Off-Campus Internet Speech Cases

Many schools have had difficulty in determining how to apply principles from the print medium to cyberspace. Perhaps the difficulty is understandable given the lack of case law on the subject.¹⁰²

Schools obviously have some interest in student speech that constitutes a "true threat."¹⁰³ Yet school officials must distinguish between student speech that is truly threatening and student speech that is merely offensive. Offensive, nonthreatening speech receives First Amendment protection.¹⁰⁴

School officials, however, have shown a history of seeking to regulate student website speech that is merely offensive.¹⁰⁵ A high school senior from Bellevue, Washington, had school support for his National Merit finalist candidacy withdrawn after the school learned of his homepage that parodied the school.¹⁰⁶ Other public school students have been punished or targeted for their speech on the Internet.¹⁰⁷ Several students from Field High School and Middle School in Brimfield, Ohio, were suspended from school in May 1999 after a teacher discovered their "Gothic" website entitled "The Field Dominion of Freaks."¹⁰⁸ Several other cases described below demonstrate the difficulty school administrators have in determining whether their actions comport with the Constitution.

A. O'Brien v. Westlake City Schools Board of Education¹⁰⁹

Sean O'Brien, while a sixteen-year-old junior at Westlake High School, created a website in March 1998 that lampooned his band teacher Raymond Walczuk.¹¹⁰ His web page "raymondsucks.org" contained several unflattering comments about Walczuk, including:

"He is an overweight middle-aged man who doesn't like to get haircuts . . . He likes to involve himself in everything you do, demands that band be your number one priority, and favors people who kiss his ass . . . He often thinks that problems are caused by certain students and/or groups of students and no one else."¹¹¹

Predictably, O'Brien's website did not amuse school officials. After school officials used school computers to access the material, an assistant school principal determined that O'Brien violated the Student Conduct Handbook.¹¹² The handbook contained a rule, Conduct Against Board of Education or Their Employees, which provided, "[a] student shall not physically assault, threaten to assault, vandalize, damage, or attempt to damage the property of a school employee or his/her family or demonstrate physical, written or verbal disrespect/threat."¹¹³ The rule provided for a ten-day suspension.¹¹⁴

Sean received an "F" in band and reduced grades in other courses as a result of his suspension.¹¹⁵ O'Brien sued the board of education on March 18.¹¹⁶ Along with his complaint, his attorneys filed a motion for a temporary restraining order.¹¹⁷

In their memorandum of law in support of a temporary restraining order, O'Brien's attorneys argued that "the involvement by the school in punishing plaintiff for posting an Internet website critical of defendant Walczuk raises the ugly specter of Big Brother."¹¹⁸ The attorneys queried: "Is a student not permitted to sit in a coffee shop with friends and tell other students what he thinks of a particular teacher, for fear that if someone overhears and gets word back to the teacher that the student was 'disrespecting' that teacher, that he will be suspended?"¹¹⁹

O'Brien contended that school officials did not have the authority to regulate students' non-threatening speech that was created off campus.¹²⁰ "It would be different if plaintiff hurled obscenities at his teacher face-to-face on school grounds in front of other students. But here, defendants are punishing plaintiffs because he criticized his teacher off-campus and the teacher found out about it."¹²¹

U.S. District Judge John M. Manos granted O'Brien a temporary restraining order, requiring school officials to "forthwith restore him as a student in good standing."¹²² According to one of Sean O'Brien's attorney, Kenneth Myers, "it took Judge Manos all of about 30 seconds to grant the temporary restraining order."¹²³

School officials settled with O'Brien by agreeing to pay him $30,000, expunging the suspension from his record and writing a letter of apology.¹²⁴ An April 8, 1998, letter to Dr. Vincent O'Brien by Dr. Beverly Reep, Superintendent of Westlake City School, stated, "[f]inally, I wish to offer my sincere apology for the misunderstanding which resulted in the imposition of this disciplinary action. Please know that it is neither the Board's policy nor the administration's practice to abridge students' legitimate exercise of their constitutional rights." Reep acknowledged that "the Board recognized that this right [to freedom of speech] extends to students who, on their own time and with their own resources, engage in speech on the Internet."¹²⁵

B. Beussink v. Woodland R-IV School District¹²⁶

Brandon Beussink, then a junior at Woodland High School, created his own homepage on his own computer at his own home.¹²⁷ The homepage was "highly critical" of the school administration and included vulgar language in his opinions of teachers and the principal.¹²⁸

Another student showed Beussink's page at school in the presence of a teacher, who then informed the principal.¹²⁹ The teacher was upset by the content of the website.¹³⁰ The principal initially suspended Beussink for five days because he was offended by the content on the site, and he later extended the suspension to ten days.¹³¹ The principal testified that the moment he saw Beussink's homepage, he knew he was going to discipline Beussink.¹³²

District Judge Rodney Sippel analyzed the case under the Tinker standard. According to Sippel, school officials "must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."¹³³ The judge relied on the principal's testimony that he disciplined Beussink because he was upset by the page's content, not because the home page had caused any substantial disruption at school.¹³⁴ "Disliking or being upset by the content of a student's speech is not an acceptable justification for limiting student speech under Tinker," the judge wrote.¹³⁵

The court noted that some may believe that schools should be able to discipline students to serve their interest in orderly schools "in whatever manner the school district deems appropriate."¹³⁶ However, Sippel noted Justice Douglas' often-cited language from Terminiello v. City of Chicago:¹³⁷ "It may indeed serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging."¹³⁸

Judge Sippel noted, "The public interest is not only served by allowing Beussink's message to be free from censure, but also by giving the students at Woodland High School this opportunity to see the protections of the United States Constitution and the Bill of Rights at work."¹³⁹

C. Emmett v. Kent School District No. 415¹⁴⁰

In the Emmett case, an eighteen-year-old honor student posted a web page on the Internet from his home entitled the "Unofficial Kentlake High Home Page."¹⁴¹ The site included a disclaimer that the site was not sponsored by the school and was for entertainment purposes only.¹⁴² Nick Emmett's home page contained mock "obituaries" of two of his friends.¹⁴³ Apparently, the obituaries became the topic of discussion at school among students, faculty, and administrators.¹⁴⁴ The site also allowed web page visitors to vote on who would die next.¹⁴⁵

The controversy came after an evening television news story depicted his site as containing a "hit list" of people to be killed.¹⁴⁶ Even though Emmett immediately removed his site from the Internet, the principal placed him on emergency expulsion for harassment, intimidation, disruption to the educational environment and copyright violations.¹⁴⁷ The expulsion was later modified to a five-day suspension.¹⁴⁸ Emmett sued in federal court, contending that the suspension violated his First Amendment free-expression rights.¹⁴⁹

District Judge John C. Coughenour began his analysis with a discussion of the Tinker case.¹⁵⁰ The judge then distinguished Emmett's case from the school assembly speech at issue in Fraser and the school-sponsored speech at issue in Kuhlmeier.¹⁵¹ Emmett's website "was not produced in connection with any class or school project. Although the intended audience was undoubtedly connected to Kentlake High School, the speech was entirely outside of the school's supervision or control."¹⁵²

The judge acknowledged that school officials are operating in a post-Columbine world, writing, "The defendant argues, persuasively, that school administrators are in an acutely difficult position after recent school shootings in Colorado, Oregon, and other places."¹⁵³

Judge Coughenour even acknowledged that content on a student web page can indicate a student's "violent indications."¹⁵⁴ However, the judge noted that the school officials failed to present any "evidence that the mock obituaries and voting on this website were intended to threaten anyone, . . . or manifested any violent tendencies whatsoever."¹⁵⁵

The judge concluded, "[t]his lack of evidence, combined with the above findings regarding the out-of-school nature of the speech, indicates that the plaintiff has a substantial likelihood of success on the merits of his claim."¹⁵⁶ The school district later settled the dispute by agreeing to pay one dollar and attorney fees, and remove the suspension from Emmett's record.¹⁵⁷

D. Beidler v. North Thurston School District No. 3¹⁵⁸

Karl Beidler created a web page in January 1999 while he was a junior at Timberline High School in Thurston County, Washington.¹⁵⁹ His site, entitled "Lehnis Web" parodied Dave Lehnis, the then-assistant principal of his school.¹⁶⁰ The site showed Lehnis participating in a Nazi book burning, drinking beer and spray painting graffiti on a wall.¹⁶¹

In late January 1999, the school principal placed Beidler on "emergency expulsion."¹⁶² According to Beidler, the principal told him some teachers said they felt uncomfortable about having Beidler in their classes due to the content of his website.¹⁶³ The principal also testified that he found the website "personally appalling" and "real inappropriate."¹⁶⁴

Beidler was transferred to an alternative high school for his junior year.¹⁶⁵ He returned to Timberlake for his senior year, during which he has not suffered any discipline problems.¹⁶⁶ In February 1999, a state judge denied Beidler's motion for a temporary restraining order.¹⁶⁷

The plaintiffs contended the case was "remarkably similar" to Beussink. They argued that the school district "has no authority to police students' off-campus or Internet speech."¹⁶⁸ The plaintiffs argued that even if the court applies the Tinker standard, the plaintiff should still apply because the website caused no substantial disruption.¹⁶⁹

On July 18, 2000, a Washington trial court judge granted summary judgment to Beidler on his First Amendment claims. The judge first noted that the First Amendment rights of public school students remain constant even in the age of the Internet. "Today the first amendment protects student speech to the same extent as in 1979 or 1969, when the U.S. Supreme Court decided Tinker."¹⁷⁰

The Judge reasoned that even if school officials had authority to regulate Internet speech, Beidler's speech did not cause a substantial disruption under the Tinker standard.¹⁷¹

The court also rejected the school district's arguments that it could regulate Beidler's off-campus speech under the Hazelwood andFraser decisions. The judge reasoned that Hazelwood only applies to school-sponsored speech and thus "provides no support for defendants."¹⁷²

The court also rejected the argument that Fraser empowered the school to regulate Beidler's vulgar and offensive speech. "Fraser might provide support for disciplining Beidler if the defendants could show that the circumstances of his speech were in any way analogous to the circumstances in Fraser," the judge wrote.¹⁷³

However, the judge properly concluded that Beidler's speech was off-campus, not on-campus, and rejected the application of the Fraser standard. The judge also ruled that the school district was not justified in punishing Beidler even if his speech was defamatory. The judge reasoned that even if the speech were defamatory, "that action is not this action" and "the First Amendment does not permit such a result."¹⁷⁴

E. J.S. v. Bethlehem Area School District¹⁷⁵

In May 1998, J.S., an eighth-grade student at Nitschmann Middle School in Bethelehem, Pa., created a web page on his home computer that made numerous derogatory comments about his algebra teacher, the school principal and others.¹⁷⁶ The page contained such vulgar comments as: "She's a bitch;" "Why Should She Die?"; and "Take a look at the diagram and the reasons I gave, then give me $20.00 to help pay for the hitman."¹⁷⁷ The school principal and teacher considered some of the material on the website to be threats and called law enforcement officials, including the F.B.I. The student voluntarily removed the website one week after the principal learned of the website.¹⁷⁸

Even though the student went unpunished for the remainder of the school year, over the summer school officials eventually decided to suspend the student for three days in late July.¹⁷⁹ School officials then held a hearing on the suspension and decided in August to extend the suspension to ten days.¹⁸⁰ Then, school district officials commenced expulsion hearings and voted to permanently expel the student from its schools.¹⁸¹

The student appealed the school board's expulsion determination to a court of common pleas court, which affirmed. The student then appealed to the Commonwealth Court of Pennsylvania. A three-judge panel ruled two to one in favor of the school board.

The majority applied a Tinker analysis, citing cases establishing that schools can punish students for off-campus expressive conduct.¹⁸² The majority agreed with the judge in the Beussink case that Tinker is the correct analysis to apply.¹⁸³ "Thus, from the cases noted above, it is evident that the courts have allowed school officials to discipline students for conduct occurring off of school premises where it is established that the conduct materially and substantially interferes with the educational process," the majority wrote.¹⁸⁴

The majority then determined that the student's website "materially disrupted the learning environment."¹⁸⁵ The majority noted that "students discussed the website while at school and at school-sponsored activities."¹⁸⁶ The majority concluded: "To reiterate, courts recognize the authority of school officials to discipline students for off-campus activity where the activity materially and substantially interferes with the education process."¹⁸⁷

The majority also justified the school officials' actions because the teacher ridiculed on the website considered the website a threat. The court majority noted that the teacher was unable to finish the academic year and took a medical leave of absence the following year.¹⁸⁸

Judge Rochelle S. Friedman dissented, finding that school officials did not consider the website to be a true threat and that only true threats receive no First Amendment protection.¹⁸⁹ Robert E. Sletvold, attorney for J.S., said the case is currently being appealed to the state supreme court.¹⁹⁰