Off-campus student speech traditionally has been considered censorship-proof.1 Unfortunately, school officials, often citing concerns about school safety in the wake of incidents of school violence such as the Columbine shootings,2 increasingly are punishing students for outside-school expression, both on and off the Internet.3 While courts generally have ruled in favor of students' First Amendment rights on the Internet,4 the fact remains that no matter how careful students are, or how much the law is on their side, some school officials refuse to accept the idea that they cannot control or punish off-campus student behavior.

The First Amendment and the Web
For about 14 years, since the Supreme Court's decisions in Hazelwood5and Bethel School District No. 403 v. Fraser,6 the First Amendment scale in high school censorship battles has been decidedly tipped in favor of school administrators. While six states7 and a number of local school districts have passed laws or policies returning to their students some of the freedoms they lost, for most students in the country First Amendment rights in school-sponsored activities and publications are significantly limited. Sadly, administrative censorship in high school has become a way of life.8

But courts have long recognized the distinction between school-sponsored speech that occurs on campus and independent student speech that occurs off campus, which has typically been accorded greater legal protection.9 Less uniform, however, is the agreement on which First Amendment standard does apply to off-campus, private student speech. Specifically, once students leave school, do they enjoy the same First Amendment protections as any other citizen engaged in private speech activities? Or are they, simply because of their student status, always subject to at least some oversight by school authorities?

The wide accessibility of the Internet blurs the lines between on- and off-campus speech, throwing traditional First Amendment analysis of student speech for a loop. Not surprisingly, the subject recently has become the focus of much debate and uncertainty in school board meetings, principals' offices, classrooms and the courts.10

One of the first known incidents of school officials taking action against a student because of an independent Internet site occurred in 1995. Paul Kim, a senior honor student at Newport High School in Bellvue, Wash., created a Web site titled "The Newport High School Unofficial Home Page."11 The satirical site included information on Kim's friends and their preoccupation with football and sex. After viewing the site, the school's principal contacted National Merit Scholarship officials and the colleges to which Kim had applied and rescinded the school's recommendations. After Kim threatened to file a lawsuit, the school apologized, paid him $2,000 and reinstated its recommendations.12

Since then, there have been hundreds of similar incidents reported. Most of these incidents, like that involving Kim, are resolved short of litigation and almost always favor the student.13 However, some courts have suggested that students (presumably based on their status as minors) may have a lesser degree of First Amendment protection regardless of the context in which their expression occurs, at least when the effects of that expression can be felt within the school.14 To date, only five censorship cases dealing with independent student speech on the Internet have resulted in court rulings.15

Yet even taken together, these early cases provide limited guidance in predicting the scope of First Amendment protection for independent student speech on the Internet. However, two ideas have arguably begun to take root in the lower courts: (1) The "material disruption" standard introduced by the Supreme Court in its 1969 decision, Tinker v. Des Moines Independent Community School District,16 seems to be, for now, the standard of choice for courts in applying the First Amendment to independent student speech on the Internet where at least some parts of it trickle onto campus. (2) Even in situations where Internet speech takes place entirely outside of school, administrators may-in extreme and highly offensive cases-persuade a court to extend their Tinker-based authority to reach beyond school grounds.

While it is significant that the authority of school officials might reach to some private student speech on the Internet, it is important to keep in mind that the Tinker standard is still a very difficult standard for school officials to meet. Because Tinker recognizes the importance of independent thought and political speech, online underground newspapers with otherwise lawful stories (no libel, obscenity, etc.) that criticize school policies or teachers-stories that could, in some cases, be censored under Hazelwood but that would not satisfy the "material disruption" standard of Tinker-would be protected.

Conclusion
For many high school students today, the opportunity to express themselves in a school-sponsored medium without administrative censorship has been all but eliminated. The Internet has created a meaningful alternative, but it has also created a potential legal battleground. While the law, at least for now, favors students, the first few cases make clear that some courts are reluctant to completely tie the hands of school officials, even when the expression at issue exists entirely outside of school.

As always, the best defense that writers and editors of underground papers can have is a sense of journalistic responsibility coupled with an understanding of their specific legal rights and responsibilities. The Internet is a wonderful educational tool for budding journalists, especially if they are prepared to avoid problems before they surface.

Notes:
1 See, e.g.,Thomas v. Granville Central School District,607 F.2d 1043 (2d Cir. 1979).

2 On April 20, 1999, high school students Eric Harris and Dylan Klebold went on a shooting spree in their Littleton, Colo., public school, killing 14 students and one faculty member and wounding at least 20 other students before killing themselves. See Tom Kenworthy, A Day of Death and Fear in Colorado, Wash. Post, Apr. 21, 1999, at A1. The events in Littleton created a sense of urgency about the issue of student Internet use because one of the shooters had a Web site with comments that, read with the benefit of hindsight, seemed to forecast his actions. See Leora Harpaz, Internet Speech and the First Amendment Rights of Public School Students, 2000 B.Y.U. L. Rev. 123, 124 (2000).\

3 Nadine Strossen, Keeping The Constitution Inside The Schoolhouse Gate -- Students' Rights Thirty Years After Tinker v. Des Moines Independent Community School District, 48 Drake L. Rev. 445, 462 (2000).

4 See footnote 15, below.

5 484 U.S. 260 (1988).

6 478 U.S. 675 (1986).

7 See Ark. Stat. Ann. §§6-18-1201-1204 (Supp. 1995); Cal. Educ. Code §48907 (Deering Supp. 1991); Colo. Rev. Stat. §22-1-120 (1990); Iowa Code §280.22 (Supp. 1996); Kan. Stat. Ann. §§72.1504-72.1506 (1992); Mass. Gen. Laws Ann. Chi. 71, §82 (1991).

8 The SPLC reports that calls to the Center from student journalists seeking legal help rose more than 196 percent between 1988, the year the Hazelwood decision was handed down, and 1999.

9 For a detailed discussion on the various First Amendment standards applied to off-campus student speech, see The Other Side of the Schoolhouse Gate, (last viewed April 10, 2001). Also, while it is not the subject of this article, independent student speech that is distributed on campus -- for example, underground student newspapers -- continues to be subject to significant First Amendment protection. For more information, see the SPLC's Underground Newspaper Guide (last viewed May 3, 2001).

10 See Strossen, supra note 3, at 462, 463.

11 See Internet Prank Costs Student Scholarship, Student Press Law Center Report, Fall 1995, at 25.

12 See id.

13 See, e.g., Board Reverses Decision To Fine, Punish Student Web Hosts For Chat Room Threat, Student Press Law Center Report, Spring 2000, at 36; Student Settles Web-Related Suit Against School District, Student Press Law Center Report, Winter 1999-2000, at 37; Student Suspended For Web Site Wins Free-Speech Lawsuit Against District, Student Press Law Center Report, Fall 2000, at 36; Student Settles Suit Over Web Site Suspension, Student Press Law Center Report, Winter 2000-2001, at 24.

14 See, e.g., Boucher v. School Board of the Sch. Dist. of Greenfield, 134 F.3d 821 (7th Cir. 1998) (holding that advocating an activity against school rules in an underground print paper, coupled with the paper's inadvertent distribution at school, is enough to trigger the "material disruption" standard required by Tinker).

15 Beussink v. Woodland Sch. Dist., 30 F. Supp. 2d 1175 (E.D. Mo. 1998) (granting preliminary injunction against school officials disciplining student for comments made on private Web site); Emmet v. Kent Sch. Dist., 92 F. Supp.2d 1088 (W.D. Wash. 2000) (holding that a student's private Internet speech was entirely outside the school's supervision); Beidler v. North Thurston County Sch. Dist., No. 99-2-00236-6 (Thurston Cty. Super. Ct. July 18, 2000) (unpublished) (finding that student's Web site ridiculing a school administrator did not meet the "material disruption" standard necessary to justify punishment); J.S. v. Bethlehem Area Sch. Dist., 575 A.2d 412 (Pa. Commw. Ct. 2000) (finding that private student Web site depicting teacher's head morphing into an image of Hitler "hindered the educational process" enough to justify expulsion); Killion v. Franklin Regional Sch. Dist., 2001 WL 321581 (W.D. Pa., 2001).