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The Internet and the First Amendment on Campus

Lee E. Bird, Vice President for Student Affairs, Oklahoma State UniversityMary Beth Mackin, Dean of Students, University of Wisconsin-Whitewater

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First Amendment to the United States Constitution

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

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It can hardly be argued that either students or

teachers shed their constitutional rights to freedom of speech or

expression at the schoolhouse gate.

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)

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“The mere dissemination of ideas—no matter how

offensive to good taste—on a state university campus may not be shut off in the

name alone of ‘conventions of decency.”

- Papish v. Board of Curators of the Univ. of Missouri, 410 U.S. 667 (1973)

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Public/Private Distinctions• United States Constitutional law applies only to public colleges and universities.

• Constitutional provisions or state statute may apply to private colleges (e.g. Leonard Law in California).

• Internal rules and statements (typically printed in campus literature) asserting a strong First Amendment/Academic freedom culture, may be viewed as contractually binding.

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Forum Analysis: public forum and designated public forum Traditional Public Forum

Public streetsSidewalksParksNewspaper

Designated Public ForumInstitutionally designated public areasMain campus walkwaysGreen spaces“Free speech” zones

Time, Place and Manner RestrictionsLimitations subject to strict scrutiny

Institutions must be able to articulate a compelling interest in limiting speechMust be content neutralLimitations must be narrowly tailored to serve a significant government interest and Leave open ample alternatives for expression

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Limited Public Forum

Locations that the institution has opened for expressive activity with a content-neutral limited purpose.

Time, place, manner restrictions

Limitations must be governed by a written use policy. Regulations must be reasonable and viewpoint neutral. Policies limiting expression must be narrowly tailored.Institutions may give priority for space to college groups over non-college groups

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Non- Public Forum

Non-public forum Campus locations not open for

public expression by either tradition or designationClassroomsCampus officesResidence hall lobby

Time/Place/Manner Restrictions

May limit any expression not consistent with the purpose of the forumLimitations must be rationally related to the purpose, nature and specific circumstances of the forumSchools may make distinctions in limitation based on subject matter or speaker identity as long as the regulation is reasonableRegulations must be viewpoint neutral

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Internet First Amendment Issues in Higher Education

Perceived defamation issues CyberbullyingCyberstalkingThreatening others onlinePosting the personal information of others onlineHurtful internet polling Posting embarrassing or hurtful images online

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Categories of Unprotected SpeechThreatIncitement of Imminent Lawless ActionRacial and Sexual Harassment Fighting WordsObscenityDefamation

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True Threat“Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”

Virginia v. Black, (01-1107) 538 U.S. 343, (2003)

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The Incitement Test (Brandenburg)

The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Brandenburg v. Ohio, 395 U.S. 444,

(1969)

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Sexual harassment under Title lX

“ Sexual harassment is unwelcome conduct of a sexual nature. Sexual harassment can include unwelcome sexual advances, requests for sexual favors and other verbal, nonverbal or physical conduct of a sexual nature that is sufficiently severe or pervasive to deny or limit a student’s ability to participate in or receive benefits and services or opportunities in the school’s program.”

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Racial harassment under Title VI

“Unwelcome speech or conduct based on a person’s race, color, or national origin that is so serious (i.e. severe, persistent, or pervasive) as to deny or limit a student’s ability to participate in or benefit from the educational program….”

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“Fighting Words” Chaplinsky v. New Hampshire (1942)

… words which by their very utterance inflict injury or tend to incite an immediate breach of the peace…

Not upheld by the Supreme Court since 1942

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The “Miller Test” for Obscenity(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest,(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

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V. Kim, Boston.com Dec. 14, 2009

“People don’t appreciate how much the First Amendment protects not only political ideological speech, but also personal nastiness and chatter (E. Volokh).”

“The murkiness of this area of law and educational policy has led to legal challenges across the country over school officials’ restriction on discipline of student speech (V. Kim).”

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K-12 vs. College Internet Use Distinctions

K-12 students considered children- not adultsK-12 education is compulsory not voluntaryCourts allow K-12 schools to set higher expectations for expression Courts allow greater administrative oversight of pedagogical issues in K-12Distinctions made for on-campus and off-campus behavior

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Different Standards used by various courts to address Internet speech

“Tinker standard”- substantial disruption test Doniger v. Niehoff (2008) Layshock v. Hermitage School District (2011) Kowalski v. Berkeley County Schools (2011)

True threat standard J.S. v. Bethlehem Area School District (2002) Murakowski v. University of Delaware (2008) D.J.M. v. Hannibal Public School District #60 (2011)

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Standards continued“Fraser standard” ruling lewd language in K-12 setting not permitted

“Hazelwood standard” allowing greater administrative judgment (censorship) in the selection of age appropriate newspaper article topics in the K-12 setting

The courts in Tatro and Murakowski ultimately relied on adherence to appropriately crafted university rules

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Supreme Court

Inconsistency within Circuit rulings and inconsistent rulings between circuits typically serves as an invitation to the Supreme Court to intervene and provide guidance. To date the Supreme Court has rejected student internet cases.

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Tyler Clementi Higher Education Anti-Harassment Act of 2011 Requires an institution to include in its annual security report a statement of policy regarding harassment that includes: 1. a prohibition of harassment of students by other students, faculty, and staff; 2. a description of its programs to prevent harassment;3. a description of the procedures that students should follow if harassment

occurs; and 4. a description of the procedures it will follow once an incident of harassment has been reported.

Definition of "harassment“ includes certain conduct undertaken through technological means that limits a student's ability to benefit from the IHE's programs.

Definition also includes conduct that creates a hostile or abusive educational environment at the school.

Removes “objectively offensive” from the definition of harassment commonly used in peer-to-peer harassment