The Bloggers' FAQ on Student Blogging addresses legal issues arising from student blogging. It focuses on blogging by high school (and middle school) students, but also contains information for college students.
Do Public School Students Have Free Speech Rights under the First Amendment?
Absolutely. Both minors and adults have First Amendment rights, and according to the Supreme Court, public school students don't "shed their constitutional right to freedom of speech or expression at the schoolhouse gate." See Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). In the Tinker case, the Court said that public high school students had a First Amendment right to wear black armbands to class in symbolic protest of the Vietnam War. "Students in school as well as out of school are 'persons' under our Constitution," the Court said, and "they are possessed of fundamental rights which the State must respect..."
But I'm a Private School Student — What About Me?
You also have First Amendment rights, but those rights only protect you from government censorship, not private censorship. As a general matter, you will receive no protection from censorship or punishment by a private school or college. See e.g. Ubriaco v. Albertus Magnus High School, No. 99 Civ. 11135 (JSM) (S.D.N.Y. July 21, 2000) (dismissing claim contesting private school expulsion for content on personal web site). However, as discussed below, some states provide private high school and college students with additional speech protections that go above and beyond the First Amendment. Furthermore, if your private school has an applicable written policy, the school must follow that policy.
Also keep in mind that even though your private school may have the right to enforce a stupid rule, that doesn't make it any less stupid. So, if your private school is going overboard in trying to squelch online speech, contact EFF. Depending on the facts, we may be able to help you publicize the problem and hopefully convince your school to be more reasonable.
Can Public Schools Censor or Punish Students' On-Campus Speech?
Yes, whether you're a minor or an adult, in high school or in college. Although the Tinker decision recognized that students have free speech rights on campus, the court also held that your free-speech rights can be limited when the speech "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." This rule is referred to as Tinker's "material disruption" standard, or the Tinker test. For example, a school can "prohibit the use of vulgar and offensive terms in public discourse" while you are on campus Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) (upholding suspension of a high-school student Matthew Fraser for a student government nomination speech "including the use of obscene, profane language or gestures.").
Can Public High School Administrators Censor What I Say in a School-Hosted Blog or Other School-Sponsored Publication?
Usually, but it depends on the facts. In Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988), the Supreme Court distinguished a school-sponsored newspaper from the armbands permitted in Tinker and allowed censorship that was "reasonably related to legitimate pedagogical concerns." This rule is referred to as the Hazelwood standard or the Hazelwood test. The Hazelwood standard applies to censorship of "school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school." "Imprimatur of the school" refers to activities that appear to be sponsored or endorsed by the school.
The Hazelwood standard is less protective of your rights than the Tinker test. However, there is one bright spot: the Hazelwood standard does not apply to publications that have been opened as "public forums for student expression," even if those publications are school-sponsored. (See next question for whether a publication is a "public forum").
Is My School-Hosted Blog a Public Forum?
A public forum is one where the student bloggers, not school
administrators, have the authority to determine the content. Whether a
school-hosted blog would be considered a public forum, and therefore
Can Public College Administrators Censor My School-Hosted Blog?
Probably not, unless justified under Tinker's "material disruption" test as described above. Courts have generally found that the protective Hazelwood standard (that allows school censorship) only applies to high schools, and censorship of a student's publication by a public college or university would amount to an unconstitutional prior restraint. See e.g. Student Gov't Ass'n v. Univ. of Mass., 868 F.2d 473 (1st Cir. 1989) and Kincaid v. Gibson, 236 F.3d 342 (6th Cir. 2001). Addressing the First Amendment rights of public college students, one federal Fourth Circuit Court of Appeals explained:
It may well be that a college need not establish a campus newspaper, or, if a paper has been established, the college may permanently discontinue publication for reasons wholly unrelated to the First Amendment. But if a college has a student newspaper, its publication cannot be suppressed because college officials dislike its editorial comment.
Joyner v. Whiting, 477 F.2d 456, 460 (4th Cir. 1973). In some states, as discussed below, state laws extend this protection to private colleges.
However, in Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005), by a vote of seven to four, the en banc federal Seventh Circuit Court of Appeal held that "Hazelwood's framework applies to subsidized student newspapers at colleges as well as elementary and secondary schools," unless the student publication is a "public forum." While the court thought the student publication at issue may very well have been a public forum, it did not decide that issue. The students have filed a petition asking the U.S. Supreme Court to overturn this misguided decision. See also FIRE's policy statement on the Hosty decision. The Seventh Circuit decision applies to federal courts in Illinois, Indiana and Wisconsin.
But Wait, These Cases Are About Student Newspapers, Not Blogs!
Yes. In the U.S. legal system, it generally takes a while for the courts to reach decisions that clarify how the law will be applied to new technologies or mediums of expression, like blogs. However, if there were a lawsuit, your attorney could argue by analogy, showing the court how blogging is similar to traditional media, and should have the same protections.
Do I Have More Protections for a Personal Blog?
Yes. In Emmett v. Kent School District, 92 F. Supp.2d 1088 (W.D. Wash. 2000), the court held that public school officials had violated a student's First Amendment rights by punishing the student for his personal website, the "Unofficial Kentlake High Home Page." The court held that "[a]lthough the intended audience was undoubtedly connected to Kentlake High School, the speech was entirely outside of the school's supervision or control." Likewise, in Flaherty v. Keystone Oaks School Dist., 247 F.Supp.2d 698 (W.D. Pa. 2003) a federal court found a public school's policy, which prohibited "inappropriate, harassing, offensive or abusive" behavior, was unconstitutional because "the policy could be (and is) read by school officials to cover speech that occurs off school premises and that is not related to any school activity in an arbitrary manner."
Sweet, my Personal Blog is Untouchable!
Not so fast. EFF believes that public schools have no right to punish or censor any speech activities conducted outside of the school gates, and the Supreme Court has yet to consider such off-campus censorship. However, some lower courts have applied the Tinker "material disruption" standard in cases concerning the personal web sites of high school and middle school students. For example, in Beussink v. Woodland School District, 30 F. Supp.2d 1175 (E.D. Mo. 1998), a federal court applied Tinker's "material disruption" standard when considering a student's web site that used vulgar language to criticize his public school and its teachers and administrators. Even though the site was created on the student's own time, with his own computer and Internet connection, the court decided that the Tinker "material disruption" test applied since a classmate viewed the site at school. While it is unfortunate that the court applied the less protective standard, in the end the student was vindicated — since there was no material disruption, the court decided that the student's First Amendment rights were violated.
Likewise, in J.S. ex rel H.S. v. Bethlehem Area School District, 569 A.2d 638 (Pa. 2002), the Supreme Court of Pennsylvania held that despite the fact that the web site was not created at school, the Tinker test applied because the site "was aimed at a specific school and/or its personnel" and was "brought onto the school campus or accessed at school by its originator." The court proceeded to hold that the public school's punishment of a student for his off-campus web site, which included an image of a teacher's face morphing into Hitler's, an image of the same teacher with a decapitated head dripping with blood, and a request that visitors contribute $20 for a hit man, was justified under the "material disruption" standard.
Better reasoned cases have looked at whether the speech was "intentionally or knowingly communicate[d]" to the students before applying Tinker's "material disruption" test to speech that originated off campus. See e.g. Porter v. Ascension Parish School Bd., 393 F.3d 608 (5th Cir. 2004).
Again, EFF doesn't think that a public school should be able to punish you for the contents of your personal blog. Nevertheless, these cases show that some courts may find even a blog created and hosted off campus to be subject to school restrictions.
So Can I Criticize Teachers on My Blog?
It depends on how you do it. Merely criticizing or insulting schoolteachers and administrators, even with vulgar language, likely will not amount to the "material disruption" required by the Supreme Court. See e.g. Beidler v. North Thurston County (Wash.) Sch. Dist., No. 99-2-00236-6 (Thurston Cty. Super. Ct. July 18, 2000) (unpublished opinion holding the First Amendment protected a student's private web site that ridiculed a school administrator), and Beussink v. Woodland School District, 30 F. Supp.2d 1175 (E.D. Mo. 1998) (student's vulgar criticisms of school on his personal blog did not rise to a "material disruption.").
However, if you publish anything that might be considered a physical threat toward a student, teacher, or administrator, a court will likely find that punishment by the school is constitutional. See J.S. ex rel H.S. v. Bethlehem Area School District, 569 A.2d 638 (Pa. 2002) (punishment of student for publishing an image of decapitated teacher and soliciting donations for a hit man on his personal blog was justified under the "material disruption" test, even though it was intended as a joke and a law enforcement investigation concluded the student was not a threat).
Similarly, although your opinions are protected by the First Amendment, publishing defamatory content (See our Guide to learn what that is) — even jokingly — may get you in trouble at school, and maybe even get you sued. Other types of speech may also violate the law and put you within reach of the school's discipline, so read further to see what legal pitfalls you should avoid.
Can I Publish Sexual Content on My Blog?
Yes, as long as it's not obscene. However, it's important to note that obscenity law applies differently to minors and adults. In Ginsberg v. New York, 390 U.S. 629, the Supreme Court found a lower standard of obscenity applies when the speech is directed toward minors: speech is obscene as to minors (or "harmful to minors") if it (1) appeals to the prurient, shameful, or morbid interest of minors, (2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors, and (3) is utterly without redeeming social importance for minors.
To steer clear of this law, avoid posting images that most people in your community would consider to be pornographic, especially "hard-core" porn that depicts actual sexual acts. However, you do have a clear constitutional right to post explicit sexual content that isn't just meant to be arousing, but is related to social issues like sexual health that are important to minors.
What Can I Do to Avoid Causing a "Material Disruption" at School with My Personal Blog?
Based on how the courts have applied the "material disruption" standard to off-campus web sites in the past, there are several things you can do to avoid a situation where the school might discipline you:
- Most importantly, don't post anything that someone at school is likely to take as a direct physical threat against school staff or students.
- Don't advocate for the immediate violation of any laws or school rules.
- Review the Bloggers' Legal Guide to understand your rights and make sure you aren't publishing anything illegal. Just as you have First Amendment rights like other bloggers, you're also subject to all the same legal responsibilities.
- Don't use any school resources to publish or view your blog.
- Don't encourage other students to read or post comments to your blog while at school — tell them to wait until they are off campus. If you see comments on your blog posted by other students during school hours, consider deleting them.
- Make sure it's clear to readers that the blog isn't sponsored by or affiliated with the school.
- Before you start cussing or bagging on people, take a second to cool off. Although we think you have a right to use coarse language to describe people at school, and several courts have agreed with us, it will still increase the chance that your school will try to punish you.
What if I Want to Advocate Civil Disobedience on my Blog?
If you want to, for example, call for a student walk-out or otherwise advocate for civil disobedience that might be considered a "material disruption" at school, or if you just want to be able to freely criticize teachers and students without fear of getting unjustly punished, you should blog anonymously.
Even if you're blogging anonymously, though, you still shouldn't publish anything illegal — first off, you don't want to break the law, and second, publishing illegal material will increase the chance that someone will try to subpoena your Internet Service Provider or your blog host for your real identity. If you are notified that someone is trying to subpoena your real identity and you don't have a lawyer, contact EFF — we may be able to help.
Do I have a First Amendment Right to Blog Anonymously?
Yes. You have a First Amendment right to speak anonymously (both online and elsewhere) and to protect your identity from subpoenas. EFF's How to Blog Safely (About Work or Anything Else) guide offers a few simple precautions to help you maintain control of your personal privacy so that you can express yourself without revealing your identity.
What if I Get Punished for My Personal Blog?
Contact your lawyer; if you don't have one, contact EFF and we may be able to help. Even those courts that have used the "material disruption" test when evaluating school punishments for off-campus web sites have usually found the punishments to be unconstitutional. In fact, some students who have been punished for their personal web sites have been able to get their school records cleared and obtain cash settlements from their schools in exchange for dropping or not bringing a lawsuit. For example, Oceanport School District school administrators in New Jersey punished an eighth grader for his website that was critical of the school, and ended up having to pay him $117,500 to settle his First Amendment lawsuit. Read the full story.
Most schools, when faced with the threat of a suit for a clearly unconstitutional punishment, will back down and clear your record.
Can I Republish Rumors on My Blog?
Not if it is false and will cause harm to someone's reputation. If you blog based on a rumor that the dude in the back row of chemistry class is a pothead, or that the head cheerleader has hooked up with half the football team, or that the principal is having an affair with the algebra teacher, and it ends up not being true, then you may have defamed those people. So if you're thinking about publishing a statement on your blog that might be false or cause harm to someone's reputation (or someone is claiming you have), check out The Bloggers' FAQ on Online Defamation Law.
What do I Need to Know About Intellectual Property Law?
The Bloggers' FAQ on Intellectual Property will help you understand your rights to link to information, quote from articles and blogs, or otherwise use someone else's creative works. It also addresses situations where you can use the brand name of a good or service in your blog. Here you can also learn about the right of publicity, which is relevant if you want to use someone's name or image in a commercial context.
Should I Blog About My Fellow Students' Private Lives?
Not without asking. People can get upset if you spread their secrets. Ask friends and family what types of stuff they're comfortable with you sharing on your blog. When you take pictures for your online photo album, be considerate and ask your subjects if they don't mind before you post it.
Ok, So Maybe It's Uncool, But Is It Illegal to Blog About Someone's Private Business?
Outing a friend who told you about things like a private medical condition or family problem is not only really lame, it also could violate "publication of private facts" law, which is designed to protect a person's private information even if the information is truthful. For more information, please read the Bloggers' FAQ on Privacy, which also addresses "intrusion into seclusion" law, which is designed to protect people's privacy and their interest in being left alone.
What About Blogging About My Own Private Life?
Keep in mind that whatever you post on a public blog can be seen by your friends, your enemies, your teachers, your parents, your ex, that Great Aunt who likes to pinch your cheeks like you're a baby, the admissions offices of schools and colleges to which you might apply, current and future potential employers, and anyone else with access to the Internet and a search engine. While you can change your blog post at any time, it may be archived by others.
So, before you reveal personal information online, carefully consider whether you want that to be public now and in the future. And keep in mind that although a school has little power to punish you for off-campus speech, it can still use your blog against you as evidence of other rules violations. For example, several underage college students were recently punished for violating their school's alcohol policy after they posted pictures of themselves drinking.
What Can I Do to Blog More Privately?
You can use password-protected blogs and other technologies that allow a more limited audience, such as "friends-only" posts. If you don't want to blog anonymously, consider blogging under only your first name, or for even more privacy, a pseudonym. This will make it harder for people to search on your name (depending, of course, on how rare your name is). You can also use a robots.txt file to stop search engines from indexing blog pages you don't want crawled.
What if My School Orders Students to Stop Blogging About School?
Contact a lawyer; if you don't have one, contact EFF and we may be able to help. Such a blanket ban at a public school would undoubtedly violate your First Amendment rights, while such a ban at a private school may violate state laws protecting student speech that are described below.
Can State Law Provide Additional Student Speech Protections?
Yes. Six states (Arkansas, California, Colorado, Iowa, Kansas and Massachusetts) have laws that provide public high school students with additional protections for their publications and other speech.
In addition, California law ensures that for both public and private high schools, "a student shall have the same right to exercise his or her right to free speech on campus as he or she enjoys when off campus." See Lovell v. Poway Unified School District, 90 F.3d 367, 371 (9th Cir. 1996).
Moreover, California law also protects students at community colleges, public universities, and private postsecondary schools, but does not apply to religious schools "to the extent that the application of this section would not be consistent with the religious tenets of the organization."
The New Jersey, Massachusetts and Pennsylvania constitutions also have been interpreted to provide some additional protection for the free expression rights of students on private campuses.
Where Else Can I Find More Information on Student Speech Rights?
USC's Online Journalism Review has an excellent summary of cases and news reports dealing with school speech issues, the Student Press Law Center provides a wide selection of legal research memos for the student press, FIRE provides an excellent Guide to Free Speech on Campus for college students, focusing on speech codes, and the ACLU provides general information on student rights.
I Work for a Public School — What Are My Free Speech Rights?
Please see our Blogger's FAQ on Labor Law, which addresses the free speech protections for employees of government institutions.
Do Many Students Keep Blogs?
Yes. According to a November 2005 study by the Pew Internet & American Life Project, 19% of online teens keep a blog and 38% read them. This represents approximately four million students who blog and is a significantly higher percentage than the adult population (7%). Another Pew study found that 68% of all teenagers have used the Internet at school.