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Vol. XIX, No. 3 - Page 24
Cyberlaw and the Student Media - Part 1
© 1998 Student Press Law Center
The past few years have marked the explosive growth of what has been
dubbed "cyberspace." 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. And 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. Not unexpectedly, "old" legal questions have found new life
on the Internet. Moreover, because of the inherent uniqueness of the Internet,
such legal questions cannot always be easily compared to those that have
arisen in print or other "traditional" media.
Adding to the confusion for student journalists is the fact that schools
often find themselves immersed in more complex legal predicaments than
the rest of the world because of the added challenge of balancing administrative
concerns with education and the free flow of ideas.
Despite the unanswered questions, schools are feeling increasing pressure
to provide students with access to the Internet for purposes of publishing
and research. Many school officials unfortunately view the emergence of
the Internet as a new problem to be handled on a different level, and as
a result, abandon protocol they have used in past First Amendment disputes.
The confusion leads to outright censorship of student expression. Where
administrators tend to view the Internet as somehow "different" from other
media, it becomes easier to restrict it. 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 you 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 a 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. 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 unchartered times.
CENSORSHIP
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, has 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.
Public High Schools
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 suggested 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," allowing students to 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 an open 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. Understanding the scope
of the Hazelwood decision can get tricky. For more information,
you should read the SPLC's Hazelwood guide, available from the SPLC, or
online at: www.splc.org/resources/high.school/hsindex.html.
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.9
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 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.10
If the answer to 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.11 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 examples of high school AUP's.12
The SPLC Model Guidelines also make a reference to student online media.13
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 AUPjust like any school policymust be in compliance with state and federal laws. Courts have suggested that online expression should receive the same protection as print, and traditional rules regarding print publications dictate that "viewpoint discrimination" is not allowed.14 When school administrators "pick sides," and target one particular viewpoint with restrictions, (especially if they leave a counter viewpoint alone), they are engaging in viewpoint discrimination. It is a specific type of censorship a subset of the general category of content discriminationwhere the First Amendment violation is all the more blatant.15
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.16 Any Internet Use Policy adopted by a California school would have to comply with that law or risk being struck down in court. Five other states have similar laws.17
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 three 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. Finally, you can refuse to post
your newspaper online. School officials cannot require you to contribute
articles to or have your name associated with a publication with which
you disagree.18 A student
might also be able to claim copyright infringement if a school uses his
work without permission.
Public Colleges
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."19
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.20
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.21
It should be noted as well that most courts favor a strong presumption
toward openness at the college level.22
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 relationsfriendly version of the
student newspaper. Moreover, once they have provided the student media
with Web space, their ability to censor material is extremely limited.23
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.24
Top level domains are divided into groups such as ".edu" (educational),
".com" (commercial) and ".org" (non-profit). A domain name, including the
top level domain, is requested by the user and assigned by a private organization
called Network Solutions Inc. (NSI) on a first-come, first-served basis.
There are no legal penalties for a non-profit organization using a ".com,"
or a university using an ".org," for example. NSI does reserve the right
to grant or deny ".edu" status, but the only requirement is that the applying
institution be a four-year university. Once NSI decides to grant ".edu"
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.25
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.26 Simply arguing, for example, that ads "look trashy" is insufficient.27 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.28
Still, many student publications have simply chosen to move their online
editions to a non-university sponsored server, thus avoiding 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 "chatroom" where students can, for example, post comments about course offerings or debate controversial topics?
A. No. Such a prohibition would constitute a restriction based on content,
which is not allowed at the university level unless there is a "compelling"
reason.
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. The answer depends 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.
Private Schools
Q. Can a private school censor online publications or personal Web sites?
A. Private entities, including private schools, do not enjoy First Amendment
protection from censorship by school officials.29
Only those acting on behalf of the government are prohibited from denying
First Amendment rights. 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 be a disciplinary code or an Acceptable Use Policy, it may be
contractually bound by it.30
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 packet, Press Freedom at Private Schools, available from the
SPLC or online at: http://www.splc.org/resources/private.school/private.html.
Independent/off-campus Web sites and online media
Q. Can school administrators punish a student for material she publishes from her house 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.31 Public school officials cannot legally censor or punish a student for posting a personal homepage, 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.
Because they are not bound by the First Amendment, private school officials probably have more leeway in punishing students or censoring their student's off-campus speech.
For more information regarding off-campus student speech, see the SPLC
legal analysis article "The other side of the schoolhouse gate,"32
available from the SPLC or online at: http://www.splc.org/report/f97report/f97p20.html.
STUDENT ACCESS TO ONLINE INFORMATION
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 nature and level
of your school and the discussion is divided accordingly.
Public High Schools
Q. To what extent can public high school administrators limit student access to particular Web sites?
A. Again, the public forum status of the school's computer network would seem to be a primary factor in determining the amount of control schools may exercise in controlling access. If there is a policy or practice of allowing unrestricted access to the Internet at school, administrators will have a much more difficult time arguing that restrictions should be imposed in a particular case. Even where they are allowed, any restrictions would have to be "viewpoint neutral."
Understanding the role of the Internet as an information resource, courts have also looked to past library censorship cases for guidance. In Board of Education v. Pico,33 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."34 The Supreme Court in Pico held that the board's removal of the books based solely on content was unconstitutional.35
Citing Pico, a federal court in April suggested in dicta that a public library's 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.36
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."37
In what appears to be an extension of the Hazelwood analysis to
the Internet context, the court in dicta suggests 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. Filtering software analyzes Web sites and newsgroups, blocking access
to those sites or pages the software has labelled as "inappropriate." Commercial
filtering software such as "CyberPatrol" and CYBERsitter" are examples
of filtering devices that are currently on the market. Such software monitors
key words and can block sites deemed to be violent, profane or sexual in
nature, for example.38
Chat rooms or sites without any editorial monitoring may be listed as "high
risk" sites as well.39
Q. Are administrators allowed to install filtering software?
A. This is an open issue. The proposed Safe Schools Internet Act of
1998 would require elementary and secondary schools and libraries receiving
federal Internet access subsidies to install filtering software.40
Opponents of the legislation maintain that even limited blocking would
violate the First Amendment. Such filtering provisions, they argue, would
be constitutionally overbroad in that they could also "inadvertently block
out sites on subjects like HIV and safe sex awareness sites."41
Public Colleges
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.42 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 prohibits material protected by the First Amendment.43
In one of the few cases to address Internet access on public college
computer networks a federal district court recently struck down a statewide
ban on sites that were "sexually explicit" in nature.44
The court sided with professors who claimed 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.45
CONCLUSION
Thirty years ago, the Internet was little more than a crude concept,
a nebulous idea in the minds of industry pioneers. No one could have predicted
that it would become a household term. Developers thought it would be used
exclusively by the military, and a few thought it might become a common
accessory in business offices. But a commodity?
And as with the advent of television, the telephone, or other formerly
"new" media, there are skeptics; those 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, 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."46
Rather, it comes from public officials "who try to protect outdated, incumbent
technologies."47
Even the Supreme Court has suggested in its Reno decision 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.
Part Two of this series, which will be available in the Winter issue of the Report, will focus on how copyright, libel and privacy law applies in the Internet context, and on school liability in general.
For More Information:
See the Student Press Law Center's recently-revised Model Guidelines at: www.splc.org/resources/high.school/guidelines.html
Other relevant information can be found at:
www.cybersquirrel.com (Cyberlaw
Center)
www.eff.org
For news about computer law:
www.techlawjournal.com
www.peacefire.org
For information on filtering sofware:
www.censorware.org
www.filteringfacts.org
Footnotes:
1 Joey Senat, Protecting Student Voices on the World Wide Web: Student Personal Home Pages and the First Amendment, presented at the Association for Education in Journalism and Mass Communication annual convention, Chicago, Ill. (Jul. 30Aug. 2, 1997) at 21 (quoting Steward Brand, The Media Lab: Inventing the Future at M.I.T. (New York Viking Penguin Inc., 1987) 253).
2 Reno v. American Civil Liberties Union, 117 S. Ct. 2329 (1997), aff'g 929 F. Supp. 824 (E.D. Pa. 1996).
5 Id. at 273. See also Planned Parenthood of Southern Nevada v. Clark County School Dist., 941 F.2d 817 (9th Cir. 1991)(en banc) (ruling that restrictions must be viewpoint neutral).
8 Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969).
12 <http://www.pen.k12.va.us/go/VDOE/Technology/AUP/home.shtml#intro>). See also <http://www.eff.org/CAF/faq/policy.html>).
13 <www.splc.org/resources/high.school/guidelines.html>.
14 Planned Parenthood, 941 F.2d at 821. See also Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819 (1995) (ruling that restrictions must be viewpoint neutral at the college level).
15 Planned Parenthood, 941 F.2d at 821.
16 Cal. Ed. Code §48907 (Deering Supp. 1991).
17 See also Ark. Stat. Ann. §§ 6-18-12011204 (Supp. 1995); Colo. Rev. Stat. §22-1-120 (1990); Iowa Code §28022 (Supp. 1996); Kan. Stat. Ann. §§72.1504-72.1506 (1992); Mass. Gen Laws Ann. ch. 71, §82 (1991). Constitutions in some states might provide additional protection. See e.g. Pa. Const., Art. 1, Sec 7.
18 See Wooley v. Maynard, 430 U.S. 705 (1977) (ruling that school officials cannot force students to say the Pledge of Allegiance).
19 Healy v. James, 408 U.S. 169 (1972).
20 See, e.g., Bazaar v. Fortune, 476 F.2d 570, aff'd as modified en banc, 489 F.2d 225 (5th Cir. 1973), cert. denied, 416 U.S. 995 (1973).
22 Id. Cf. Kincaid v. Gibson, Civil Action No. 95-98 (E.D. Ky. Nov. 14, 1997).
23
Id. See, e.g., Antonelli
v. Hammond, 308 F. Supp. 1329 (D. Mass. 1970); See Thonen v. Jenkins,
491 F.2d 722 (4th Cir. 1973) (upholding the rights of student journalists
to publish a four-letter reference to a university president); Korn v.
Elkins, 317 F. Supp. 138 (D. Md. 1970) (upholding students' right to print
a photo of a burning flag); Panarella v. Birenbaum, 32 For More Information:
See the Student Press Law Center's recently-revised Model Guidelines
at: www.splc.org/resources/high.school/guidelines.html
Other relevant information can be found at:
For news about computer law:
For information on filtering sofware:
Share
For more Information:
www.cybersquirrel.com (Cyberlaw
Center)
www.eff.org
www.techlawjournal.com
www.peacefire.org
www.censorware.org
www.filteringfacts.org
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