Students' off-campus Web publications out of schools' reach, two courts affirm

In separate victories for students’ free expression on personal Web sites, judges ruled in two recent cases that school officials acted in violation of students’ First Amendment rights when they punished the students for off-campus Web sites they created that were critical of their schools.

In Arkansas, Greenwood High School students Ryan Kuhl and Justin Neal were suspended in August 2004 for their Web sites containing violent illustrations and comments criticizing the school. Kuhl’s Web journal, “Fuck Greenwood” called the recent student orientation “dreadfully boring.” Neal’s Web site contained a comic strip with an unnamed school official shooting students at an assembly. School administrators, upon viewing the sites, claimed they caused a disruption at the school and ordered the students to take down the sites. Kuhl and Neal sued their principal, Jerry Efurd, on the claim that their First Amendment rights had been violate

In February, Judge Jimm Hendren ruled that the students’ First Amendment rights had been violated and further ruled that Greenwood school officials could not control the sites’ content, under the standard established in the 1969 Tinker v. Des Moines Independent Community District ruling.

In Tinker, the Supreme Court ruled that school officials could only regulate speech that would “substantially disrupt school operations or interfere with the rights of others.”

Candace Perkins Bowen, board member of the Journalism Education Association, member of the Advisory Council to the Student Press Law Center, and executive director of the Journalism Association of Ohio Schools, said that because Kuhl’s and Neal’s Web sites were created off-campus, school officials would not have had a legal claim to control their content. Bowen added that courts have consistently ruled that students’ off-campus speech is protected.

Adam Goldstein, the New Media legal fellow at the Student Press Law Center, said that while the Tinker standard was applied correctly to Kuhl’s and Neal’s Web sites, other similar court rulings have not addressed the larger issue that schools do not legally have authority over students’ off-campus activities, because when students are away from school they are private citizens. Goldstein said students can only be punished by school administrators if their activity crosses over onto school grounds. For example, he said, a student who produces a personal Web site while on campus could be legally punished by the school. Goldstein cited a 1972 court ruling out of Texas, Shanley v. Northeast Independent School District, that determined that a school’s punishment of students for off-campus activities infringed on their First Amendment rights. In that case, five high school students were suspended after school officials claimed that they violated school board policy against distribution of printed materials when they distributed a newspaper on campus, outside of school hours, that they had produced off campus.

“It should come as a shock to the parents of five high school seniors that their elected school board had assumed [control] over their children before and after school, off school grounds, and with regard to their children’s rights [of] expressing their thoughts,” the court wrote. “We trust that it will come as no shock to the school board that their assumption of authority is an unconstitutional usurption of the First Amendment.”

“The question is, is this [off-campus] activity punishable by a school?” Goldstein said. “Why should schools get involved with what students do at home?”

Neal said the experience taught him that people needed to have room to express themselves “strongly and nonconventionally.” Chip Sexton, the students’ attorney, said the ruling reaffirmed students’ First Amendment rights.

Calls to Efurd and Greenwood Schools superintendent Kay Johnson were not returned.

In 2003, Ryan Dwyer, then a student of Maple Place Middle School in New Jersey, was suspended from school for a week, removed from the baseball team for a month and banned from a class trip to Philadelphia after his principal discovered Dwyer’s “Anti-Maple Place” Web site. Dwyer’s Web site, which was online from April 4 to April 7, contained Dwyer’s opinions about administrators and the school. The site featured a picture of Dwyer’s principal, John Amato, with his head flipped upside down and included statements such as, “The worst teacher is Mrs. Hirshfield because she has a short temper.”

The site also included a guestbook page for visitors to post comments, but could not contain profanity and threats, Dwyer warned in writing. Out of the 10 comments posted, six contained “swear words” and each criticized the administration or the school. One visitor wrote, “We’ll get [Maple Place Middle School] the last day of school” but later wrote in a subsequent post that they were “only kidding,” noting Dwyer’s warning against threats. School officials punished Dwyer after viewing and objecting to the visitor’s comments. After letters from Dwyer and his parents to the Oceanport School District yielded no changes to his punishment, Dwyer sued the district.

According to court documents, Dwyer claimed his punishment violated his First and 14th Amendment rights. In contrast, the school officials claimed that Dwyer’s Web site caused a teacher to feel threatened and fearful, and that the Web site led school administrators to “forecast substantial disruption of or material interference with school activities.”

Judge Stanley Chesler ruled in favor of Dwyer in March, writing that since Dwyer was not the author of the posted comments he could not constitutionally be punished for the postings.

In his ruling, Chesler cited a provision of the federal Communications Decency Act, which says: “No provider or user of an interactive computer service shall be treated as publisher or speaker of any information provided by another information content provider.”

“The Court concludes that Ryan, as a publisher of a Web site that functioned as a forum for other individuals to post comments on the Internet, and as a user of an electronic host and Internet Service Provider, cannot be ‘treated as the publisher or speaker of any information provided’ by anyone, other than himself, who posted material on his Web site,” the judge ruled. Chesler also said Dwyer’s site had not created a disruption at the school and did not contain threats.

Grayson Barber, Dwyer’s attorney, said the Communications Decency Act was central to Dwyer’s case.

“Congress enacted the Communications Decency Act for the purpose of making sure that the internet would be a vibrant and effective environment for publishing,” Barber said, adding that she hopes the ruling will teach other school districts that “you can’t punish one person for the conduct and words of another person.”

Dwyer said he was very pleased with the ruling, which he called a “relief.” Dwyer, a freshman at a local high school, added that he may create more Web sites in the future, but not about his school.

Calls to the district attorney, Howard Nirenberg, were not returned.

Clay Calvert, the co-director of the Pennsylvania First Amendment Center, said the ruling could go a long way in protecting students’ free expression rights.

“This decision could have larger implications and ramifications for student-created sites,” Calvert said. “It seems like as long as the student creator of the off-campus Web site [posts a warning of no profanity or threats] like Ryan Dwyer did, and otherwise doesn’t intermeddle in the content, then he or she is going to be protected.”

CASES: Neal, et al. v. Efurd, No. 04-2195 slip op. (W.D. Ark. Feb 18, 2005).
Dwyer v. Oceanport Sch. Dist., et al., No. 03-6005, slip op. (D. N.J. Mar. 31, 2005).

reports, Spring 2005