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II. The First Amendment in School

II. Rights And Responsibilities Of Students Publishing Online Underground Newspapers

Conclusion

Notes

Introduction

More than a decade after the Supreme Court's Hazelwood decision gave high school officials the right to censor many school newspapers and yearbooks,1 an increasing number of young people are choosing to express themselves in cyberspace -- a free-speech zone that they hope will be far removed from the reach of school officials' red pens.2 In an era when some high school newspapers have been relegated to printing cafeteria menus, sports scores and awards lists, the Internet has opened up a forum outside the school to fill the void of student expression left by Hazelwood and its progeny. By turning to the Internet, students now can express themselves in ways often beyond the scope of traditional school-sponsored student publications, such as through poetry, music and pictures. In addition, they can publish articles and editorials that many school administrators would simply refuse to allow in school-sponsored media.

Off-campus student speech traditionally has been considered censorship-proof.3  Unfortunately, school officials, often citing concerns about school safety in the wake of incidents of school violence such as the Columbine shootings,4 increasingly are punishing students for outside-school expression, both on the Internet and otherwise.5 While courts generally have ruled in favor of students' First Amendment rights on the Internet,6 the sad 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. It can be little consolation to students that academic sanctions and disciplinary punishments doled out by overzealous and misinformed administrators are often overturned or settled months or years later -- long after academic damage has been done and legal bills have piled up. Students who understand their legal rights and responsibilities on the Internet are better prepared to head off potential run-ins with school officials and defend themselves and their Web sites against unconstitutional censorship and punishment.

I. Deciding To Publish Online

What Is An Independent Internet Publication?
The distinguishing feature of an independent Internet publication is that it is produced and maintained on the Internet apart from any course and without the use of school materials or school assistance -- in other words, an online effort not officially affiliated with a school. Any perceived school connection comes simply because students are the sole producers as well as the intended audience. Independent Internet publications can take the form of message boards, single Web sites, a network of links between Web pages or full-fledged online newspapers, complete with editorials, sports and entertainment sections. Underground Internet publications often include hard-hitting commentaries on school-related topics as well as political and social issues of interest to students.7

Why Would Students Consider Publishing Online?
Students choose to go online for many reasons, including the Web's expansive reach, the low cost of online publishing and the chance to express themselves in a forum outside the control of school administrators.8 For example, students at Hinsdale Central High School, outside Chicago, decided to publish their student newsmagazine on the Internet after their principal censored and destroyed all copies of their award-winning publication, which contained an investigative series  on the feelings of students, parents, teachers and administrators towards school violence.9 The story was scheduled to be published on the second anniversary of the Columbine High School killings and included a comparison between Hinsdale Central and the Colorado school where two students killed 12 classmates and a teacher before taking their own lives. Among other things, the principal said he objected to the cover of the newsmagazine, which had a montage of two photos showing a television screen with a headline on school violence and a hooded figure pointing a gun at the reader. The principal described the story and cover as "alarmist." A local newspaper subsequently published a column supporting the students' work, which it described as "fair,"  "thorough" and "straightforward."10 The column included the Web site address for the story, which the students later reported was receiving approximately 2,000 hits a day.

In a more high-stakes example of defying administrative censorship, a handful of students at the U.S. Naval Academy in Annapolis, Md., began anonymously publishing online an underground newspaper after administrators shut down a similar, hard-copy-based school-sponsored paper. The administrators claimed they shut down the print-based paper because the editors had "tested the limits" in some unspecified way.11 The underground Internet paper, which has received more than 500,000 hits since going online in February 2000, publishes controversial stories about the Academy. It also pokes fun at rules, regulations, administrators and the Academy's official newsletter, The Trident.12 The underground paper's editors and staffers continue to publish in the face of threatened expulsion by the university administration, but they are able to remain anonymous because of a cleverly conceived routing of their site through a chain of civilian Internet users in California.13

In addition to turning to the Internet as a direct response to censorship, students also choose to publish online because
they want to provide an alternative newspaper for their school community. At a Centralia, Wash., high school, the idea to start an online underground newspaper was born after a student witnessed and wrote about a cheating incident in the student government elections -- a controversial story that the student suspected the school-sponsored paper would never touch.14

Some students have turned to the Internet because they want to provide information that is not only unlikely to be published in the school-sponsored newspaper but also difficult to publish in a paper format. This was the case recently at Stuyvesent High School in Manhattan, when a student created a Web site where the school's 3,000 students could anonymously evaluate their teachers.15 Such an interactive forum is difficult to reproduce in a print newspaper and would probably not be welcome on the school's Web server. In fact, Stuyvesent teachers were so angered by the reviews -- most of which were constructive and designed to help students select classes and be informed about their prospective teachers -- that some proposed refusing to write college recommendations for anyone in the junior class. The student creator stopped operating the site after teacher opposition to it became clear.16

II. The First Amendment in School

How Does the First Amendment Apply to Schools?
For about 14 years, since the Supreme Court's decisions in Hazelwood17 and Bethel School District No. 403 v. Fraser,18 the First Amendment scale in high school censorship battles has been decidedly tipped in favor of school administrators. While six states19 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.20

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.21 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.22

On-Campus Student Speech: The Tinker, Fraser and Hazelwood Standards
The U.S. Supreme Court, recognizing that students have the right to express controversial political ideas, said in 1969 that students do not "shed their constitutional right to freedom of speech or expression at the schoolhouse gate."23 The Court made that statement in the landmark case Tinker v. Des Moines Independent Community School District -- a case that upheld public school students' First Amendment rights to wear black armbands at school in symbolic protest of the Vietnam War. "School officials do not possess absolute authority over their students," the Court wrote. "Students in school as well as out of school are 'persons' under the Constitution."24 Thus, the First Amendment's protection of free speech does not stop simply because students are in a classroom instead of on a public street.

But the Court in Tinker implied that due to the schools' interest in maintaining order on campus, the First Amendment rights of public school children are slightly diminished while at school.25 Accordingly, the Court held that free-speech rights can be limited only when the speech in question "materially disrupts classwork or involves substantial disorder or invasion of the rights of others."26

Exactly what Tinker forbids is often a source of debate, but the case is important to off-campus Internet speech for several reasons. First, Tinker's implied view of education was that schools should encourage the free exchange of ideas among students.27 Second, the Court imposed a significant burden on school officials to justify silencing student speech, despite officials' interest in maintaining full control and discipline over students while at school. And most importantly to independent Internet publications, Tinker's "schoolhouse gate" language largely has been interpreted to imply that administrative control of student speech does not begin until the student arrives at the school and ends as the student leaves.28

However, Tinker left open a number of questions concerning the First Amendment and exactly how far students' free-speech rights should extend. For example, Mary Beth Tinker made no use of school resources to further her personal expression -- other than being in school while wearing her armband. Furthermore, her symbolic expression was, in the Court's words, "akin to pure speech," involving no foul language or insult to any individual.29 The armbands caused virtually no disruption of the school day -- making it impossible for the school to prove that the armbands had interfered with the school's educational objectives.30 Therefore, questions necessarily were left unanswered as to whether students' rights as recognized in Tinker would still exist if some of Tinker's facts were different. After 17 years, the Court revisited and answered some of these questions in Bethel School District No. 403 v. Fraser.31

In Fraser, the Court, now under the leadership of conservative Chief Justice William Rehnquist, upheld the suspension of Matthew Fraser, a high school student disciplined for a sexually provocative speech he made in support of a fellow student's student government nomination. Fraser delivered the speech, which was rife with sexual innuendo and lewd comments, at an official school assembly in front of 600 students. The day after the assembly, the school suspended Fraser for violating a school rule prohibiting "'conduct which materially and substantially interferes with the educational process ... including the use of obscene, profane language or gestures.'"32 Indeed, Fraser's speech had provoked a wide range of reactions from the student audience, including yelling, bewilderment and embarrassment.33

Based in part on the students' reactions, the Court found Fraser's speech constituted exactly the kind of material disruption Tinker forbids. The Court's decision departed significantly from the student-autonomy theme it had emphasized in Tinker. Instead, the majority stressed that for public education to "'prepare pupils for citizenship in the Republic. ... It must inculcate the habits and manners of civility.'"34 Civility in a democratic society, according to the Court, requires "consideration for the personal sensibilities of other participants and audiences," even in the most heated political discourse.35 Furthermore, the Court stressed the legitimacy of protecting minors from exposure to vulgar language.36 "Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse."37 Thus, the Court concluded that schools could, consistent with First Amendment principles, punish students for lewd, indecent or offensive speech and conduct occurring on campus in a school-sponsored forumsetting.38

Two years after Fraser, the Court decided Hazelwood v. Kuhlmeier,39 its first case specifically addressing the rights of high school student media. At the center of the case was the decision of a school principal to censor several student-written articles scheduled for print in the school newspaper. The Court distinguished the school-sponsored newspaper in Hazelwood from the armband in Tinker, pointing out that the Tinker standard applies only to non-school-sponsored activities and that the school newspaper was a school-sponsored activity.40

In Hazelwood, the Court held that school officials have the right to censor school-sponsored publications as long as the censorship is "reasonably related to legitimate pedagogical concerns."41 At the same time, however, it explicitly declined to overrule or limit Tinker's implied protections for non-school-sponsored publications. The Court noted that the Hazelwood decision applies only to "school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school"42 -- a group that pointedly would not include independent online speech.43

Today, many questions remain unaddressed by the Supreme Court in the wake of the Tinker, Fraser and Hazelwood trilogy. While the Court's holdings place dignified, political expression at the opposite end of the speech continuum from sexual innuendo and "vulgarity," the Court gives no hint, for example, of where on that continuum it would place speech that is insulting to or critical of teachers and school administrators. Moreover, the Court did not directly address whether its decisions are limited to speech in the schoolhouse or whether schools might have the authority to control off-campus speech that could disrupt the school environment. These unresolved issues and others have been left to the discretion of the lower courts.

Off-Campus Student Speech
While courts have so far had few opportunities to specifically address the First Amendment protections available to student operators of independent Web sites (see discussion below), they have examined the constitutional rights of students engaged in other forms of off-campus, private speech.

In Thomas v. Granville Central School District44, for example, four high school students published an underground newspaper with their own money and distributed it off-campus before and after school. The students had asked occasional questions of an English teacher and typed a few of the articles on school typewriters. The students were suspended for five days, had to write essays on the harm their speech caused and had suspension letters included in their permanent files.45 The school said the students' speech caused a disturbance on campus and that their paper was obscene; the court found no evidence of either.46 Despite the use of school typewriters, the court found that the students were essentially operating off campus.47 The court noted that no school funds were used to produce the paper and that the students had included in their paper a notice that disclaimed any connection with the school.48 In ruling for the students, the Thomas court was clear:  "[T]he First Amendment forbids public school administrators and teachers from regulating the material to which a child is exposed after he leaves school each afternoon."49 After-school hours are traditionally the realm of parents, the court said, and therefore the court was loath to allow the school to regulate that time.50 As members of the public, students are subject to the same laws as any other citizen, and therefore school regulations are unnecessary, the court found. School officials, the court said, were not empowered to assume the role of parens patriae [surrogate parent].51

While most courts recognize the constitutional limitations placed on public school authorities to punish students for their private, off-campus activities, a few have been very reluctant to tie the hands of school officials completely. Some courts have gone out of their way to justify schools' responses to off-campus speech, suggesting that students may not have the same rights as the general public when their off-campus school speech has a "disruptive" effect on campus. In other cases, school officials attempt to link off-campus speech to some on-campus event, such as the distribution at school of an underground newspaper written away from school.

In Boucher v. SchoolBoard of the School District of Greenfield,52 a high school student wrote an article in an underground print newspaper about how to hack the school's computers. After school officials got wind of the article, he was promptly expelled. Although Boucher wrote the article, there was no evidence that he participated in its on-campus distribution. He sued, claiming that the school violated his free-speech rights.53

Boucher argued that his article, written off campus, should be protected by the same standards applicable to any other private citizen -- be they student or otherwise. Specifically, his position was that even Tinker's "material and substantial disruption" test should be inapplicable to his private speech.54 The Seventh Circuit rejected Boucher's arguments and resolved the issue in favor of the Tinker test, thus stretching school officials' authority to regulate some off-campus student speech.55 According to the court, school officials' authority under Tinker extends to speech from which school officials can "forecast substantial disruption of or material interference with school activities."56 The Seventh Circuit justified its conclusion based on the fact that the speech in Boucher instructed readers on how to carry out an illegal, destructive, on-campus activity (the hacking of the school computers) -- activity that, if achieved, would certainly disrupt school functions materially.57 The court bolstered its opinion with the finding that the paper was actually distributed on campus, albeit not by Boucher.58

Courts have also at times expressed a willingness to "fudge" the geographic boundaries of on-campus speech to include some off-campus speech that had an impact on school grounds. For example, one court upheld the ability of school officials to regulate the distribution of publications handed out "near" campus in a "manner calculated to result in their presence on campus."59 A second court stated that "[t]he width of a street might very well determine the breadth of the school board's authority,"60 suggesting its willingness to adopt a "sliding scale" to determine how far off campus school authorities' power extends based on the likelihood it would cause a disruption. Under this court's rationale, peaceful and orderly student speech that took place just outside school grounds could not be subject to school regulation while speech that significantly disrupted school activities might be regulated, even when it occurred some distance away.

Finally, a few courts have allowed schools to punish students for engaging in otherwise lawful speech off school grounds not because of the content of the speech, but rather because of the student's inappropriate conduct.61 In 1973, for example, a high school student in Texas distributed a newspaper off campus, after school. The principal suspended him for violating a prior review policy that required prior submission of publications distributed off campus "in a manner calculated to result in their presence on campus.". As the student left the principal's office, he slammed the door and swore at the secretary. The student continued to come on campus during his suspension and swore again, this time at the principal.62 In upholding the student's suspension the court did not deal with the question of his published speech or the validity of the school's policy. Rather, it concentrated on the student's actions. The court was clearly disturbed by what it viewed as a flagrant disregard of authority. The court found that the student's actions after distribution of his newspaper disrupted the school day; therefore, his speech rights were subsumed by the school's interest in maintaining a peaceful school environment.63 "We ask only that the student seeking equitable relief from allegedly unconstitutional actions by school officials come into court with clean hands," the court stated.64

While these cases involved student publications, other courts have recognized the difference between off-campus and on-campus speech in other contexts and have limited the right of school officials to punish students for conduct outside of school that clearly would have been punishable if it occurred in the classroom. In Klein v. Smith,65 a student was suspended after giving one of his teachers the finger when he encountered him in a restaurant parking lot. The student sued after being suspended for 10 days for violating a school rule that prohibits "'vulgar or extremely inappropriate language or conduct directed to a staff member.'"66 The court overturned the suspension because it found that the relationship between the student's vulgar gesture while away from school too remote from school to support discipline of the student.67 However, the court's opinion makes clear that it would have upheld the suspension, just as in Boucher, if the court had found that the off-campus expression had materially disrupted activities at the school.68

Inside Or Outside The Schoolhouse Gate: Where Does Student Internet Speech Fall?
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."69 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 their recommendations.70

Since then, there have been scores of similar incidents reported. Mike Hansen of Edgewood Middle School in New Mexico was suspended for one day after he created a Web site that included a "Graffiti Wall" message board where students could post the names of other students they hated. Administrators found a printout of the page at school. Hansen's original suspension, which was for distributing a "hateful" Web page, was later changed to creating a "hostile and threatening environment," after school officials discovered that another student had distributed the printout. After Hansen's parents filed a complaint with the school, his suspension was removed from his record.71 Seventeen-year-old Aaron Fiehn of Belleview High School in Ocala, Fla. was suspended for 10 days for creating a Web site that used "vulgar language" to criticize the school. Feihn was reinstated four days later after the ACLU got involved.

Most of these incidents, like those involving Kim, Hansen and Feihn, are resolved short of litigation and almost always favor the student.72 However, a few courts have suggested that school officials may have the authority to punish students for their expression regardless of the context in which it occurs, at least when the effects of that expression can be felt within the school.73 As of May 2001, only five censorship cases dealing with independent student speech on the Internet have resulted in court rulings:

Current Cases Involving Off-Campus Student Speech on the Internet (as of June 2001)

1. Beussink v. Woodland R-IV School District
In Beussink v. Woodland School District,74 a federal district court in Missouri was the first to issue a decision involving a public high school's punishment of a student for his private use of the Internet. The site in question criticized the school, teachers and administrators. The court found in favor of the student, holding that Woodland High School officials violated high school junior Brandon Beussink's First Amendment rights when they suspended him for 10 days.75 The suspension resulted in Beussink failing all of his classes.

In its ruling, the court determined that the "material disruption" standard of Tinker was the appropriate standard for review, despite the fact that Tinker traditionally had not been intended to determine the protection of independent student speech that takes place off campus.76 Without explanation, the court applied Tinker and examined whether Beussink's Web site, which all parties acknowledged was created entirely off campus using a personal computer and private Internet account, caused any disruption at school. The court found that it had not.

The court did infer in a footnote that, by virtue of Beussink's classmate viewing his site at school, his speech was considered to have taken place on school grounds.77 It is important to note, as the court did, that Beussink originally did not intend for his site to be seen at school. The site was discovered accidentally by the classmate who had visited his home. There was disputed testimony by the school librarian that Beussink accessed the site on a library computer on the same day the principal saw it. However, the librarian did not claim that Beussink showed the site to other students.

Other than the disputed incident in the school library, none of the displays of the site at school came about because of Beussink's own actions. Therefore, it is hard to see how Beussink could be blamed for the appearance of his Web site on school computers. Thus, the significance of Beussink is that while on the surface it is a victory for student free-speech rights, its application of Tinker to off-campus speech carries the implication that off-campus speech, while entitled to significant First Amendment protection, is not completely outside the reach of school authorities when other students bring the expression on campus..

2. Emmett v. Kent School District
The court in Emmett v. Kent School District78 -- the second to rule in a case brought by a high school student after school officials punished him for his private Web site -- also found that the school had crossed constitutional lines.79 Nick Emmett, an 18-year-old honor student with an otherwise exemplary record at Kentlake High School in Kent, Wash., created the "Unofficial Kentlake High Home Page." The site, which included a disclaimer pointing out that it was for entertainment purposes only, included tongue-in-cheek "mock obituaries" of at least two of Emmett's friends. The obituaries were apparently the result of a creative writing assignment in which students were asked to write their own obituaries. Emmett allowed Web site visitors to vote on who should be the subject of the next obituary. When school officials learned of the site, they put Emmett on emergency expulsion for intimidation, harassment, disruption to the educational process and violation of Kent School District's copyright. The expulsion was later changed to a five-day suspension.

In finding that the school officials had violated Emmett's First Amendment rights, the court discussed, but did not apply, either Hazelwood, Fraser or Tinker to the case.80 Rather, the court explicitly distinguished between an underground newspaper distributed on school grounds and the private Web site at issue.81 "Although the intended audience was undoubtedly connected to Kentlake High School, the speech was entirely outside of the school's supervision or control," the court wrote.82 Finding that the school presented no evidence that Emmett's site posed any genuine threat or that it "manifested any violent tendencies whatsoever," the court ordered the school to immediately lift the suspension.83 The school also later agreed to pay Emmett $1 in damages plus $6,000 in legal costs.84

3. Beidler v. North Thurston County School District
In another case out of Washington State, a state court in January 1999 ruled that school officials at Timberline High School in Lacey violated the First Amendment when they punished Karl Beidler, then a 17-year-old junior, for his private Web site that ridiculed a school administrator.85 Officials suspended Beidler for the remainder of the school year for "exceptional misconduct." The court quickly dismissed the school's claims that either Hazelwood or Fraser justified the disciplinary action. But it also sidestepped the question of whether Tinker was the appropriate standard for off-campus speech in its finding that the evidence did "not show a material and substantial disruption of the work or discipline of the school ... regardless of where the geographical limits of school authority may lie. ..."86 After the court found that school officials overstepped their bounds in expelling Beidler, the school district agreed to pay him $62,000 in damages.87

4.  J.S. v. Bethlehem Area School District
While the matter was still being appealed as this publication went to press, the only case to side with school officials involved the expulsion of an eighth-grade student from a Pennsylvania middle school after he created a Web site on his home computer titled "Teacher Sux." In J.S. v. Bethlehem Area School District,88 the student's site included derogatory comments about the student's algebra teacher and principal, including an image of the teacher's face morphing into Adolph Hitler, a picture of her severed head dripping with blood, and a request that visitors to the site contribute $20 to cover the cost of a hit man. The student claimed his site was meant to be a joke. When school officials learned of the site, they contacted local police and the FBI, both of which investigated the case and found no reason to pursue the matter. The school district, nevertheless, concluded that the site did constitute a threat to the teacher, harassment of both parties and harm to the health, safety and welfare of the school community. At trial, evidence was introduced showing that the teacher had suffered psychological harm because of her reaction to the site and was unable to return to school.89

In a 2-1 decision, the appellate court explicitly recognized the distinction between on-campus and off-campus student speech.90 Nevertheless, it found that Tinker controlled "where it is established that the [off-campus] conduct materially and substantially interferes with the educational process."91 However, the court then proceeded to both water down Tinker's language and cloud the on- and off-campus distinction by looking to Fraser to justify the school district's determination that the Web site "hindered the educational process."92 The court also reached its decision by citing an earlier Pennsylvania case, Commonwealth v. Baker,93 to find that "lewd, obscene, profane, libelous and insulting [speech] is not constitutionally protected,"94 a sweeping pronouncement that certainly exceeds the U.S.  Supreme Court's reading of the First Amendment. On March 13, 2001, the Pennsylvania Supreme Court agreed to hear an appeal of the case.

5. Killion v. Franklin Regional School District
The court in Killion v. Franklin Regional School District held that a high school student could not be suspended for an e-mail written and mailed off campus.95 Zachariah Paul, a high school student at Franklin Regional High School in Pittburgh, Pa., wrote the email after becoming frustrated by a denial of a student parking permit and imposition of various rules and regulations for members of the track team, of which Paul was a member.96 The satirical e-mail contained a "Top Ten List" that lampooned the school's athletic director and made disparaging remarks about his sex life. Another unknown student distributed the e-mail message at school. In deciding that Paul's suspension was illegal, the court followed the reasoning of Tinker because the e-mails were distributed on campus (albeit not by Paul) and held that because the e-mails were distributed off-campus and did not create a disruption at the school, the school's 10-day suspension of Paul violated his First Amendment rights.97

What Do The Cases Mean?
Even taken together, these early cases provide limited guidance in predicting the scope of First Amendment protection for independent student speech on the Internet. Certainly, courts can still reasonably conclude that school officials simply cannot control a student's off-campus speech and that a student enjoys the same constitutional protections when off-campus as any other citizen. Nonetheless, two ideas have arguably begun to take root in the lower courts:  (1) Tinker's "material disruption" standard 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 on campus. (2) Even in situations where Internet speech takes place entirely outside of school, administrators may -- in extreme cases -- persuade a court to extend their Tinker-based authority to reach beyond the schoolhouse gate.

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 (see extended discussion, below). 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 be censored under Hazelwood but that would not satisfy the "material disruption" standard of Tinker -- would be protected.
 

II. Specific Legal Rights And Responsibilities Of Students Publishing Online Underground Newspapers

What Can Be Included In An Online Underground Newspaper?
Many students want to create an underground newspaper to air grievances about their school and issues of concern to them. Others are simply looking for a creative and fun outlet to show off literary or artistic talents or Web expertise. Whether Web sites contain comments about a school board's controversial decision or reviews of Gothic music, a Web site publisher does not have to avoid all topics that administrators might deem too "sensitive" for a newspaper affiliated with a school. While students are strongly urged to exercise common sense and good judgment in their selection of content -- as well as avoiding some of the legal problems discussed below -- public school officials are forbidden from punishing students solely because of the viewpoint expressed on a subject.98 In fact, courts have come to respect frank, opinionated discussion of serious topics in underground papers.99 Thus, some of the school-related topics discussed on private Web sites have included counseling services, dress codes, student elections, political correctness, flag salutes, athletic programs and administrative searches of students. Online underground newspapers have included commentary on nuclear war, the American economy, curfews and drug abuse.

What Should Not Be Included In An Online Underground Newspaper?

Libelous Material
Just like any journalist, publishers of underground newspapers must be careful not to damage people's reputations through the publication of inaccurate information. The size of an online paper's audience or the informality of the publication's appearance or tone do not insulate students from potential legal liability for libel. Libel is defined as any published communication that falsely harms a person's reputation.100 Statements that can be proven true cannot be libelous. Likewise, statements that are purely opinion cannot be libelous, although the distinction between fact and opinion can often be hard to define and does not turn solely on phrases such as "in my opinion." Statements that no reasonable person would believe, such as satire, spoofs or rhetorical hyperbole are not libelous. Finally, fair and accurate reports of official records and proceedings, such as a school board meeting or a police report, can generally be published safely, even if the official reports later turn out to be inaccurate.

In an online underground newspaper, potential libel problems may arise when students are tempted to include personal attacks against school officials or classmates. Attacks can come in the form of words or pictures and often associate specific people with negative things, such as being a criminal or a liar. If such statements "libel" a person, the speech is unprotected under the First Amendment and the person making the statement can be sued.

An independent Internet publication can live a longer life if it steers clear of potential libel law problems, as school officials will often cite fear of libel as a reason for penalizing off-campus student speech. In the case J.S. v. Bethlehem Area School District, discussed above, middle school officials expelled an eighth-grade student for ridiculing the principal and a teacher on his Web site.101 The site featured a picture of the teacher morphing into Adolf Hitler and a list of reasons she should be fired.102 The teacher filed a libel suit against the student. While the jury rejected the libel claim in November 2000, it awarded the teacher $500,000 for invasion of privacy.103 In another example, California high school students who ran, as a joke, a picture of political and school officials with a caption about a drug deal might not have libeled anyone, but suspensions and a lawsuit were involved before the controversy went away.104 In an extreme case in Utah, a student actually served jail time after being charged with criminal libel for making statements on his Web site that referred to the principal as the "town drunk" and named girls at his high school as "sluts."105 A careful and reasonable analysis of any potential libel issues will enable underground journalists to rebut any later accusations intelligently. Such care, however, should not prevent online underground newspapers from tackling tough subjects. It only argues for some thought before publishing.106

Obscene Material
Some underground newspapers attempt to attract attention and make pointed statements by using profanity or crass references in their pages. The law protects most cases of poor taste, vulgarity and offensiveness that takes place off campus, but the careless, wanton use of such language will inevitably create more problems -- legal and otherwise -- and drain an online publication of time and resources that could be better spent elsewhere. Moreover, true obscenity is not protected by the First Amendment and represents another danger zone.

The Supreme Court's test for obscenity involves three elements: (1) whether a reasonable person, applying contemporary community standards, would find that the work, taken as a whole, appeals to a prurient (lustful) interest, (2) whether the work depicts or describes in a patently offensive way sexual conduct specifically defined as obscene by the applicable state law, and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.107 Mere offensive content, such as profane language or ideas, is not obscene under the Supreme Court standard.108

However, a similar but slightly broader definition of obscenity has been applied to cases involving minors. In 1968, the Court in Ginsberg v. New York 109 defined obscenity involving minors as any description or representation of nudity or sexual conduct that (1) predominantly appeals to the prurient, shameful, or morbid interest of minors, (2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors, and (3) is utterly without redeeming social importance for minors. Thus, a high school online underground publication, especially if viewed on campus, could run into obscenity problems even if the same material would not be considered obscene outside of school or on a college campus. These standards are obviously vague, but underground journalists wishing to avoid trouble should think twice before including such things as graphic nudity or other sexually explicit material in their publication that does not have some important journalistic or social importance.110

In addition, it is important to note again that the Supreme Court in Bethel School District v. Fraser upheld school officials' punishment of a student for giving a "lewd" campaign speech at a school assembly.111 Thus, courts have come to allow restrictions on high school students' on-campus speech that is lewd and vulgar, but not legally obscene. Courts may disagree about the reach of Fraser when applying it to independent student media, but some courts have allowed censorship of such publications based on language.112 Other courts, however, have held that students may use earthy language and crass references as a part of unofficial publications.113  These courts note that such content may offend some people, but, for better or worse, it is a part of our society and can be found in mainstream literary works.

Thus, although underground student journalists are not likely to run into problems with obscenity as narrowly defined by the Supreme Court, they should keep in mind the audience of the publication, the pervasiveness of any offensive material (that is, whether every other word or phrase is crude) and if there might be other methods of communicating ideas that would avoid potential problems, legal and otherwise.

Material That Disrupts School
Probably the case most relied upon so far in the five existing student Internet speech cases is Tinker v. Des Moines Independent Community School District.114 While the application of the case to off-campus, private student speech is subject to debate, Tinker's "material disruption" standard has nonetheless turned into something of a First Amendment workhorse for off-campus student speech. Some lower courts have been anxious to find on-campus excuses to extend school authorities' reach to speech posted on students' private Internet accounts.115 But "material disruption" is still a difficult burden for school officials to meet. In the Internet context, "material disruption" has been found not to include harsh criticisms of school, teachers, and administrators116 or the posting of mock obituaries as a joke between a group of friends.117  Nevertheless, there are some categories of speech underground journalists should avoid.

First, underground Web sites should not cause or incite illegal conduct. Actually leading readers through a detailed how-to lesson on such topics as violence, computer hacking or illicit drug use may cross the line between advocacy and incitement and makes it easier for school officials to argue that students are disrupting school. Such was the case in Virginia when students published in their underground paper a recipe -- which they said was intended as a joke -- for a marijuana dessert called "Apple Pot."118 Likewise, in 1995, a New York high school student was actually arrested for inciting a riot after asking students to throw trash on the ground, urinate on the floor and wear certain types of T-shirts to school.119

Even incitement to violate school rules not involving criminal conduct could cause problems for student Web sites. Such was the case in Georgia when a student was suspended for 18 weeks after posting on his Web site a list of 11 ways to disrupt class.120 The student gave examples and encouraged other students to take part in such activities as "booing if we hear something we don't agree with," and "leaving the room without permission." The site also named an administrator as a "person we try to avoid the most" and included a link to the school's official Web site with the suggestion that visitors "go there and heckle." While the legality of such administrative action was not tested -- and is certainly in question -- the problems faced by some of these students probably could have been avoided.

Calls to stage walkouts or protests also can lead to problems when school officials can point to recent events making it likely that students will respond to the plea. For example, a federal court upheld an Indiana high school's decision to suspend students for handing out leaflets calling for a walkout.121 The court said that a walkout by 54 students the day before, the noisy and rowdy atmosphere in the halls, an increase in tardiness and predictions by administrators of an even bigger walkout the next day combined to make the leaflet distribution disruptive.122 While a distribution of printed material calling for a walkout on campus is quite different from posting a similar plea on a personal Web site, the courts' recent willingness to apply Tinker to off-campus speech makes this decision significant to students who are considering placing such a plea on their personal site. False announcements of class cancellations could also fall into the category of substantial disruptions.

Pointed ridicule or statements aimed at humiliating particular groups of students or individuals can play into the hands of school officials as well, who may argue that such insults may lead to disruptions at school.123 Case-in-point is again J.S. v. Bethlehem Area School District,124 where the court found that the student's depiction of his teacher's head dripping with blood and morphing into Hitler along with an invitation for readers to contribute to the hiring of a hit man caused her to be too afraid to return to school. The court found that the site was disruptive enough to make necessary the hiring of a substitute for the remaining of the school year.125

In addition to these general warnings, editors of online underground newspapers should always keep their audience in mind. Disruptions are often much more likely to occur at a high school level than in college. Another thing to remember is that underground journalists wrongly accused of causing a disruption can always point to the fact that no real disruption occurred after the article was distributed or posted -- a defense that has helped students in a number of cases.126 And finally, school officials would have a difficult time arguing that a substantial disruption occurred in cases where the only disruption was a result of the punishment -- such as a subsequent student rally to protest the expulsion of a Web site's creator -- or other reaction of school officials -- and not the Web site itself.

True Threats
True physical threats are not protected by the First Amendment.127 Courts have struggled with which test to use to determine whether speech constitutes a true threat. One test is whether a reasonable person receiving the threat would perceive the statement as a serious threat of injury.128  Another test is whether the person making the statement should have foreseen that the person receiving the threat would perceive it as real.129  Student journalists need to realize that in the post-Columbine High School era, school officials are extremely jumpy when it comes to threats to teachers, students or administrators posted on students' personal Web sites, even if the "threats" are really only meant to be jokes. In J.S. v. Bethlehem Area School District,130 the student's alleged threat was to solicit $20 from anyone who wanted to contribute to the hiring of a hit man to kill a teacher. When school officials discovered the site, they contacted the FBI and local police, who began an investigation. The student claimed it was a joke and the FBI and police did not pursue the matter further. But the teacher claimed she was terrified to return to school, and the school had to hire a substitute for the remainder of the year. The bottom line is that threats can have negative effects on people. Students who make such threats risk facing academic and possibly legal consequences -- whether the threats are jokes or not. Student journalists who want to be taken seriously and avoid trouble are best advised to stay away from joking threats.

Copyrighted Material
As mentioned earlier, the law generally treats producers of online underground newspapers no different from other journalists and publishers. This continues to be true in regard to areas such as copyright and invasion of privacy.

Copyright protects authors creators of stories, photographs, artwork and graphics against unauthorized use of their work.131  For example, an online underground newspaper would clearly violate copyright laws if it included without permission the entire text of a new short story by Stephen King. Similarly, portions of comic strips or ads cannot be taken from other publications, even if editors change some parts. Another important thing to remember is that a work does not need to include the familiar "©" symbol in order to receive copyright protection.

Federal copyright laws should not, however, prevent an underground newspaper from ever using copyrighted material. Underground journalists, like anyone else, can seek explicit permission, for example, to reproduce a photograph published in the local newspaper. Fair use of a copyrighted work also allows journalists to use limited portions of copyrighted materials in such items as book reviews, news reporting or commentary about those works. In addition, parodies and originally produced caricatures of cartoons necessarily use copyrighted materials as their source and are permitted as long as they are not used merely for their recognition value or to usurp opportunities for the original author to make money off the same idea.132 Student journalists should pause to consider any copyrighted considerations before publication.133 For more information on copyright, see The Student Media Guide to Copyright Law at http://www.splc.org/resources/copyright.html.

Material that Constitutes an Invasion of Privacy
Online media can also get into trouble when they invade people's privacy. One way to do this is to disclose, with no newsworthy purpose, private or embarrassing facts that would humiliate the target.134 This might happen if a student's confidential transcript or medical history were posted or discussed on a Web site or where a gossip column revealed the intimate details of a teacher's romantic life. Although newsworthiness can protect some uses of personal information, truth is not a defense in a privacy case as it is with libel. And while the subject of a news story can consent to an invasion of their privacy and thereby shield the publisher from liability (for example, by agreeing to work with a reporter to tell the story of their successful substance abuse treatment), such consent must be provided by someone capable of giving it (which probably rules out many younger students). The defendant must prove consent in court.

In addition, editors can cause themselves headaches when they portray someone unflatteringly in words or pictures as something he or she is not.135 The most common example of a "false light" claim is when a photograph is placed next to a caption, story, or headline that creates the wrong idea, such as a picture of a man innocently drinking a beer next to a story about alcoholism. Even if someone's picture or likeness is used in a flattering or non-controversial way, newspapers then have to guard against claims of using someone's name, likeness, or endorsement without authorization for commercial purposes, such as in an advertisement.

Another type of privacy problem can arise when one physically intrudes on someone's privacy. This can happen when reporters trespass where they are not supposed to be, use surveillance equipment to observe or record people without their permission, or misrepresent themselves to gain access to somewhere they would not otherwise be entitled to go. In each of these privacy situations, common sense is undoubtedly the most valuable tool a student journalist can have.136

Other Issues

The Communications Decency Act: Immunity For Content Posted By Non-Staff Members
The Communications Decency Act, passed in 1996, states that interactive computer service providers are not liable for information provided by other sources.137 For the student online media, this could mean broad immunity for libelous comments posted by others to their bulletin boards or other areas where public postings are allowed. It is may even be possible to argue that the immunity applies to other "outside" content, such as advertisements, letters to the editor, syndicated columns and even articles from freelancers.

But there are some pitfalls to avoid. If students add content to material provided by others or rewrite portions of the work as part of the editorial process, for example, a court could conclude that the student Web site publishers helped to "create" the information. In that case, the publication could be liable. While the application of this federal law to student media has not yet been defined by the courts, student journalists and school administrators should be aware of the protection it may offer -- as well as the limits -- when they venture into cyberspace.138

Anonymous Publications
Many underground journalists seek to expose their ideas to their classmates, but not necessarily their identities. They may justifiably fear retribution from teachers and administrators or scorn from their community. While complete anonymity may not be possible to achieve in a print-based underground paper, it is almost always an option for editors and writers of online publications. In any case, the important thing to remember is that anonymous speech is constitutionally protected.139 Indeed, as one court has said, prohibition against anonymous literature is not desirable because "without anonymity, fear of reprisal may deter peaceful discussion of controversial but important school rules and policies."140 While one cannot legally be punished simply because he or she does not put their name on published material, keep in mind that school officials often go to extreme lengths to attempt to learn the writers' identities on their own. Moreover, hiding behind the cloak of anonymity is not always a sure bet. If you use your personal computer or a family Internet account to post your "anonymous" publication or message, you have left clear electronic "tracks" that can fairly easily be traced by your Internet service provider.141

Disclaimers Of School Sponsorship
While putting students' names on an underground newspaper may not be necessary, it is strongly suggested that Web site publishers include a statement that the school is not involved with the site. This protects publications against arguments by school officials that readers will be confused by the site's perceived relation with the school.142 This happened to an underground print newspaper at a North Carolina college, where school officials complained that the paper's name incorporated the school's name and used the school's seal in its masthead. The paper denied using protected material and denied trying to confuse people. However, it ended up changing its secondary title from an "independent journal of" the school to one "at" the school.143 A Missouri college student also asserted recently that he was expelled from school because school officials alleged his alternative newspaper had misled advertisers into thinking it was affiliated with the school.144

A simple way to avoid this problem is to include a simple, one-sentence statement in the flag or masthead of your site that states something along the lines of: "This site is not affiliated with Anytown High School, and the site's contents are in no way endorsed or funded by the school." Also, choose a name for your publication that is distinct from existing school publications so as not to mislead readers. This may not prevent all legal problems, but at least it shows responsible steps to prevent confusion.

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. Additionally, courts may -- where they find the facts particularly unpalatable -- go out of their way to "stretch" the law and allow school officials to supersede parents when it comes to regulating student expression at home.