Enough Tinkering with Students' Rights: The Need for an Enhanced First Amendment Standard to Protect Off-Campus Student Internet Speech

AuthorJustin P. Markey
PositionAssociate, Roetzel & Andress, LPA, Akron, Ohio; J.D. (2006), The University of Akron School of Law; B.S.B.A in Accounting and Masters of Accounting (2003), The Ohio State University
Pages129-157
ENOUGH TINKERING WITH STUDENTS’ RIGHTS:
THE NEED FOR AN ENHANCED FIRST AMENDMENT
STANDARD TO PROTECT OFF-CAMPUS STUDENT
INTERNET SPEECH
JUSTIN P. MARKEY, ESQ.
INTRODUCTION
“The students, all girls, were made to remove the remarks from their
Internet diaries, or blogs, and suspended [from their school] for three days
last month.”1 This punishment resulted from three students, acting like
typical teenagers, deciding to “flame” their teacher online.2 The offending
Copyright © 2007, Justin P. Markey.
Associate, Roetzel & Andress, LPA, Akron, Ohio; J.D. (2006), The University of
Akron School of Law; B.S.B.A in Accounting and Masters of Accounting (2003), The Ohio
State University.
1 Sandra Davie and Liaw Wy-Cin, Schools Act Against Students for ‘Flaming’
Teachers on Blogs, ASIA MEDIA, Sept. 27, 2005, http://www.asiamedia.ucla.edu/
arti cle-s outhea stasia .asp?p arenti d=304 94. “A blog (an abridgment of the term web log)
is a website, usually maintained by an individual, with regular entries of commentary,
descriptions of events, or other material such as graphics or video.” Wikipedia, Blog,
http://en.wikipedia.org/wiki/Blog (as of May 22, 2008 18:21). The content of a blog may
range in scope from personal online diaries to news, media programs, and corporations. Id.
2 Davie and Wy-Cin, supra note 1. “Flaming is the hostile and insulting interaction
between Internet users. Flaming usually occurs in the social context of a discussion board,
Internet Relay Chat (IRC) or even through e-mail [or blog].” Wikipedia, Flaming
(Internet), http://en.wikipedia.org/wiki/Flaming_%28Internet%29 (as of May. 22, 2008,
00:21 GMT).
An Internet user typically generates a flame response to other posts
or users posting on a site, and such a response is usually not
constructive, does not clarify a discussion, and does not persuade
others. Sometimes, flamers attempt to assert their authority, or
establish a position of superiority over other users. Other times, a
flamer is simply an individual who believes he or she carries the only
valid opinion. This leads him or her to personally attack those who
disagree. Occasionally, flamers wish to upset and offend other
members of the forum, in which case they can be called “trolls”. Most
often however, flames are angry or insulting messages transmitted by
people who have strong feelings about a subject.
(continued)
130 CAPITAL UNIVERSITY LAW REVIEW [36:129
comments include calling the teacher a “‘prude’ for disciplining a student
for wearing a too-short skirt and a [f]rustrated old spinster [who c]an’t
stand to see attractive girls.”3 With increasing frequency, school districts
in the United States seek to punish its students for Internet speech that is no
more offensive than the comments listed above.4 What may surprise some
is that the United States seems to offer no greater student Internet speech
protection than Singapore, the location of the events described above.
The Internet is an invaluable source; it can provide information and
opinions instantly to a worldwide audience.5 Fortunately (or
unfortunately), it is also a forum by which public school students can vent
their personal animosity towards students, teachers, or school
administrators.6 In fact, a student-based forum to lampoon or harass school
members can be created by the student in one to two minutes.7 Despite this
small time commitment by the student, the effects of speech broadcasted
Some equate flaming with simply letting off steam, though the
receiving party may be less than pleased. Similarly, a normal, non-
flame message may have elements of a flame—it may be hostile, for
example—but it is not a flame if its author seriously intends to advance
the discussion.
Id.
3 Davie and Wy-Cin, supra note 1.
4 See STUDENT PRESS LAW CENTER, SPLC GUIDE TO OFF-CAMPUS WEB SITES, (2004)
http://www.splc.org/legalresearch.asp?id=74. See also David L. Hudson, Jr., Censorship of
Student Internet Speech: The Effect of Diminishing Rights, Fear of the Internet, and
Columbine, 2000 L. REV. M.S.U.-D.C.L. 199, 206 (2000) (stating that government’s initial
censorship of emerging media is a common theme throughout history, tracing back to the
first censorship bureaus created in wake of Guttenberg’s printing press).
5 It is estimated that the Internet is growing at a 50% annual rate and close to 100% of
public schools in the United States have internet access. Martha M. McCarthy, Internet
Censorship: Values in Conflict, 183 EDUC. LAW. REP. 299 (2004).
6 For an example of such non-constructive criticism of school officials and
students, see Justin Neal’s website, GREENTREE, http://web.archive.org/web/
20050504093830/http://www.angelfire.com/comics/greentree/comic.htm (last
visited May. 16, 2008). After creating this website, Neal was suspended by his school. See
Neal v. Efurd, Civ. No. 04-2195 (W.D. Ark. Feb. 18, 2005). Neal sought the aid of the
courts and his suspension was eventually overturned. Id. at 28.
7 I created my own “Blog,” Markey’s Manifesto in approximately two minutes. This
monumental achievement in student speech can be found at
http://justinmarkey.blogspot.com (last visited May 16, 2008).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT