Ever since the Supreme Court, in Tinker v. Des Moines, determined that students wearing black armbands and antiwar buttons as a form of protest was protected speech, controversies about First Amendment issues have divided school boards, student bodies, teachers, and parents.
Immediately after the landmark 1969 decision, courts across the country expanded student speech rights in a flurry of First Amendment cases. So, it might seem that student journalists seeking to publish their work on a school web site would have a good case for limiting school oversight.
School districts are rapidly expanding the use of computers and internet access in the classroom, and many schools have their own web sites with pages dedicated to student activities such as sports and extracurricular clubs. One slick site developed by students at Maize High School in Maize, Kansas allows you to download and play a rendition of the fight song.
It was only natural that students would want to publish the school newspaper, the Express, on the internet. But, after receiving complaints from numerous parents concerned about pictures and names of their children appearing on the web site, the online Express was derailed.
The school board tried to compromise with the students, offering to allow a redacted version (carrying only names or pictures of students whose parents had given permission) or to put an uncensored version on a password-protected web site. The students rejected these ideas, along with an offer to publish the paper on the district’s intranet, which was not connected to the world wide web.
Beyond wanting the world to view their creation, did the students have a legal argument under the First Amendment for expanding their publication to the internet?
Although there is no case directly on point, the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier gives the school board’s position the nod. In that case, a school principal censored two school newspaper stories on teen-age pregnancy and divorce, because he thought the privacy of several teen-age girls would be compromised. The court held that student publications are part of the educational curriculum and schools have considerable control and discretion over the content.
Although most schools faced with student web publishing are concerned about privacy issues (as they should be), there is one aspect of the Kuhlmeier case that should also be carefully considered. The main reason given by the court for excluding a student newspaper from First Amendment protection was a finding that most school newspapers are not public forums. In other words, unless a student publication is published for the public, it is exempt from free speech rights associated with public forums.
But what about a student paper published on the internet? Certainly, there is no forum more public than the world wide web. If I were a student editor and a principal tried to censor the school paper (after allowing it to be put on a public web site), I would have a strong claim that the school district had waived its right to control the contents of the publication by virtue of making it into a public forum.
Therefore, for both privacy and public forum considerations, I would strongly advise school districts that are considering including a student newspaper or other publication as part of the school’s internet web site to think twice. Limiting access by password or keeping the student press confined to a private intranet could save you from an embarrassing and potentially expensive First Amendment lawsuit.
Maize High School