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

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

InArkansas, Greenwood High School students Ryan Kuhl and Justin Neal weresuspended in August 2004 for their Web sites containing violent illustrationsand comments criticizing the school. Kuhl’s Web journal, “FuckGreenwood” called the recent student orientation “dreadfullyboring.” Neal’s Web site contained a comic strip with an unnamedschool official shooting students at an assembly. School administrators, uponviewing the sites, claimed they caused a disruption at the school and orderedthe students to take down the sites. Kuhl and Neal sued their principal, JerryEfurd, on the claim that their First Amendment rights had been violate

InFebruary, Judge Jimm Hendren ruled that the students’ First Amendmentrights had been violated and further ruled that Greenwood school officials couldnot control the sites’ content, under the standard established in the 1969Tinker v. Des Moines Independent Community District ruling.

InTinker, the Supreme Court ruled that school officials could onlyregulate speech that would “substantially disrupt school operations orinterfere with the rights of others.”

Candace Perkins Bowen, boardmember of the Journalism Education Association, member of the Advisory Councilto the Student Press Law Center, and executive director of the JournalismAssociation of Ohio Schools, said that because Kuhl’s and Neal’s Websites were created off-campus, school officials would not have had a legal claimto control their content. Bowen added that courts have consistently ruled thatstudents’ off-campus speech is protected.

Adam Goldstein, the New Medialegal fellow at the Student Press Law Center, said that while the Tinkerstandard was applied correctly to Kuhl’s and Neal’s Web sites,other similar court rulings have not addressed the larger issue that schools donot legally have authority over students’ off-campus activities, becausewhen students are away from school they are private citizens. Goldstein saidstudents can only be punished by school administrators if their activity crossesover onto school grounds. For example, he said, a student who produces apersonal Web site while on campus could be legally punished by the school.Goldstein cited a 1972 court ruling out of Texas, Shanley v. NortheastIndependent School District, that determined that a school’spunishment of students for off-campus activities infringed on their FirstAmendment rights. In that case, five high school students were suspended afterschool officials claimed that they violated school board policy againstdistribution of printed materials when they distributed a newspaper on campus,outside of school hours, that they had produced off campus.

“It shouldcome as a shock to the parents of five high school seniors that their electedschool 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 willcome as no shock to the school board that their assumption of authority is anunconstitutional usurption of the First Amendment.”

“The questionis, 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 toexpress themselves “strongly and nonconventionally.” Chip Sexton,the students’ attorney, said the ruling reaffirmed students’ FirstAmendment rights.

Calls to Efurd and Greenwood Schools superintendent KayJohnson were not returned.

In 2003, Ryan Dwyer, then a student of Maple PlaceMiddle 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 toPhiladelphia after his principal discovered Dwyer’s “Anti-MaplePlace” Web site. Dwyer’s Web site, which was online from April 4 toApril 7, contained Dwyer’s opinions about administrators and the school.The site featured a picture of Dwyer’s principal, John Amato, with hishead flipped upside down and included statements such as, “The worstteacher is Mrs. Hirshfield because she has a short temper.”

The sitealso included a guestbook page for visitors to post comments, but could notcontain profanity and threats, Dwyer warned in writing. Out of the 10 commentsposted, six contained “swear words” and each criticized theadministration or the school. One visitor wrote, “We’ll get [MaplePlace Middle School] the last day of school” but later wrote in asubsequent post that they were “only kidding,” noting Dwyer’swarning against threats. School officials punished Dwyer after viewing andobjecting to the visitor’s comments. After letters from Dwyer and hisparents to the Oceanport School District yielded no changes to his punishment,Dwyer sued the district.

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

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

In his ruling, Chesler cited aprovision of the federal Communications Decency Act, which says: “Noprovider or user of an interactive computer service shall be treated aspublisher or speaker of any information provided by another information contentprovider.”

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

GraysonBarber, Dwyer’s attorney, said the Communications Decency Act was centralto Dwyer’s case.

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

Dwyer said hewas 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 inthe future, but not about his school.

Calls to the district attorney, HowardNirenberg, were not returned.

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

“This decision couldhave larger implications and ramifications for student-created sites,”Calvert said. “It seems like as long as the student creator of theoff-campus Web site [posts a warning of no profanity or threats] like Ryan Dwyerdid, and otherwise doesn’t intermeddle in the content, then he or she isgoing 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).