It should first be noted that all student speech, whether on or off campus, is subject to criminal and civil laws regarding pornography, threats, defamation, etc. This section addresses the authority of schools to regulate off-campus electronic speech--including student-produced web sites, e-mails, postings, etc.

For excellent introductions to the subject of student web sites and free speech, read this article published in 2000 by the Benton Foundation, this article published in 2000 by the Freedom Forum or this lengthy article published in 2004 by the Student Press Law Center. A brief article from the National Scholastic Press Association was also published in 2004. The Electronic Frontier Foundation (EFF) has posted an excellent Frequently Asked Questions (FAQ) for student bloggers.

An informative summary of student web site cases can be found at the web site of the Mansfield, Tanick & Cohen law firm, a firm specializing in, among other things, education law and constitutional law. A Law Review article written in 2000 also provides a good discussion of the relevant legal issues.

For those with even more time and interest in the subject, we recommend this extensive article published in 2001 by Professor Calvert of Penn State University.

Private Schools

As described here , students in private schools have no federally guaranteed free speech rights, only rights provided by state constitution/law or rights arising due to the contractual relationship between the school and the student's family (as stated in the student handbook, etc.).

In April 1999, just days after the Columbine tragedy, a student was expelled from a private high school in New York for a home web site that his school objected to. He sued for 1 million dollars, claiming the expulsion violated his constitutional right to free speech. In July 2000, the lawsuit was thrown out of court--the federal district court concluded that, although private schools are regulated by and may receive funds from the state, "such regulation and funding does not transform the acts of these institutions into acts of the state".

This humorous web site parodying Phillips Academy, a private school in Andover, Mass., was published in 1999. We don't know if the student publisher(s) were punished or reprimanded, but school administrators probably weren't amused.

In January 2003, this private school student posted a message indicating that he faced expulsion not for what he wrote, but for what others wrote and posted on a bulletin board on his on-campus web site--clearly an inappropriate reaction by school administrators who didn't understand that simply providing a forum for the free speech of others is not a crime. Given the on-campus nature of the activity, however, the private school has the legal (but not moral) authority to be as arbitrary and unfair as it wants.

Students attending private schools should refer to documents such as student handbooks or request their school's written policy regarding off-campus web sites and speech. At Phillips Exeter Academy, the student handbook (on-line here) states that "when at home, day students are under the supervision of their parents." Similarly, the Lawrence Academy student handbook states that "when their school obligations are finished and they have left the campus, day students are under the jurisdiction of their parents." It should follow that these day students would be free from school discipline (but obviously not parental discipline) for speech originating in their homes and not brought on campus by them. What is less clear is whether a private school would have any jurisdiction over the actions of boarding students that have gone home for the weekend (we believe they would not).

Public Schools--Off-Campus Web Sites

Case law has been fairly consistent in determining that students attending public schools do enjoy First Amendment protection for off-campus speech, provided that speech is not brought on-campus by the student who created it and does not cause a "substantial disruption" of school activities.

In 1995, one of the first cases involving the off-campus web site of a public school student came to light after a Bellevue, Washington school disciplined high school senior Paul Kim for creating a home web site that included links to material of a sexual nature. The ACLU intervened, and a settlement was ultimately reached, but irreversible harm may have been done when the vice principal faxed letters rescinding the school's recommendation to each and every one of the colleges to which Mr. Kim had applied. The ACLU press release includes a copy of the school district apology to Mr. Kim.

In February 1998, high school junior Brandon Beussink was suspended for creating a home web page that criticized his school. The ACLU filed a lawsuit on his behalf , and in December 1998 a federal judge issued a preliminary injunction barring the Woodland, Missouri school district from punishing him or restricting his ability to post his home page.

In April 1998, 17-year-old Sean O'Brien was suspended by his Ohio high school for calling his band teacher "an overweight middle-aged man who doesn't like to get haircuts" on his home web site. A federal judge found that the school had overstepped its authority in punishing the student, and the district settled for $30,000.

In the spring of 1998, Aaron Smith, an eighth grader in McKinney, Texas, created a home web site called the "Chihuahua Haters of the World", or CHOW, that included tongue-in-cheek suggestions on how Chihuahuas could be killed (in the same vein as the black humor classic "100 Things to Do With a Dead Cat"). After a Chihuahua breeder complained to the Superintendent, Aaron was ordered to take the site down. He refused, and was then disciplined with a one-day suspension and removal from his Emerging Technology (Computer) class. School officials accused Aaron of creating an "animal hate group" and said he had violated the school's Internet Acceptable Use policy. After the ACLU intervened, the school backed down. Aaron was later awarded $10,000 by the Freedom Forum.

Also in 1998, a Bethlehem, Pennsylvania 8th grader was suspended for creating a particularly offensive home web site insulting a teacher.  Although the web site was created off campus and did not actually constitute a "true threat", the Pa. Supreme Court held in September 2002 that it was on-campus speech since the student had accessed it at school--"...where speech...is brought onto the school campus or accessed at school by its originator, the speech will be considered on-campus speech". Furthermore, the court found that a "substantial disruption" had occurred since the teacher suffered both physically and emotionally.  There is a widespread view that this case was decided incorrectly (Prof. Calvert, for example, calls it "an incredibly problematic conclusion" on page 249 of his article.) 

In 1999, Washington state high school junior Karl Beidler was suspended for an off-campus web site that lampooned his high school principal. A lawsuit aided by the ACLU went to court, and ultimately resulted in a $62,000 award to Beidler.

In early 2000, high school senior Nick Emmett was to be suspended for creating a home web site that contained fake obituaries of fellow students, written upon their request--the school deemed this a threat to student safety. Nick and his parents contested the suspension in federal court--a judge stopped the suspension, and weeks later a settlement was reached in which the school agreed not to punish Nick and to pay his attorney fees.

In May 2000, 15-year old Justin Redman was expelled from his Arkansas school for creating a home web site that contained objectionable material. The ACLU filed a federal lawsuit in June 2000, and in August 2000 a settlement was reached that allowed Justin to enter the 10th grade, rather than repeat 9th grade as he would have been required to do as a result of his punishment. Details of the settlement were kept confidential.

In 2000, a Utah high school student actually served seven days in jail after local authorites charged him with criminal activity for insulting his school principal and teachers on his home web site. Criminal charges for defamation were finally dropped in January 2003.

In 2001, 15-year old Ohio 8th grader Jonathan Coy filed a federal lawsuit after he was charged with bullying and expelled from school for a home web site he created with several friends. School officials punished him after he accessed his website in the school's computer lab, arguing that it was on-campus speech.  In April 2002, a federal judge held that even if the school can prove that the student accessed his website at school, the district must still meet the Tinker standard for substantial disruption in school.

In late 2001, school officials ordered a New Hampshire 8th grader to take his home web site offline as it allegedly "invaded privacy and threatened student safety". The site contained a password-protected directory of "public domain" information (names, addresses, phone numbers and photos of his classmates) obtained from documents previously published and distributed by the school.

In early 2002, a Montana high school senior was suspended and forced to transfer to another school as punishment for posting photos of the "ten hottest freshman girls" on his home web site. In May 2002, a state district court refused to overturn the school board's decision to move the student to a new school, and in June 2002 the student decided to drop his lawsuit against the school. One complicating factor for the student was that the pictures had been taken at school.

In the spring of 2002, an 18-year old Minneapolis high school senior and three friends were suspended for three days for "disrespect and verbal abuse" after they created a home web site critical of the school--SouthHighSucks.com. The student was suspended for a second time and transferred to another school after he refused to take down the site, added a blurb about the punishment and included a link to the First Amendment. 

In November 2002, a Federal judge ruled that a Waterford, Michigan school had overstepped its authority when it expelled a student for violent remarks made on a web site entitled "Satan's Web Page". The court found that the web site posed no real threat and did not disrupt school activities.

In January 2003, an Oregon student filed a lawsuit (with ACLU assistance) against his former school district because they had punished him for a home web site created two years earlier.  An amended complaint was filed in February 2003 and the case was ultimately settled in August 2003.

In September 2003, Nevada high school senior Wesley Juhl was disciplined for a comment made about another student in his on-line diary (blog).

Also in September 2003, a Florida high school student made on-line threats against another student in an off-campus blog, but the school decided not to punish the student, recognizing that it did not have juridiction over student off-campus activities.  However, the school is now looking at revising its code of conduct, extending it to cover off-campus threats (an inappropriate move--police should be contacted in the event of true off-campus threats.)

In November 2003, two Georgia high school seniors and their fathers filed a lawsuit after the students were suspended for comments regarding a teacher posted on an off-campus web site.  A settlement was reached in 2004 in which the school agreed to clear the students' records and pay them $95,000.

In December 2003, a federal lawsuit was filed (with ACLU assistance) on behalf of Ryan Dwyer, a New Jersey 8th grader punished in April/May 2003 for creating an off-campus web site critical of his middle school that included  a guest book page  where visitors could add comments.  The school claimed the guest book included anti-Semitic remarks, yet punished Ryan more severely than the students who made the remarks. A federal judge issued a ruling in Ryan's favor in March 2005, and a settlement was announced in November 2005. The settlement for $117,500 in damages and attorney's fees is perhaps the largest to date for this type of student free speech case.

In January 2004, a Mississippi high school junior served three days of in-school suspension for writing in her off-campus blog that a teacher was "perverted".

In early 2004, Ohio high school junior Thomas Seifert was to be expelled for an off-campus web site that  skewered his school and its staff.  In May, the ACLU contacted the superintendent to ask that all punishment be rescinded, noting that the school district had no legal authority to punish the student for exercising his free speech rights outside of school. The school board voted later in May to allow the student to return to school, after he had been kept away for nearly two months.

In August 2004, Arkansas high school students Justin Neal and Ryan Kuhl were suspended for three days for comments and comics posted on their home web sites.  Following an appeal, a magistrate initially ruled against the students, but in February 2005 a Federal district judge decided that the students' First Amendment rights had been violated.

In March 2005, Rhode Island high school sophomore Eliazar Velasquez was suspended after he took photos of his principal smoking by the door of his school, in direct violation of state law, posted the photos on his personal web site, and passed out fliers in school telling students where to find the photos.  After the ACLU intervened, punishment was dropped, all mention of the suspension was removed from Eliazar's record, and the principal apologized over the intercom for smoking on school grounds.

In January 2006, Pennsylvania high school senior Justin Layshock was suspended, sent to an alternative program and prevented from attending his graduation ceremony for parodying his principal on an Internet site outside of school (MySpace.com). The ACLU filed suit on Justin's behalf, and a Federal court ruled in July 2007 that the school had violated Justin's First Amendment rights.

In April 2007, an Indiana high school senior was suspended simply for making a computer map of his school. Police came to his house, searched his bedroom and seized a hammer (which he used to fix his bed).

Other Off-Campus Internet Activity

In addition to home web sites, other situations have arisen where students have been punished for home computer use of various types:

In 1999, a Missouri honors student was suspended for a remark made in an Internet chat room while at home. 

In late 1999, three students who ran a home web site that included a chat room were to be punished by their school after someone posted a death threat in the chat room (it turned out to be an Arizona college student). The local school board ultimately decided not to punish the students after the ACLU intervened, pointing out that the students were merely "providing a forum for free speech by others" and that holding them responsible would be "like going after the phone company for a threat made over the telephone."

In a strikingly similar case that also took place in late 1999, a Maryland student who created a message board on his home computer was expelled after other students used the board to post death threats to another student as well as obscene comments to each other. His appeal to the State Board of Education was denied, in part because he was present when his friend posted some of the death threats and in part because he posted a hand making obscene gestures when he took down the message board. All of the activity occurred outside of school--the police did not press charges (suggesting that the death threats were not true threats), but the question remains whether the off-campus activity rose to the threshold required by the Tinker "substantial disruption" standard. It appears that a lawsuit was never filed in federal court.

In February 2001 a Pennsylvania high school senior was punished for criticizing a teacher in a message he posted from home on an Internet bulletin board. His punishment--being kicked off the volleyball team and loss of all computer and after school "privileges". He also filed suit--in a partial settlement reached in late 2002 , he was awarded $60,000. In February, 2003, a Federal judge ruled that School District policies that allow the punishment of students who post Internet messages, from their home computers, that offend some people but do not cause substantial disruption in the school, are unconstitutional. The opinion of the court is on-line here. 

Killion v. Franklin Reg. Sch. Dist. is the 2001 federal court case involving Pennsylvania high school junior Zacharia Paul, suspended for an e-mail, written from home, that ridiculed his school's athletic director. Another (unknown) student distributed the e-mail at school where it was eventually seen by administrators who then took action. While the speech, if made in school, could have resulted in punishment due to its lewd content, the court found that the student who wrote the e-mail could not be punished for his speech originating outside of school (which has First Amendment protections) and brought into the school by someone else.

In 2001, a New Mexico eighth grader was suspended for creating an off-campus message board where students posted the names of other students they hated after a printout of the board was brought to school by another student.  Although the school acted improperly, no lawsuit was filed since the parents were afraid of the effect this might have on the school district's treatment of their other children.

In  2004 , in a particularly egregious multiple violation of the First Amendment rights of Todd Graham, the editor of a student newspaper in Salem, Massachusetts, the student was expelled for comments made in an off-campus web posting that were critical of the school administration for imposing prior review of (i.e. censoring)  the school's  newspaper.

And high schools aren't the only ones trying to censor their students' expression. In 2006, four Syracuse University students were put on probation for using vulgar language to deride a teaching assistant on Facebook. Although it is unknown whether the students were off-campus at the time, they used their university e-mail accounts to post the comments.

In February 2006, Colorado high school junior Bryan Lopez was suspended for posting comments critical of his school on MySpace.com. After the ACLU threatened to sue,  school officials agreed to readmit the teen. 

In October 2007, several Indiana students were punished for comments critical of their high school's handling of the suspension of another student, including referring to an administrator as an "ass". The  comments were all made outside of school, also in Facebook.

Summary

The following factors are important in determining whether a school may punish a student for off-campus electronic speech:

• The type of school--private vs. public (see above). Free speech protections apply to students at public schools, but this is not always true for private school students. For example, a New Jersey Catholic school announced in 2005 that all students would have to dismantle any personal pages or blogs or face punishment.  This draconian restriction of student expression would be illegal in any public school. 

• Who actually created the speech? (see above--the Arizona college student, not the chat room hosts).

• The place where the speech originated--different standards apply in school and outside of school.

• The way in which the speech came to be at the school is very important--did the student who created the speech personally send it via e-mail to someone on school grounds or otherwise bring it into the school himself, or did someone else? Did the student access or download his off-campus speech while at school? In Killion (above), the student who created the speech off-campus did not bring the speech into the school and so was not held culpable by the court. In J.S. v. Bethlehem Area School District, however, the court found that the speech was indeed on-campus speech since the student accessed his web site at school and showed it to another student. On the other hand, in Beidler v. North Thurston School District, the court found that the student's speech was not on-campus speech as his on-campus activities with respect to the website were minimal, consisting only of discussing with other students what information he should put on the website and telling others of its existence. In US District Court v. Brown Raysman, the court held that the student could be punished for accessing his home web site at school per the school acceptable use policy, but could not be punished for the content of the site. It is unclear whether the SouthHighSucks.com website would have been considered on-campus speech by a court--one of the students had posted handwritten advertisements for the site around the school (this case never went to court.) Students considering off-campus websites should be careful to minimize in-school activities relative to their websites. Once an off-campus website can be considered on-campus speech, its free speech protections seem to be limited to speech of a political nature (in much the same way as an underground newspaper brought on campus).

• The content of the speech and whether it actually caused a "material and substantial disruption" as originally established by Tinker. This disruption does not include unreasonable overreaction on the part of school officials (the so-called "heckler's veto").

• An off-campus web site would not need to have a disclaimer, but it would be wise to include one to address any claim that the student web site could be confused with an official school web site.

• A student's off-campus website can link freely to any other site, including the official school site.  This linking is sometimes considered by the uninformed to be an infringement, but that view is absurd--it is no more of an infringement than giving someone a phone number or an address in that it simply facilitates future visits to the school's website. 

"School officials may not judge a student's behavior while he is in his home with his family nor does it seem to this court that they should have jurisdiction over his acts on a public street corner."--Sullivan v. Houston Independent School District--307 F. Supp. 1328 (S.D. Tex. 1969).

"It is as if a school principal were living in each student's home, monitoring personal Web pages and doling out punishment..."--Prof. Clay Calvert, in Off-Campus Speech, On-Campus Punishment.

Last updated December 2007

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