TABLE OF CONTENTS INTRODUCTION I. WHAT'S ALL THE FUSS ABOUT? II. SCHOOL DISCIPLINE: PROTECTING STUDENTS AND SAFEGUARDING RIGHTS A. Constitutional Safeguards for Public School Students 1. Due Process Requirements 2. Student Speech a. Speech in Schools b. Unprotected Speech: "Offensively Lewd and Indecent Speech," "True Threats," and "Fighting Words". c. Off-campus Speech d. Internet Speech 3. Accessing Information and Ideas III. ADDITIONAL CONSTITUTIONAL PROTECTIONS FOR STUDENT MYSPACERS A. Combining the Right to Privacy and the Right To Receive Information B. Rights to Expressive Association C. Advocacy of the Use of Force or Law Violation IV. PROTECTING STUDENTS' CONSTITUTIONAL FREEDOMS: A SUGGESTED TEST V. APPLICATION OF THE THREE-PRONG MYSPACE TEST CONCLUSION INTRODUCTION
On February 15, 2006, twenty students were suspended from their middle school in Costa Mesa, California. (1) The students had not been in fights. They had not skipped class. In fact, none of the students' behavior on school grounds necessitated disciplinary action. Instead, the students were suspended for their use of MySpace, (2) a social-networking website, from the privacy of their own homes after school hours. (3)
The suspensions punished activity that began in January 2006. (4) A TeWinkle Middle School student created a MySpace group and sent an online invitation to his MySpace "friends" to join it. (5) The invitation contained a "colorful psychedelic picture" and the name of the group, "I hate [girl's name with an expletive and racial reference]," but did not include a description of the group. (6) Approximately twenty TeWinkle students accepted the invitation and joined the group. (7)
Five days later, the group creator sent a MySpace message to the students who had joined his group. (8) directing group members to click on a nondescript folder. (9) When members opened the folder, a post appeared, which read, "Who here in the 'I hate (girl's name with an expletive and racial reference)' wants to take a shotgun and blast her in the head over a thousand times?" (10) The post asked group members who agreed to reply. (11) None of the TeWinkle students replied. (12) Several days later, TeWinkle teacher Elizabeth Copeland discovered the threatening post on the group's page while browsing MySpace and immediately alerted school administrators. (13)
School officials informed the group creator and message poster that he faced expulsion. (14) He was not the only student punished, however. All twenty TeWinkle students who had joined the group received suspensions. (15) Although the initial invitation to join the group and the second message by the group's creator did not give any indication of the page's threatening content, (16) school officials deemed it appropriate to suspend all of the group members simply for their association with the group. (17) The principal explained that the punishments were necessary because administrators perceived that group membership caused concern for the safety of students on campus. (18) Parents were outraged and believed that the school had "overstepped its bounds by disciplining students for actions that occurred on personal computers, at home and after school hours." (19)
The TeWinkle suspensions are but one of the many recent examples of suspensions and expulsions for MySpace-related activity around the country. (20) As student MySpace usage continues to grow, student MySpacers are falling prey to increased authoritative measures by school administrators. (21)
The United States Supreme Court has yet to issue any decisions regarding schools' limits in regulating or punishing off-campus Internet activity, and only a handful of state and federal courts have tackled the issue. (22) Lower court decisions have focused solely on disciplinary action regarding student Internet speech. (23) MySpace suspensions and expulsions, however, have not been limited to incidences of Internet speech. (24) Disciplinary action in response to off-campus MySpace activity may infringe not only on a student's freedom of speech, but also on her constitutional rights to privacy, to receive information, freedom of the press, and freedom of association. (25)
With little judicial guidance, school officials are taking matters into their own hands, frequently overstepping constitutional boundaries. This Note will argue that school administrators must tread lightly in maintaining the necessary balance between preserving school safety and protecting students' constitutional rights.
Part I focuses on the online social-networking phenomenon MySpace and details several suspensions and expulsions for off-campus MySpace activity around the country. Part II examines existing judicially-imposed limits on public school discipline. Part III suggests that those limitations are not sufficient with respect to MySpace punishments. Moreover, Part III identifies other constitutional protections that may be violated by MySpace suspensions and expulsions. Part IV suggests that a new test is necessary to determine the constitutionality of MySpace-related disciplinary actions. This test employs factors from the case law described in Parts II and III. Part V applies the suggested test to the MySpace suspensions and expulsions described in this Introduction and in Part I of this Note.
WHAT'S ALL THE FUSS ABOUT?
MySpace.com is an interactive social-networking site self-described as "a web site where members can meet friends, find and listen to new bands/music, blog, plan events, play games, and participate in user forums and create positive social change." (26) In June 2007, MySpace had 70 million users. (27) MySpace boasts that its global membership is larger than the population of Great Britain and continues to grow. (28)
When a new member joins MySpace, she creates and designs her online profile, allowing her to connect to other members, upload photos and graphics, send messages, create and maintain a blog, chat using an instant message (IM) function, post comments to public bulletin boards, create and join user groups, listen to music, and watch videos. (29) A summer 2006 study revealed that MySpace is used most frequently for its communicative functions, which include IM, mail messages, and bulletin postings. (30)
Membership on MySpace.com is ostensibly limited to people at least fourteen years old (31); however, 10 percent of all MySpace-page views are by users between the ages of twelve and seventeen. (32) On average, MySpacers spend two hours per day, five days per week, on the web site. (33) Because of the number of teen members, the networking site has been described as "[t]he new hour long phone call." (34)
Widespread teen MySpace usage has led to increased monitoring by school administrators and police officers. (35) Although MySpace is blocked on most public school computers, (36) school administrators patrol students' off-campus MySpace activity, believing that off-campus activity may compromise school safety. (37) An Indianapolis-area school administrator justified school discipline of MySpace activity, saying, "If something starts online and spills into school, we want to be able to deal with that and restore order to the school." (38)
The TeWinkle punishments discussed in the Introduction are not unique. In recent years, school administrators around the country have been expelling and suspending students for MySpace activity. (39) The following are only a few examples of the various types of MySpace behavior that have led to public school suspensions and expulsions in the past two years.
In February 2006, in Littleton, Colorado, sixteen-year-old Bryan Lopez was suspended for five days for posting "a satirical comment on the poor physical condition of the school, the behavior and demographics of students and staff, lack of resources and the perceived racial biases of teachers and administrators" on his MySpace page from his home computer. (40) Lopez's Littleton High School classmates could not view the satirical postings from school computers, because the school's Internet filters prevented MySpace from being accessed on campus. (41) When school administrators obtained a copy of Lopez's comments, they suspended him nevertheless, invoking a school policy that forbade off-campus conduct "that is detrimental to the welfare or safety of other students or district employees." (42) The superintendent then extended the suspension for an additional ten days to determine whether Lopez should be expelled for the MySpace activity. (43)
Two eighth graders from Oak Lawn, Illinois, were suspended for four days after administrators saw their MySpace postings, which contained "foul language, a digitally altered photo of George Bush sticking up his middle finger, pop-ups of women in bikinis and disparaging references to [another school in the area] and its staff." (44) Administrators at the elementary school threatened to cancel graduation ceremonies if students did not delete their MySpace accounts. (45) Parents were concerned that the school principal was improperly punishing students for off-campus activity. (46) As one parent put it, "She has no right to spy on our children in our own homes." (47) The principal defended the suspensions, saying, "We continue to act in the best interest of our students in respect to all areas." (48)
Protecting students was likewise a concern in Beaverton, Oregon, in June 2006, when Southridge High School officials suspended six students for threatening language posted on MySpace. (49) The postings began after one of the students "started an online forum attacking the Goth students, a group recognizable by their dark clothing and, at times, heavy makeup." (50) As more students joined the forum, threats of violence grew. (51) A rumor began that one group planned to attack the other on "06-06-06." (52) School officials could not identify a specific threat, but decided it was necessary to increase security and warn parents of the activity....