Public Schools and the Internet

• Publication year: 2021

79 Nebraska L. Rev. 929. Public Schools and the Internet

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Kelley Baker*

Public Schools and the Internet

I. INTRODUCTION

The development of the Internet has worked the most profound change in human communication since the invention of the printing press.1 Internet users can access an almost limitless array of information with the click of a mouse. Just as the Internet has revolutionized the way businesses conduct their work, it has profound implications for education generally, and public schools specifically.

Few would dispute that schools should provide their students with the necessary training to use the Internet wisely and effectively. Familiarity with computer technology and the Internet is vital to our children's future. However, the entry of K-12 schools into the Information Age has created a legal minefield regarding students' and employees' use of the Internet and e-mail both during and outside school time. Access to the Internet and e-mail has led to numerous abuses that have been both embarrassing and unlawful. Students have been caught using the Internet to visit pornographic or hate group web sites, or to post derogatory and sometimes even slanderous information about their teachers. School employees have been discovered using the Internet to gamble, to run private businesses, and to solicit dates and romantic relationships with students. Other computer users have gained access to schools' web sites to add "hypertext" links to their own churches or private businesses, or have violated copyright laws by copying, using, and distributing commercial software programs without authorization. There are myriad ways for people to misuse the Internet and e-mail, and schools are particularly vulnerable to such abuses.

Schools find themselves in the unenviable position of trying to navigate between state-sponsored censorship and state-aided pornography distribution. Both sides are fraught with constitutional and statutory dangers. The censorship of constitutionally-protected

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speech is clearly problematic, but so too is providing young students access to pornographic materials. The problems also exist regarding school employees. This article will trace, to the extent it is marked by judicial interpretation, the fine line between the limits to censorship and a school's obligation to control the use of public resources.

Since this article was written, Congress has passed the Children's Internet Protection Act,2 which requires all public schools and public libraries to filter their Internet access in order to be permitted to use federal funds to finance their computers and Internet access. However, this article is still relevant for several reasons. First, the schools and libraries have a choice to forgo the computer- and Internet-related federal funds in order to keep their Internet access filter-free. Second, the filters which will be in use are not perfect and many leave some problems to be solved by other means suggested below. Finally, this Act may not survive the courts. The very balance which is the subject of this article may not have been reached in this Act. The American Civil Liberties Union and the American Library Association have already filed suit to block the new law. In the past, the United States Supreme Court struck down the 1996 Communications Decency Act similarly aimed at protecting children from on-line pornography.3 The Children's Online Protection Act was seen by the Third Circuit Court of Appeals as violating the First Amendment.4 That Act is now on hold until the Supreme Court can decide the case. This new 2001 law differs from those previous two and may withstand the courts' scrutiny, but the challenges have already begun and the final result is unknown. It is certain that the courts will employ some of the same analyses included below to find the thin legal ground that exists between unconstitutional censorship and the duty to create a healthy, safe environment in our schools and libraries.

II. THE NEED TO REGULATE

There is widespread agreement that children's access to dangerous or questionable material on the Internet is a problem. One recent study discovered that sixty percent of children's access to the Internet takes place outside the home, principally in schools and libraries.5 However, the Internet contains an enormous amount of information that should not be accessed by primary and secondary school students.

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Experts estimate there are more than 12,000,000 pages of pornography on the Internet, comprising 1.5% of all Internet content.6 Providers add 500 new pornography sites and 200 hate sites on-line every day.7 Students can access this material intentionally, inadvertently, or innocently. For example, during the National Aeronautic and Space Administration's Mars Mission, NASA officials encouraged school children to view and download photos of the planet on NASA's web page. NASA's URL (Uniform Resource Locator) is www.NASA. gov. However, many students mistakenly typed in www.NASA.com, which took them to a banner pornography site with direct free links to hard core sexual photographs.8 After press coverage focused attention on the situation, the providers shut down the NASA.com site, but many other examples of deceptive URLs still exist.9

Solutions to these problems are varied. Software can be incorporated into a computer which blocks certain web sites from being accessed. Other software can filter out web pages that contain words likely to be on inappropriate sites.10 Schools can also install customized monitoring systems which examine all network activity and report potential problems.11 Each of these measures can help mitigate the problem of access to pornography, but each comes with its own set of legal and constitutional problems.

III. FIRST AMENDMENT CONCERNS

A. Material Posted on the Internet is Protected Speech

The First Amendment does not protect all speech in all places,12 but the United States Supreme Court has deemed the Internet as a whole to be a forum where the highest degree of First Amendment protection should apply. In Reno v. ACLU,13 the Court struck down

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parts of the Communications Decency Act,14 holding that the Internet was one of the purest forms of free speech. The Court observed that in the virtual world, "any person with a phone line can become a town crier with a voice that resonates farther than it could from any soap-box."15 This is quintessentially the speech the First Amendment was written to protect. To survive constitutional scrutiny, restrictions on protected speech in a public forum must be the least restrictive means that can accomplish a compelling governmental purpose.

Obscene material is not protected by the First Amendment. In 1973, the Court clarified that this category of unprotected speech consists of "patently offensive" speech without any "literary, artistic, political, or scientific value."16 However, last year, the Court gave pornographic television programming First Amendment protection and found that Congress's efforts to restrict it were unconstitu-tional.17 Congress had passed a statute requiring cable sex channels either to "fully scramble or otherwise fully block" those channels or to limit their transmission to hours when children were unlikely to be viewing (set by administrative regulation to be between 10 p.m. and 6 a.m).18 The Playboy Channel sued, claiming that the statute was overly broad in limiting Playboy's ability to broadcast its programming. The Supreme Court agreed. It held that Playboy's programming enjoys First Amendment protection and that the government's interest in shielding children from sexual images was insufficient to justify the overly broad restrictions.19 The court wrote: "[E]ven where speech is indecent and enters the home, the objective of shielding children does not suffice to support a blanket ban if the protection can be accomplished by a less restrictive alternative."20

Thus, when school administrators restrict student and employee access to pornography via the Internet, they must be mindful of the First Amendment protections afforded to this information. However, that does not mean that school officials cannot regulate Internet use.

B. Employees' First Amendment Rights

1. First Amendment Considerations: Whose Computer Is It Anyway?

Private employers own their computers and may place any restrictions on computer use they see fit. However, as public schools are arms of the State, the government owns their computer resources. First Amendment

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freedom of speech and expression protections therefore apply to school districts' regulations. And they must consider First Amendment issues before adopting any computer use policy.

The U.S. Supreme Court has recognized that the government, similar to a private property owner, has the "power to preserve the property under its control for the use to which it is lawfully dedicated."21 Unfortunately, the courts have yet to provide much guidance as to the way the First Amendment will be interpreted regarding computer networks. However, the Supreme Court has determined that there are three types of forums: public forums, limited public forums, and nonpublic forums.22 In turn, the type of forum determines the kinds of limitations that the government may impose.

Public forums are "places which by long tradition or by government fiat have been devoted to assembly and debate," such as streets and parks.23 Limited public forums consist of public property that the government has opened for use by the public as a place for expressive activity. In a limited public forum, a public entity may not enforce restrictions on speech, even if it was not required to create the forum in the first place. Although the government is not required to retain the open nature of the forum indefinitely, as long as it does so...