School districts as weathermen: the school's ability to reasonably forecast substantial disruption to the school environment from students' online speech.

• Author: Levin, Samantha M.

Introduction I. The First Amendment, the Internet, and the Supreme Court's Limited Jurisprudence on Student Speech A. The First Amendment B. The Supreme Court's Jurisprudence on Student Speech C. The Internet II. Lower Courts' Attempts to Address Whether School Reasonably Forecasted Substantial Disruption A. Non-Internet Speech and Whether School Reasonably Forecasted Substantial Disruption 1. On Campus 2. Off Campus B. Online Student Speech and Reasonable Forecast of Substantial Disruption 1. Cases in Favor of the School 2. Cases in Favor of the Student III. Proposed Refinement Conclusion INTRODUCTION

In 2005, Justin Layshock ("Justin"), a seventeen-year-old senior at Hickory High School in Hermitage, Pennsylvania, went onto his grandmother's computer, at his grandmother's home, and created a fictitious profile on MySpace.com ("MySpace" (1)) of the principal of Hickory High School. (2) The profile characterized the principal as a drug-using alcoholic. (3) Justin was suspended for ten days. (4) Similarly, in 2007, J.S., a fourteen-year-old eighth grade student at Blue Mountain Middle School in Orwigs-burg, Pennsylvania, logged onto her household computer and created a fictitious MySpace profile of her principal. (5) This profile characterized the principal as a bisexual sex addict. (6) J.S. was suspended for ten days. (7) Both students brought cases against their school districts. While the facts of both cases are almost identical, the Third Circuit issued opposite holdings, one in favor of the student and the other in favor of the school district. (8)

This intra-circuit split is likely due to a lack of guidance from the United States Supreme Court on the issue of when school officials may punish students for Internet speech created on a student's home computer. The standard utilized in most student speech cases was established in Tinker v. Des Moines Independent Community School District, (9) a case decided in 1969, prior to the invention of the Internet. In Tinker, a group of students sued their school district after being suspended for wearing black armbands in protest of the Vietnam War. (10) The Supreme Court held that "where there is no finding and no showing that engaging in the forbidden conduct would 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition cannot be sustained." (11) In dicta, the Court further stated that a school may be able to punish student speech if, in the absence of a substantial disruption, the record demonstrates "any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities." (12) The standard established in Tinker is vague, in that courts are unclear as to when the test should apply and how much discretion should be given to a school official's decision to discipline. In addition, having been established prior to Internet speech, the standard is outdated. Courts are now left with the difficult task of applying the already murky Tinker standard to the modern context of the Internet. More specifically, they must address this question: When does school discipline cross the line from merely punishing speech that the school disagrees with, to punishing speech that the school foresees would cause a substantial disruption to the school environment?

The Internet is a unique communication device, creating a dilemma for both the schools and the district courts that adjudicate speech cases involving the Internet. Unlike tangible forms of communication, such as newspapers, speech made on the Internet is boundary-less, (13) and pinpointing the location of its occurrence is not easily accomplished. Therefore, when speech occurs via the Internet and concerns a school official, it is often difficult to determine an applicable standard. In these cases, lower courts have struggled to apply the Tinker dicta.

In the cases utilizing Tinker, most courts have broken the inquiry down into two prongs. The first prong of the student speech inquiry asks whether the speech can be characterized as having occurred on or off campus. Student speech is afforded full First Amendment protection when it occurs off campus, but only limited First Amendment protection when it occurs on school grounds. (14) Examples of off campus speech include a drawing done by a student in his home with no intention of bringing the drawing to school, (15) and an underground newspaper sold off campus. (16) If the speech is off campus, and is therefore afforded full First Amendment protection, punishment by the school district for such speech is prohibited. If the speech is on campus, and therefore does not have complete First Amendment protection, the analysis continues to the second prong. The second prong of the student speech inquiry asks whether the on campus student speech has caused, or whether the school can reasonably forecast that it will cause, a substantial disruption to the school environment.

While the above analysis may work for tangible speech that does not take place over the Internet and, therefore, has a pinpointed location, for cases involving Internet speech, the analysis is akin to trying to fit a round peg into a square hole. Traditionally, on campus speech included only speech that took place on school grounds during school hours. (17) Therefore, some lower courts have mischaracterized the Internet speech issue as one of geography, and in determining whether the speech occurred on or off campus, have focused on whether the speech was made over the student's computer, at the student's home. (18) Focusing on the location of the Internet speech is futile, given the distinct nature of online speech. (19)

This Note proposes a new standard for student speech cases involving Internet speech. (20) Due to the unique characteristics of the Internet, I suggest eliminating the first prong of the analysis that asks whether the speech is on or off campus, and concentrating instead on the impact of the online speech. The proposed standard would refine Tinker's forecast of the substantial disruption test by incorporating the factors of whether the likelihood of disruption is high and whether the type of disruption poses severe harm to the school environment. This Note will focus on whether and when a school district may discipline a student for creating a parody profile of a school official on an off campus computer when the speech does not disrupt the school environment.

Part I of this Note provides an historical summary of student speech and the First Amendment. Part I.A discusses the history of the First Amendment. Part I.B discusses the Supreme Court cases involving student speech. This Part provides a background for subsequent lower court decisions. Part II examines the current conflict in the lower courts and looks at how these courts have approached the issue of when schools may discipline speech where disruption did not result. This Part will analyze the approach taken by courts in cases dealing with tangible, off campus speech, such as newspaper speech, and in cases dealing with Internet speech. Part II.A analyzes non-Internet speech that does not have a substantial disruption on the school environment. Part II.B analyzes cases concerning online student speech. Part III argues that courts should shift their focus away from strictly applying the Tinker standard, and toward the adoption of a new rule that is more applicable to cases involving the Internet. The new standard states that a school may punish a student for his or her speech only if the type of speech poses great harm to the school environment and the likelihood that such speech will result in substantial disruption is great. This proposed test sets a higher bar for schools in their ability to punish student speech, and therefore avoids a chilling effect on students' First Amendment right to free speech.

1. THE FIRST AMENDMENT, THE INTERNET, AND THE SUPREME COURT'S LIMITED JURISPRUDENCE ON STUDENT SPEECH

   1. The First Amendment

      The First Amendment states that "Congress shall make no law ... abridging the freedom of speech." (21) The heart of this Amendment has been described as the "ineluctable relationship between the free flow of information and a self-governing people." (22) Protection of free expression exists to encourage the flee exchange and dissemination of ideas. (23) The benefits society reaps from the unrestricted flow of ideas outweigh the costs society endures by receiving deplorable ideas. Generally, courts have zealously guarded the right to free speech.

      Nevertheless, this right is not absolute. For example, certain types of speech can be regulated if they are likely to inflict unacceptable harm. These narrow categories of unprotected speech include "fighting words," (24) speech that incites others to imminent lawless action, (25) obscene speech, (26) defamatory speech, (27) and "true threats." (28)

   2. The Supreme Court's Jurisprudence on Student Speech

      The Supreme Court has provided minimal guidance to lower courts regarding when a public school student's First Amendment right to free speech prevails. (29) The three decisions on this matter provide standards that cannot be properly applied to student online speech. (30) Nonetheless, an introduction to the Supreme Court precedent provides a useful backdrop to better understand the lower courts' attempts to analyze the issue of whether student online speech may be disciplined by the school.

      In Tinker, a group of students in Des Moines, Iowa were suspended for wearing black arm bands to school to publicize their opposition to the Vietnam War. The students brought an action against the school district for violation of the First Amendment. In its majority opinion, the Supreme Court famously stated: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or...