, Tinker, 393 U.S. at 513; Kuhlmeier, 484 U.S. at 570.

44. Student Press Law Center, Law of the Student Press at 43 (1994) ("[s]o if a publication can be described as independent of the school's curriculum, Tinker will set the standard for administrative censorship.").

45. See generally, Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175 (E.D. Mo. 1998); see also Beidler v. North Thurston Sch. Dist. No. 3, No. 99-2-00236-6 (Wash. Sup. Ct. July 18, 2000); J.S. v. Bethlehem Sch. Dist., 757 A.2d 412 (Pa. Commw. 2000).

46. Ken Paulson, Long arm of high school censors shouldn't reach students' homes.

47. See Klein v. Smith, 635 F. Supp. 1440 (D. Me. 1986) (school officials violated First Amendment rights of students by punishing him for giving teacher the middle finger off campus). But see Fenton v. Stear, 423 F. Supp. 767 (W.D. Pa. 1976) (student suspension for calling a teacher a "prick" in the parking lot of a shopping mall did not violate students' First Amendment rights).

48. 635 F. Supp. 1440 (D. Me. 1986).

49. See Klein, 635 F. Supp. at 1441.

50. Id.

51. Id.

52. Id.

53. 607 F.2d 1043 (2d Cir. 1979).

54. See Thomas v. Board of Ed. Granville Cent. Sch. Dist., 607 F.2d 1043, 1047 (2d Cir. 1979).

55. See Thomas, 607 F.2d at 1045.

56. See id.

57. Id.

58. Id. at 1044.

59. Id. at 1050.

60. See id. at 1051.

61. Thomas, 607 F.2d at 1051.

62. Id. at 1052, n.17.

63. See Rodney Smolla, Free Speech in an Open Society, 337-42 (1992) ("Historically, technological innovations in communications have worked revolutions in law and policy, often triggering cycles of robust free expression followed by official regulation, or even censorship, followed in turn by protest and eloquent pleas for freedom.").

64. See id. at 338.

65. See Mutual Film Corp. v. Industrial Comm'n of Ohio, 236 U.S. 230, 242 (1915)But they may be used for evil, and against that possibility the statute was enacted. Their power of amusement, and, it may be, education, the audiences they assemble, not of women alone nor of men alone, but together, not of adults only, but of children, make them the more insidious in corruption by a pretense of worthy purpose or if they should degenerate from worthy purpose. Id.

66. See Burstyn v. Wilson, 343 U.S. 495, 501 (1952) ("It cannot be doubted that motion pictures are a significant medium for the communication of ideas. They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression.").

67. Robert Corn-Revere, Red Lion and the Culture of Regulation in Rationalizations & Realizations: Regulating the Electronic Media 6-8 (Robert Corn-Revere ed., 1997).

68. See id. at 8.

69. 47 U.S.C. § 223(a)(1)(B)(ii); 47 U.S.C. § 223(d).

70. Mike Godwin , Cyber Rights 206 (1998); see also Jonathan Wallace, Sex, Laws and Cyberspace 125-52 (1996).

71. 521 U.S. 844 (1997).

72. See Reno v. ACLU, 521 U.S. 844 (1997).

73. Reno, 521 U.S. at 871.

74. Id. at 877.

75. Id. at 874.

76. See id. at 870 ("We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.").

77. See David Hudson, Congress shows continued interest in regulating Internet.

78. See id.

79. See ACLU v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999).

80. See ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999) (striking a New Mexico Internet indecency law on First Amendment and Commerce Clause grounds); American Library Ass'n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997) (deciding that the New York Internet indecency law was violative of the Commerce Clause); Cyberspace Communications v. Engler, 55 F. Supp. 2d 737 (E.D. Mich. 1999) (ruling that Michigan Internet content law was unconstitutional on First Amendment and Commerce Clause grounds).

81. See David L. Hudson, Jr. Filtered Internet Access Looms Large in Federal and State Legislatures, in The First Amendment and the Media 2000 (2000) 11-14. (describing federal and state filtering bills).

82. See id. at 12.

83. See David Hudson, Columbine tragedy fuels push for filtering measure in Senate.

84. See id.

85. Id.

86. Id.

87. See Hudson, supra note 77, at 11.

88. See id.

89. See Mainstream Loudoun v. Board of Trustees of the Loudoun County Pub. Library, 24 F. Supp. 2d 552 (E.D. Va. 1998).

90. See Interview with Paul Houston, Executive Director of the American Association of School Administrators (May 2, 2000).

91. See Boman v. Bluestem Unified Sch. Dist. No. 205, No. 00-1034-WEB, 2000 WL 433083 (D. Kan., 2000) (student suspended for poster of poem about madman upset about his dog being killed) (permanent injunction granted); LaVine v. Blaine Sch. Dist., No. C99-1074R (W.D. Wash., 1999) (federal district courts have ruled in favor of both Sarah Boman and Jame LaVine); D.C. v. Independent Sch. Dist. No. 11, 2000 U.S. Dist. LEXIS 12197 (N.D. Ok. Aug. 21, 2000); see also David Hudson, Case of student expelled for poem could test First Amendment in public schools.

92. See Margaret Graham Tebo, Zero Tolerance, Zero Sense, A.B.A. J. 40-46, 113 (2000).

93. See David Hudson, Student claims he was suspended for Columbine comments in Net chat room.

94. The Associated Press, Jury convicts NC teen over message left on school computer. The student appealed his conviction. Interview with Sophie Hosford, Student's Attorney (Apr. 27, 2000).

95. See Interview with Paul Houston, supra note 90.

96. See Nancy Murray, Safety in Schools: Are We on the Right Track.

97. Jon Katz, Schools' solution to violence: silence the weird
("Why are schools adopting increasingly draconian measures to silence the non-normal, becoming more repressive and fearful even though violence in schools and among the young in general has been dropping sharply for years?").

98. See Associated Press, School district blocks student access to e-mail.

99. See David Hudson, School board restricts student access to Internet's 'controversial materials.'

100. See David Hudson, Company to filter Internet access for all Tennessee public schools.

101. See Jodi Matthews, Georgia teen loses appeal for reinstatement at middle school.

102. See Garner K. Weng, Type No Evil: The Proper Latitude of Public Educational Institutions in Restricting Expressions of Their Students on the Internet 20 Hastings Comm. & Ent. L.J. 751, 758 (1998) ("How much legal authority do educational institutions have in these situations? This seemingly simple question sits at the crossroads of general First Amendment jurisprudence, the context of the school as it affects constitutional and other law, and the Internet as a medium of communication.").

103. Lisa M. Pisciotta, Comment, Beyond Sticks & Stones: A First Amendment Framework for Educators Who Seek to Punish Student Threats, 30 Seton Hall L. Rev. 635 (2000).

104. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975) ("But when the government, acting as censor, undertakes selectively to shield the public from some kinds of speech on the ground that they are more offensive than others, the First Amendment strictly limits its power."); Texas v. Johnson, 491 U.S. 397, 414 (1989) ("If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.").

105. See The Other Side of the Schoolhouse Gate, The SPLC Report (Student Press Law Center, Arlington, Va.), Fall 1997 at 20 (visited May 30, 2000).

106. See id.

107. See id.

108. Phillip Taylor, Ohio students who posted messages on a Gothic Website return to school.

109. No. 1:98CV 647 (E.D. Ohio 1998).

110. See Complaint at 5, O'Brien v. Westlake City Sch. Bd. of Educ., No. 1:98CV 64 (E.D. Ohio 1998).

111. Id. at 6 n.19.

112. See id. at 7-8 n.23.

113. Id. at 8 n.24.

114. Id. at 9 n.26

115. See id.

116. See O'Brien Complaint, at 9.

117. See id.

118. Plaintiff's Memorandum in Support of Motion for Temporary Restraining Order at 17, O'Brien, No. 1:98CV 647.

119. Id.

120. See id. at 12 ("Before the Internet was even a gleam in anyone's eye, schools were attempting to punish students for off-site expressive activities. And such attempts by school administrators to extend their regulatory power beyond school grounds have met with little success.").

121. See id. at 18.

122. Order Granting Temporary Restraining Order, at 3 O'Brien, No. 1:98CV 647.

123. Interview with Kenneth Myers (May 4, 2000).

124. See Associated Press, Ohio teen, school officials settle Website lawsuit.

125. Settlement letter in the O'Brien case (faxed by O'Brien's attorney Kenneth Myers).

126. 30 F. Supp. 2d 1175 (E.D. Mo. 1998).

127. Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175, 1177 (E.D. Mo. 1998).

128. Beussink, 30 F. Supp. 2d at 1177.

129. See id.

130. Id. at 1178.

131. See id.

132. See id.

133. Id. at 1180.

134. Beussink, 30 F. Supp. 2d at 1177.

135. Id. at 1180.

136. Id. at 1181.

137. Terminiello v. Chicago, 337 U.S. 1, 4 (1949).

138. Terminiello, 337 U.S. at 4.

139. Beussink, 30 F. Supp. 2d. at 1182.

140. 92 F.Supp. 2d 1088 (W.D. Wash. 2000)

141. See Emmett v. Kent Sch. Dist. No. 415, 92 F. Supp. 2d 1088, 1089 (W.D. Wash. 2000).

142. See Emmett, 92 F. Supp. 2d at 1089.

143. See id.

144. See id.

145. See id.

146. See id.

147. See id.

148. See Emmett, 92 F. Supp. 2d at 1089.

149. See id.

150. See id. at 1090.

151. See id.

152. See id.

153. Id.

154. Id.

155. Id.

156. Emmett, 92 F. Supp. 2d at 1090.

157. Interview with Aaron Caplan, Attorney for Emmett and the American Civil Liberties Union of Washington, (May 3, 2000).

158. No. 99-2-00236-6 (Wash. Super. Ct. July 18, 2000).

159. Plaintiff's Motion for Partial Summary Judgment at 3-4, Beidler v. North Thurston Sch. Dist. No. 3, No. 99-2-00236-6 at 3 (Wash. Super. Ct. July 18, 2000).

160. See id.

161. Plaintiff's Motion for Partial Summary Judgment at 3-4, Beidler, No. 99-2-00236-6.

162. See id.

163. See id.

164. See id.

165. See id.

166.

166. Plaintiff's Motion for Partial Summary Judgment at 8, Beidler, No. 99-2-00236-6.

167. See id.

168. Plaintiff's Motion for Partial Summary Judgment at 11-14.

169. Plaintiff's Opposition to Defendant's Motion for Summary Judgment at 7-9.

170. Beidler, No. 99-2-0023606 at 3.

171. Id. at 4.

172. See id.

173. Id. at 4-5.

174. Id. at 6. School employees or teachers may bring a separate defamation action against students for website speech that is created off-campus. See Grimes v. Conradt, 99-29CO1-CP494, (Hamilton County Ct, Ind. 1999) (lawsuit filed by three teachers against student for allegedly defamatory comments about teacher on website). According to plaintiff's attorney, Richard Darko, the suit was settled.

175. 757 A.2d 412 (Pa. Commw. 2000).

176. See J.S. v. Bethlehem Area Sch. Dist., 757 A.2d 412, 415-16 (Pa. Commw. Ct. 2000).

177. Bethlehem, 757 A.2d at 416.

178. See id. at 415.

179. See id.

180. See id.

181. See id. at 417.

182. See id. at 418-20 (citing Donavan v. Ritchie, 68 F.3d 14 (1st Cir. 1995) (school could punish student for compiling a "shit list" of people he disliked); Fenton v. Stear, 423 F. Supp. 767 (W.D. Pa. 1976) (student could be suspending for calling teacher "a prick" in the parking lot of a shopping mall)).

183. See Bethlehem, 757 A.2d at 421.

184. Id.

185. Id. at 424.

186. Id.

187. Id.

188. See id. at 421.

189. Bethlehem, 757 A.2d at 426-29 (Friedman, J., dissenting) (Judge Friedman cited Watts v. United States, 394 U.S. 705 (1969), for the proposition that only "'true threats' fall outside the protection of the First Amendment." Id. at 426.).

190. Interview with Robert E. Sletvold (October 12, 2000).

191. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988).

192. Beussink v. Woodland R-IV Sch. Dist. 30 F. Supp. 2d 1175, 1177 (E.D. Mo. 1998).

193. See Beussink, 30 F. Supp. 2d at 1177.

194. See id.

195. Interview with Aaron Caplan, co-counsel for Nick Emmett and Kurt Beidler (May 10, 2000).

196. Bystrom v. Fridley High Sch. Indep. Sch. Dist., 822 F.2d 747 (9th Cir. 1987) (Tinker applies because underground student newspaper distributed at school); Thomas v. Board of Educ. of Granville Cent. Sch. Dist., 607 F.2d 1043 (2d Cir. 1979) (underground student newspaper not analyzed under Tinker because paper not distributed at school).

197. 134 F.3d 821 (7th Cir. 1998).

198. See Boucher v. School Bd. of the Sch. Dist. of Greenfield, 134 F.3d 821, 825 (7th Cir. 1998).

199. Boucher, 134 F.3d at 829.

200. See id. at 825.

201. SeeHarpaz, supra note 4, at 147 ("The court did not explain why it found Tinker to be the relevant precedent." Id.).

202. Id.

203. Emmett v. Kent Sch. Dist. No. 415, 92 F. Supp. 2d 1089, 1090 (W.D. Wash. 2000).

204. Emmett, 92 F. Supp. 2d at 1090.

205. See Thomas v. Board of Ed. Granville Cent. Sch. Dist. 607 F.2d 1043, 1052 n.17 ("We can of course envision a case in which a group of students incites substantial disruption within the school from some remote locale.").

206. Pisciotta, supra note 103, at 665-66.

207. Id.

208. See Strossen, supra note 24, at 460.

209. See generally, David Hudson, Teacher honored for free-speech commitment sounds off on censorship.

210. See Katz, supra note 97.

211. SeeKen Paulson, Don't settle for scapegoats in Littleton.