The Internet has revolutionized the way human beings communicate. And students — perhaps more than any other demographic group — have led the charge. Indeed, it is hard to imagine a more exciting time for student journalists. Never before have students had such ready access to exhaustive sources of information or been able to so easily share ideas and interact with a global audience. For those involved in publishing, the Internet has combined the whole writing-publishing-distributing process into one event controlled entirely by the individual. 1
Yet the emergence of the Internet as a powerful publishing and research tool for journalists has also led to a number of legal problems, both real and imagined. Deservedly and not, "old" legal questions have found new life on the Internet. Adding to the confusion for student reporters and editors (and their advisers) is the fact that they often find themselves immersed in more complex legal predicaments than the rest of the world because of the added challenge of balancing concerns of school administrators with education and the free flow of ideas.
Many schools have only reluctantly bowed to the increasing pressure to provide students with access to the Internet for purposes of publishing and research. Administrators at these schools often see the Internet as entirely different from other forms of student expressive activity. They have abandoned policies and practices they have used in past student media disputes and frequently invented new — sometimes baffling — justifications for restricting its use. Students argue that it is not the complex nature of the technology that is causing problems; it is the confusion and misconceptions surrounding it.
One thing one will hear from virtually every authority on cyberspace law is that the subject is "fluid." Technology may be making leaps and bounds, but the law moves at a steady crawl.
In this, the first of our updated two-part series on some of the legal issues facing online student media, we explore the Internet's role as a publishing medium and research tool. The following is a list of Internet publishing questions frequently asked of the Student Press Law Center's legal staff by student journalists and their advisers. While some of the law is reasonably settled, other answers represent only our best guess as to where the law is headed. In any event, getting a sense of the legal rules or even making note of what questions to ask will help guide you in these new and sometimes uncharted times.
For as long as student publications have existed, students and administrators have clashed over student press freedom. Online student media, with its vast potential audience, have only fanned the flames. Because the degree of legal protection available to students will often depend on the level and type of school they attend, the discussion is divided accordingly, below. In addition, the legal protections available to students working on independent Web sites while outside of school are also discussed.
Q. Do school officials automatically have more control over online student media than printed media?
A. No. Different First Amendment protections have historically applied depending on which category the medium falls into; broadcasters do not get the same high level of protection as the print media, for example. But the Supreme Court has said that online media more closely resembles the print media than broadcast. 2 This means the same protections that apply to print newspapers should apply to online publications or home pages. The Court stated that personal home pages are "the equivalent of individualized newsletters about that person or organization" and should be treated as such.3 Because the Court chose to compare the Internet to print, a student Web site or online publication should be viewed as just another method of getting already protected expression to its intended audience.
Q. What is the effect of the Supreme Court's Hazelwood decision on online student media at a public high school?
A. Since the Supreme Court's 1988 ruling in Hazelwood School District v. Kuhlmeier,4 many public high school administrators have had substantial — though not unlimited — leeway in controlling school-sponsored student media. Where applicable, Hazelwood allows school officials to restrict student speech provided they have a "valid educational purpose."5
However, where a public high school has established a "policy or practice" of allowing a publication to operate as a "public forum" where students express themselves freely, the administration's ability to censor student speech is more limited. 6 In other words, while a school is not required to designate a student news medium as a public forum, once it does, it cannot restrict speech without a compelling reason.7 Courts have indicated that a compelling reason arises only where the expression causes a "material and substantial" disruption of school activities, is an invasion of the rights of others, or the expression is otherwise unprotected by the First Amendment.8 (Libelous or obscene material would be good examples.)
There is no reason that the same rules would not apply to the online context. Computers and other facilities used to post student publications or Web sites are generally the property of the school. The amount of legal protection available to online journalists will therefore largely turn on whether the online publication is designated, through school policy and other factors, as a forum for free expression.
Even where the publication itself has not been declared a public forum, a certain area of an online publication, such as a chat room or a bulletin board system, might qualify as a public forum if the school has designated it as such. 9 Also, chat and bulletin board systems are often owned by third-party companies who offer the service for free in exchange for the right to place advertisements on the pages, suggesting that those pages might not be the property or under the control of the school at all. High school student media seeking an alternative to putting their publication on a school's computer system are encouraged to check out the free Web hosting services for student newspapers offered by the American Society of Newspaper Editors.10
Understanding the scope of the Hazelwood decision can get tricky. For more information, please consult the SPLC's Hazelwood Guide.
Q. How can I tell if my online newspaper is an open forum?
A. A publication, online or otherwise, is a public forum when students are given, with limited exceptions, the right to control content. If the school has established a "policy or practice" of allowing free expression by allowing student editors to control the content of the online edition, the forum is open and students continue to have editorial control. 11
Alternatively, if an online edition has not yet been established, the answer will depend on whether the school allows the publication to be designated as a public forum.
The Hazelwood Court listed several factors for determining the status of a publication forum where there is no clear school policy that could be analogized to the online context. Examples are (1) whether the networks are provided and paid for by the school, (2) whether the online activity is part of a class assignment where students receive academic credit for their work, and (3) whether the administration has reserved the right to choose the students' article topics or otherwise regulate the content of the Web site.12 If the answer to all of these questions is "yes," your school can probably argue that your online paper is a closed forum, thus reserving significant editorial control.
Q. What is an Acceptable Use Policy? What is its significance?
A. An Acceptable Use Policy (AUP) or Internet Use Policy, often found in a student handbook or in district guidelines, sets out the rules and regulations governing student (and sometimes faculty) use of school computer networks. Looking at such a policy might help you to determine whether the network has been designated a public forum. If the policy language is cautionary, referring to access as a "privilege," and includes stringent restrictions regarding the type of communication permitted, the facilities will more likely be viewed as a non-public forum where the school has reserved the right to control the content. 13 If the policy refers to student access as a "right," on the other hand, or if students have been permitted reasonably free access to the system, schools will have a more difficult time justifying acts of censorship.
The Virginia Department of Education, Division of Technology, has a Web site including various examples — some quite restrictive, others more free-speech friendly — of high school AUPs. 14 The SPLC Model Guidelines also make a reference to student online media and can provide a useful reference point.15
Q. Can school officials use an Acceptable Use Policy to prohibit the posting of a student editorial simply because they disagree with it?
A. No. A school's AUP — just like any school policy — must be in compliance with state and federal laws. 16 Courts have indicated that online expression should receive the same protection as print, and traditional rules regarding print publications dictate that "viewpoint discrimination" is not allowed.17 When school administrators "pick sides," and target one particular viewpoint with restrictions, (especially if they leave a counter viewpoint alone), they may be engaging in unlawful viewpoint discrimination. It is a specific type of censorship — a subset of the general category of content discrimination — where the First Amendment violation is all the more blatant.18
Likewise, a state law or constitution may offer additional protections. For example, California state law offers broad protection of student expression across a variety of media, presumably including online media. 19 Any Internet use policy adopted by a California school would have to comply with that law or risk being struck down in court. Six other states have similar laws.20
While high school officials may have significant leeway in regulating some online student speech, their authority is by no means unlimited.
Q. Our school was just connected to the Internet and my principal wants us to publish an online version of our student newspaper but has demanded that we first remove all "controversial stories." What can we do?
A. Since you are just starting out, it may be difficult for you to argue that the school's computer server has been designated as an open forum for student expression. Assuming that school officials can articulate a reasonable educational justification for their censorship (which is no sure thing), and that their regulations are viewpoint neutral, school officials will probably have considerable leeway in deciding what they will allow on that server until a policy or common practice has been established. In such case, you have four options: First, you can agree to the principal's terms. Second, you can attempt to "negotiate" with school officials and try to persuade them of the importance of editorial independence. Perhaps you can agree on a compromise position. Third, you can refuse to post your newspaper online. School officials probably cannot require you to contribute articles to or have your name associated with a publication with which you disagree. 21 A student might also be able to claim copyright infringement if a school uses his work without permission.22 Finally, you can create your own independent Web site. School officials have no authority to prevent your creating a private Web site outside of school on your own time, using your own resources. Moreover, as long as the content on the Web site is lawful, the ability of public school officials to punish students for content posted to a private Web site is extremely limited. Certainly, school officials cannot prohibit the publication of a story on an independent Web site merely because they find it "controversial" or "offensive." Much more information on this topic is available in the SPLC's CyberGuide.23
In a 1972 decision, the Supreme Court articulated what has become the general rule regarding censorship of the public college press: the First Amendment applies with "[no] less force on college campuses than in the community at large." 24 In the more than three decades that have followed, lower courts have consistently held that public college and university officials must exercise a "hands-off" approach when it comes to the editorial decisions of their student media.25 But because computer facilities used on college campuses are generally the property of the school, some of the public forum doctrine principles discussed above may be applicable.26 According to the doctrine, once a university has handed over editorial control of a Web site or online publication, the forum has become public, and the school may not later restrict such use without a compelling interest.27 This applies to all college student media, including online newspapers or personal Web sites and e-mail.
Q. Can public college officials require a "sanitized" version of the newspaper for the Web?
A. No. As with public high school media, discussed above, college officials cannot require the posting of a public relations-friendly version of the student newspaper. Modification of specific articles or the newspaper's content as a whole without the consent of the author(s) would be a violation of copyright law. 28 Moreover, once they have provided the student media with Web space, their ability to censor material is extremely limited.29
Q. Can public college officials ban advertising on student publications housed on the school's ".edu" server?
A. There is no legal rule prohibiting advertisements on ".edu" sites.
An Internet address can be analogized to a telephone number, except that it is made up of words and abbreviations. When a user types in a particular domain name or address, the data is translated, and sent to the "root" server. The last part of the domain name, called the top level domain, identifies the type of server being used to house the address owner's account. 30 Top-level domains are divided into groups such as ".edu" (educational), ".com" (commercial) and ".org" (non-profit).
Since 2001, the ".edu" domain has been administered by a non-profit association, EDUCAUSE that assigns names on a first-come, first-serve basis. 31
EDUCAUSE reserves the right to grant or deny ".edu" status, but once it decides to grant that status, it does not engage in further monitoring of the server. In that sense, ".edu's" are self-regulated.
Although there is no legal rule prohibiting advertisements on ".edu's," an Internet Service Provider (ISP) might grant a lower subscription rate if the school (as the subscriber) has promised not to include ads on the school server. To be sure, check the contractual agreement between your school and the ISP. If there is no prohibition in the agreement itself, there should be no legal barrier in allowing ads from the university's standpoint.
Likewise, as long as ads are solicited and published as they are in the print version, a school's tax status should not be affected simply because the ads appear in an online student publication. 32
Moreover, commercial speech is protected by the First Amendment and school officials must demonstrate a "substantial interest" in regulating such speech before a restriction will be allowed. 33 Simply arguing, for example, that ads "look trashy" is insufficient.34 The bottom line: if you could publish the ad in the print edition of your paper, there should be no reason that you cannot include it in the online edition as well.35
Still, many student publications have simply chosen to select and purchase their own domain name and move their online editions to a non-university sponsored server. Both of these options are relatively inexpensive and avoid the hassle of challenging the school-imposed restrictions or complex ISP agreements.
Q. Can administrators stop an online student publication from hosting a comment bulletin board or "chat room" where students can, for example, post comments about course offerings or debate controversial topics?
A. That depends on the reason they give for not wanting a chat room or message board on their server. Many colleges have policies for their student organizations limiting the software packages that can be used on a school-owned Web server; typical justifications given for these limitations are that the security of the server could be compromised by certain types of software, that there is a limited amount of computer space/network bandwidth that must be shared equally among all organizations, or that certain software packages take too much processing power and slow down the school's Web pages for everybody. These justifications would probably be valid as they are content-neutral restrictions analogous to "time, place, and manner" limitations on speech in general.
The easiest way around these sorts of limitations is to have your comment board or chat room hosted on a non-university server and include a link to the other server on your publication's page. It is possible to make this look seamless from the user's end, so your readers will not know that your message boards are not on your school server. More importantly, it avoids technology-based conflicts with the school web server acceptable use policy.
On the other hand, it is possible that your school's administration will say that they do not want a message board or chat room for some reason relating to its content, such as the fear of anonymous defamation, concern that users will disclose confidential educational information, or just thinking that allowing controversial discussion on the college server will make the school "look bad." These restrictions are based on content, which are generally prohibited at the university level.
Q. Can a public school refuse to link to the student newspaper from the school's official Web site?
A. It depends on the reason and on which portions of the Web site have been opened as public fora. Schools will generally have broad authority to do whatever they want with their own content. If, however, they have refused to provide a link to the student paper as "punishment" for the student paper's editorial content, this is probably impermissible. At any rate, remember, the best advertising for your online edition's location is in your print edition.
Q. Can a private school censor online publications or personal Web sites?
A. Students attending private schools do not enjoy First Amendment protection from censorship by school officials. 36 Only government officials — or those acting on their behalf — are subject to the First Amendment's prohibitions on limiting free speech. Many private schools, however, voluntarily grant free expression rights to students through written school policies. Courts have suggested that where a private school adopts a particular policy, whether it is a disciplinary code or an Acceptable Use Policy, it may be contractually bound by it.37 Private school students might also be able to look to their state constitution or statutes for protection. For more information, see the Student Press Law Center's guide, Press Freedom at Private Schools.38
Q. Can school administrators punish a student for material she publishes from her home on an independent (non-school sponsored) Web site?
A. Generally, no. Students, like all citizens, have strong First Amendment protection when it comes to expressing themselves off-campus. 39 Public school officials cannot legally censor or punish a student for posting a personal homepage or weblog, publishing a Web-based "zine" or using a personal account to send e-mail outside of school from a home computer, even if the subject matter of the site is school-related or offensive. However, if the student accesses the Web site at school or urges others to do so, that activity could be treated no differently than any on-campus distribution of an independent publication.40
Because the First Amendment does not bind them, private school officials probably have more leeway in punishing students for their off-campus speech.
For much more information regarding off-campus student Web sites, see the SPLC CyberGuide. 41
Rather than publishing information, the question in access cases focuses on the right to receive information. More specifically, to what extent can administrators restrict student or faculty access to Internet-based material? Again, the answer may depend, in part, on the level (high school/college) and status (public/private) of your school and the discussion is divided accordingly.
Q. To what extent can public high school administrators limit student access to particular Web sites?
A. This remains an open question; as of April 2004, the SPLC was aware of no published court opinions directly addressing this issue. It is likely, however, that high school administrators can constitutionally limit access to at least some sites, due to the presumption that schools can install filtering software on its computers.
The Supreme Court has upheld a law requiring the use of filtering software on library computers. 42 Because both libraries and the Internet are information resources, it seems likely that the Court would view the use of filtering software in schools as permissible.
That school administrators can block access to some Web sites, however, does not mean they can block access to any Web site. While no court has decided on a constitutional standard a school must meet before blocking a Web site, it seems clear that a school could not block a particular site for no reason whatsoever, or simply because the school administrators disagree with the viewpoints expressed on the site. The constitution will not justify, and a court is unlikely to permit, blatant censorship or suppression of newsgathering activities merely because the medium involved is digital rather than physical.
Nor does a school's ability to ban a Web site during school hours mean it automatically has the right to ban a site at all times. A site that might be a distraction in a computer-filled classroom might be perfectly acceptable after school hours in the library. While courts have often upheld content-neutral "time, place, and manner" restrictions on otherwise constitutional speech, an outright ban is more likely to offend the First Amendment.
One possibility is that courts will view the Internet as an information resource similar to a library and look to past library censorship cases for guidance. In Board of Education v. Pico,43 a board of education ordered high school officials to remove books from the school library that the board deemed inappropriate, including books the board claimed were "anti-American, anti-Christian, anti-Semitic, and just plain filthy."44 In Pico, a plurality—but not a majority—of the Supreme Court held that the board had selected books for removal in a "narrowly partisan or political manner" and the board's action was therefore unconstitutional.45
Citing Pico, a federal court in 1998 suggested in dicta that a public library's (not a school library) decision to block access to certain Web sites based on content alone could be viewed as the equivalent of removing particular books from the library shelves. Such content-oriented "removal," the court stated, would probably be unconstitutional.46
However, the court also noted that while overt content-discrimination is not allowed by a public library, sites might be blocked by schools if the substance of the site is not suitable to education, for example, if the site is laden with "pervasive vulgarity." 47 In what appears to be an extension of the Hazelwood analysis to the Internet context, the court in dicta suggested that school officials at the high school level may enjoy broad discretion in what they may block, as long as the rationale for doing is educationally sound and not based on the fact that they disagree with a particular message.
Q. What is filtering software in general, and how does it work?
A. The goal of filtering software is to prevent the user of a computer from accessing sites that are inappropriate as determined by the software's installer. The mechanics of this process, however, make it far from perfect.
Broadly speaking, filtering software monitors Internet communications software (such as Web browsers, newsgroup readers, chat programs, e-mail tools, and instant message applications) for material that matches its list of banned words or sites. When a user attempts to access a banned site, or another computer sends a banned word or combination of words to the filtered computer, the filter stops the information from displaying on the screen. Instead, it will show a page identifying the content as blocked, or a blank page, or sometimes even the same type of generic error as a user sees when entering a page that does not exist.
Typically, two types of filtering techniques are used. First is something filter manufacturers call "content-based" filtering, which looks for banned words in the text portions of a Web site, e-mail or chat conversation. When a forbidden word or phrase appears, the page is blocked. Because this filter does not actually judge a site's content — it cannot tell whether the subject matter of the site is inappropriate, only whether the word is on its list — the term "content-based" is something of a misnomer. In reality, the filtering is merely word-based.
The second type of filtering is known as site-based filtering. In this method, Internet addresses known to have material considered unwelcome are added to a list by the filter's authors. When a request for that machine is entered by the user (by typing in the site's Web address, for example), the filter blocks it. Site-based filtering is much more effective than word-based filtering, both because it does not attempt to make judgments about a site's content from the words it uses and because, to get on the filtered list, a human being must determine that the site should be blocked. The disadvantage of site-based blocking is that it can only block sites that have been reviewed in advance, and new sites will be able to pass through undetected. Additionally, most manufacturers of filtering software keep the list of blocked URLs a secret, meaning the only way to know whether the software will block a site is to install a copy and try it out. 48
While this is how filtering software works in theory, in practice, it only accomplishes its goals about two-thirds of the time. The rest of the time, sites that should be blocked manage to get through and sites that should be available are improperly blocked. 49
Finally, while this is all filtering software must do, many software packages include other "tools" for monitoring how the computer is used. For example, one program logs all instant messages from most popular message software; 50 another quietly sends e-mail updates on the activity of anyone using the computer.51
Q. Are administrators allowed to install filtering software?
A. Yes. In fact, under current law, schools receiving certain discounts on their Internet connections or federal funding for technology are required to install filtering software. 52 Although no court has directly considered the provisions in the law requiring schools to install software, the Supreme Court has recently upheld those parts of the law that mandate Internet filtering in libraries.53 Check your school board's Internet use policy to see whether it restricts your principal's ability to filter Internet access.
One of the confusing aspects of the federal laws that require filtering is that their provisions, while parallel, are not the same. For example, schools that receive discounts on their Internet connections fall under a portion of the law that requires the school to "monitor" the behavior of students using the system 54 and only allows monitors to disable the filters for adults engaged in "lawful" activity.55 Schools that receive federal funding but do not receive discounts on their Internet service are not required to install filters — that is, the law says nothing about monitoring users.56 Additionally, these schools are permitted to disable the filters for anyone, adult or minor, engaged in "lawful" use.57
Q. To what extent may public college administrators limit students' access to particular Web sites?
A. Such restrictions would seem to be permissible only in rare, very specific cases. An Acceptable Use Policy (AUP) prohibiting access to sites that are "obscene," for example, would probably pass constitutional muster; the Supreme Court has ruled that obscenity is not a category of speech protected by the First Amendment. 58 However, broad-reaching policies that are lax in their wording, prohibiting material that is "indecent," "offensive" or "sexual in nature," for example, would almost certainly be unconstitutional. Such a policy reaches beyond obscenity or other forms of "unprotected speech" to prohibit material protected by the First Amendment.59
In one of the few cases to address Internet access on public college computer networks, the Appeals for the Fourth Circuit upheld a state law prohibiting state employees from accessing sites that were "sexually explicit" in nature. 60 The court ruled against profed the law was overbroad in that it prohibited access to vast studies in the health sciences, not to mention thousands of masterpieces of art and poetry.61
Thirty years ago, the Internet was little more than a crude concept, a nebulous idea in the minds of industry pioneers. Most developers thought it would be used primarily by the military; a few thought it might become a common accessory in business offices. Almost no one predicted that it would become a household term.
But as with the advent of television, the telephone, or other formerly "new" media, there are skeptics; those self-professed, well-intentioned folks who fear change and attempt to stymie the growth of the new medium through restrictions. As the history of communications technology tells us, though the real hazard does not come from irresponsible use or exploitation of the invention. In the case of the Internet, it does not come from "monopolistic corporations — or from digital pirates hijacking intellectual property." 62 Rather, it comes from public officials "who try to protect outdated, incumbent technologies."63
Even the Supreme Court has indicated that the Internet should be viewed, at least legally, as simply another means to get a message to an intended audience. While the apparatus is certainly quite revolutionary, its function is not; the age-old practice of storytelling is no less valuable just because there is greater access to the underlying information.