FEATURE ARTICLE
On/off-campus lines now blurred by Internet speech by Steve Puiszis
Steven Puiszis is a partner with
ditor’s note: The answers to
sive activities invades the rights of
student’s Web page that targeted a
the following questions, sub-
others.
fellow student for ridicule and harass-
E
mitted to the author by The Journal,
The Second Circuit, when apply-
ment. The court in Kowalski rec-
Hinshaw &
are based on his article “‘Tinkering’
ing Tinker’s substantial disruption
ognized that schools have a
Culbertson LLP
with the First Amendment’s Protec-
test, asks if it was reasonably fore-
“compelling interest” in regulating
in Chicago,
tion of Student Speech on the Inter-
seeable that a student’s off-campus
speech that involves “student harass-
where he serves
net,” which is being published in
expression might reach the school
ment and bullying.”
as deputy gener-
Volume 29, Issue 2 of the John Mar-
and, if so, would it foreseeably cre-
The Eighth Circuit also applied
al counsel, heads
shall Law School’s Journal of Com-
ate a risk of substantial disruption
a reasonable foreseeability approach
the firm’s Elec-
puter and Information Law.
within the school.
in its Hannibal Public School Dis-
tronic Discovery Response Team and is a member of its business litigation practice and school law groups.
8
Tinker v. Des Moines Indepen-
The Third Circuit, on the other
trict decision, which addressed threat-
dent Community School District set
hand, has rejected a foreseeability
ening instant messages between two
a precedent for student First Amend-
approach. In its Blue Mountain School
students. While the Eighth Circuit in
ment rights in 1969. How have recent
District decision, the Third Circuit,
Hannibal held that the instant mes-
federal circuit decisions interpreted
sitting together to hear the case,
sages constituted “true threats,” and
that decision regarding Internet
specifically observed that speech
as a result did not constitute pro-
speech?
originating off-campus is not trans-
tected speech, the court also applied
We have to recognize that the
formed into on-campus speech sim-
Tinker and held that it was reason-
Supreme Court’s student speech deci-
ply because it foreseeably makes its
ably foreseeable that the student’s
sions, including Tinker, involved dif-
way into a school. The concurring
threatening messages would be brought
ferent modes of communication that
judges in Blue Mountain, however,
to the attention of school authorities
arose in markedly different contexts
were willing to apply Tinker when a
and create a risk of substantial dis-
than a student’s use of the Internet.
student’s off-campus Internet speech
ruption.
It should come as no surprise, then,
was intentionally directed toward
that the circuit courts have taken
a school.
It also is important to note that the Fifth and Eleventh circuits have
somewhat divergent approaches as
The Fourth Circuit, like the Sec-
broadly interpreted the Supreme
to when discipline can be imposed.
ond, would allow a student to be dis-
Court’s “Bong Hits 4 Jesus” decision,
By and large, these decisions have
ciplined when it was foreseeable that
Morse v. Frederick, as granting school
focused on Tinker’s substantial dis-
the student’s Internet activities would
officials greater authority to address
ruption test, and have generally failed
reach the school via computers, smart
threatening speech in order to pro-
to consider another aspect of Tinker,
phones or other electronic devices.
tect students from potential harm.
which allows discipline to be imposed
The Fourth Circuit in Kowalski v.
Those courts base that conclusion
when a student’s speech or expres-
Berkley County Schools addressed a
on Justice Alito’s opinion, which in
THE ILLINOIS SCHOOL BOARD JOURNAL / SEPTEMBER-OCTOBER 2012