Lessons from the 'Lord of the Flies': protecting students from Internet threats and cyber hate speech.

William Golding's seminal work, Lord of the Flies, he uses the plight of a group of British school children marooned on a deserted island to explore the nature of the human condition and the reflection of individual personality on society. Free from societal restraints in the form of adult supervision, a small group of school children quickly degenerates into shocking savagery. While Golding used this work to explore the defects in society as being traceable to defects in individual human nature, this same behavior can be seen today in the manner in which school children, freed from adult supervision by the anonymity of the Web, can quickly turn on one another with the same type of savagery demonstrated by Jack and the tribe toward Simon and Piggy.

A middle school student in Costa Mesa, CA, faced expulsion for allegedly posting graphic threats against a classmate on the popular MySpace.com Web site. Twenty of his classmates were suspended for viewing his postings. While police were investigating the boy's comments about his classmate at TeWinkle Middle School as a possible hate crime, some parents questioned whether the school overstepped its boundaries by disciplining students for actions that occurred on personal computers at home after school hours. The purpose of this article is to examine the legal and perhaps moral obligation of schools to protect students from cyberthreats and hate speech from other students and the boundaries of their ability to do so.

MySpace.com is an online virtual-community run by Rupert Murdoch's News Corp., which has approximately 60 million members. The Web site advertises itself as "an online community that lets you meet your friends' friends. Create a private community on MySpace and you can share photos, journals and interests with your growing network of mutual friends! See who knows who, or how you are connected. Find out if you really are six people away from Kevin Bacon." (1) The site promises anonymity and offers a virtual location where "Friends who want to talk Online, Single people who want to meet other Singles, and Matchmakers who want to connect their friends with other friends" can meet. (2) Unfortunately, the combination of 60 million members with virtual anonymity has drawn huge interest from the teenage population. Far from the prying eyes of parents and teachers, students seek to live a virtual life far different from their own. However, the anonymity of the site has also removed many of the traditional safeguards and protections for underage participants. (3) Individuals taking advantage of this anonymity range from child molesters (4) to advertisers (5) to students attacking those who are different from them. (6)

According to news reports, on January 3, 2006, a 12-year old middle school student in Costa Mesa, Ca, used MySpace.com to create a social group whose name was "I hate (girl's name)" and included an expletive and an anti-Semitic reference to her. The boy who created the group invited friends to join by sending them a colorful psychedelic picture. If they accepted it, they were added to his group. Five days later, after approximately 20 other students had joined the group, the student sent a message to group members that directed them to a nondescript folder, which included a posting that allegedly asked: "Who here in the (group name) wants to take a shotgun and blast her in the head over a thousand times?" The posting was discovered by a TeWinkle teacher who was browsing MySpace.com and reported it to administrators. (7) On February 15, 2006, school officials suspended for two days each the 20 students who had viewed the Web site and sought to expel the creator. According to Bob Metz, district Assistant Superintendent of Secondary Education, "[w]ith what the students can get into using the technology we are all concerned about it." Assistant Superintendent Metz justified the suspensions because the incident involved student safety. Some parents, however, have questioned whether the school overstepped its bounds and may have violated these students' free speech rights by disciplining them for actions that occurred on personal computers at home and after school hours. (8) The purpose of this article is to examine the legal framework to be applied to school disciplinary actions that are the result of cyberspeech. This article will then examine the application of this legal framework to a variety of factual scenarios ranging from off-campus nondisruptive speech to on-campus disruptive speech. The article concludes with an examination of true threat jurisprudence and the application of this doctrine to student cyberspeech claims.

THE TINKER/BETHEL/ HAZELWOOD TRILOGY

Any examination of student free speech rights under the First Amendment must necessarily start with the seminal Supreme Court case Tinker v. Des Moines Independent Community School District. (9) In Tinker, students wore black armbands to school to protest the Vietnam War. The school banned the armbands under its dress code, and the students challenged the school's policy based upon its impact on their First Amendment rights. One of the key factors in the challenge was that, although the school banned the black armbands under its dress code and disciplined the students wearing that symbol, it did not ban other potentially disruptive symbols, such as a black cross that obviously evoked images of Nazi Germany. (10) In overturning the discipline, the Supreme Court found that wearing black armbands was expressive conduct protected by the First Amendment and that, absent the showing of a compelling interest, the school could not ban the armbands. In doing so, the Court crafted a two-pronged test. First, a court must determine whether student speech is protected under the First Amendment. In considering whether such speech is protected, the court considers whether the student intended to convey a particularized message and whether that message is indeed the type of speech entitled to protection. (11) Second, the court must consider whether there is a reasonable likelihood that those who viewed it would understand this message. If both of these conditions are met, then the speech is entitled to constitutional protection, and the court must determine whether the school can demonstrate a sufficiently compelling interest to permit it to restrict the protected speech.

Although it is true that "students do not shed their constitutional rights at the school house gate," (12) it is also true that the constitutional rights of students in public schools "are not automatically coextensive with the rights of adults in other settings and must be 'applied in light of the special characteristics of the school environment.'" (13)

Using the Tinker framework, schools may discipline students for exercising free speech rights even if that speech is protected if the school can establish that "there were facts that reasonably led them to forecast substantial disruption of or material interference with school activities or if school officials can prove that the activity did in fact materially and substantially disrupt the school." (14) In Tinker, the Supreme Court found that the armbands were intended to and did in fact convey a particularized antiVietnam war message and thus constituted speech protected by the First Amendment. The Supreme Court then determined that the school had failed to show that the mere wearing of armbands at school posed a serious threat of material and substantial interference with the operation of the school; therefore, there was no compelling interest in restricting the speech, and as a consequence the suspensions were overturned. (15)

In contrast to Tinker is Bethel School District v. Fraser. (16) In Bethel, a student was disciplined for giving a nominating speech for a fellow senior that referred to the candidate in terms of "an elaborate, graphic and explicit sexual metaphor in front of 600 students." The Supreme Court, while reaffirming the continuing vitality of Tinker, nevertheless indicated that student expressive rights were not co-extensive with those of adults. It refused to protect student speech when it deemed that speech to intrude upon the work of the school. The court made it clear that vulgar, indecent, or disruptive speech can be punished and prohibited in classrooms, assemblies, and other school-sponsored educational activities, as such speech runs counter to the educational objectives of schools. (17)

The final case in the trilogy is Hazelwood School District v. Kuhlmeier. (18) The Hazelwood case posed a slightly different question. Unlike Tinker and Bethel, where the issue was whether the school had to tolerate certain types of student speech, the question in Hazelwood was whether the school was forced to actively promote such speech. A student newspaper sought to publish articles on sexual activities and birth control, but upon review, the principal removed the articles based upon the fact that he felt that the sexual references were inappropriate for younger students and because they contained some personally identifiable information. The students sued, alleging that removing the articles was a prior restraint that violated their First Amendment rights.

The Supreme Court disagreed, distinguishing Tinker by stating: "The question whether the First Amendment requires a school to tolerate particular student speech--the question we addressed in Tinker--is different from whether the First Amendment requires a school affirmatively to promote particular …