Steven Puiszis is a partner with Hinshaw & Culbertson LLP in Chicago, where he serves as deputy general counsel, heads the firm’s Electronic Discovery Response Team and is a member of its business litigation practice and school law groups.

Editor’s note: The answers to the following questions, submitted to the author by The Journal, are based on his article “‘Tinkering’ with the First Amendment’s Protection of Student Speech on the Internet,” which is being published in Volume 29, Issue 2 of the John Marshall Law School’s Journal of Computer and Information Law.

Tinker v. Des Moines Independent Community School District set a precedent for student First Amendment rights in 1969. How have recent federal circuit decisions interpreted that decision regarding Internet speech?

We have to recognize that the Supreme Court’s student speech decisions, including Tinker, involved different modes of communication that arose in markedly different contexts than a student’s use of the Internet. It should come as no surprise, then, that the circuit courts have taken somewhat divergent approaches as to when discipline can be imposed. By and large, these decisions have focused on Tinker’s substantial disruption test, and have generally failed to consider another aspect of Tinker, which allows discipline to be imposed when a student’s speech or expressive activities invades the rights of others.

The Second Circuit, when applying Tinker’s substantial disruption test, asks if it was reasonably foreseeable that a student’s off-campus expression might reach the school and, if so, would it foreseeably create a risk of substantial disruption within the school.

The Third Circuit, on the other hand, has rejected a foreseeability approach. In its Blue Mountain School District decision, the Third Circuit, sitting together to hear the case, specifically observed that speech originating off-campus is not transformed into on-campus speech simply because it foreseeably makes its way into a school. The concurring judges in Blue Mountain, however, were willing to apply Tinker when a student’s off-campus Internet speech was intentionally directed toward a school.

The Fourth Circuit, like the Second, would allow a student to be disciplined when it was foreseeable that the student’s Internet activities would reach the school via computers, smart phones or other electronic devices. The Fourth Circuit in Kowalski v. Berkley County Schools addressed a student’s Web page that targeted a fellow student for ridicule and harassment. The court in Kowalski recognized that schools have a “compelling interest” in regulating speech that involves “student harassment and bullying.”

The Eighth Circuit also applied a reasonable foreseeability approach in its Hannibal Public School District decision, which addressed threatening instant messages between two students. While the Eighth Circuit in Hannibal held that the instant messages constituted “true threats,” and as a result did not constitute protected speech, the court also applied Tinker and held that it was reasonably foreseeable that the student’s threatening messages would be brought to the attention of school authorities and create a risk of substantial disruption.

It also is important to note that the Fifth and Eleventh circuits have broadly interpreted the Supreme Court’s “Bong Hits 4 Jesus” decision, Morse v. Frederick, as granting school officials greater authority to address threatening speech in order to protect students from potential harm. Those courts base that conclusion on Justice Alito’s opinion, which in their view constitutes the “controlling” opinion in Morse. On the other hand, both the Third and Seventh Circuits view Morse as narrowly decided, and the Seventh Circuit in its Nuxoll decision observed that Justices Alito and Kennedy “joined the majority opinion not just the decision and by doing so they made it the majority opinion not merely, as the plaintiff believes (as does the Fifth Circuit) a plurality opinion.”

Please explain the two different “prongs” involved in the Tinker decision as they now relate to harassment, bullying and cyberbullying?

Typically, when we think of Tinker, we think of its substantial disruption test. Because cyberbullying typically targets a single student or discrete group of students, demonstrating substantial disruption may be difficult to establish. However, Tinker also held that schools can discipline speech that “invades the rights of others.”

Since Tinker was originally decided, the Second, Third, Sixth, Eighth and Ninth circuits have mentioned Tinker’s “rights of others” prong. It was the basis of the Eighth Circuit’s decision in Hazelwood, before it went to the U.S. Supreme Court. However, because the Supreme Court held that schools could exercise editorial control over school-sponsored publications, the Court in Hazelwood specifically noted that it was not addressing whether the Eight Circuit had “correctly construed” Tinker’s “rights of others” prong.

Protecting the “rights of others” is an underused aspect of Tinker. By definition, speech that constitutes harassment, bullying or cyberbullying is speech that would seemingly invade the rights of another student and, thus, would fall under Tinker’s second prong. There is no constitutional right to be a bully or to abuse or intimidate other students. Given the potential for Title IX liability in this context for deliberate indifference to student-on-student harassment, Tinker’s “rights of others” prong can provide the means to address this aspect of student Internet speech.

Substantial disruption should not be required to invoke this aspect of Tinker. Otherwise, there would have been no need for the Court in Tinker to mention speech that invades the rights of others. Mere teasing and name calling would not normally be sufficient to trigger this aspect of Tinker. However, when one student’s speech or expressive activities on the Internet is severe enough that it impairs, or predictably could impair, another student’s educational performance, or the student’s ability to interact with his or her peers at school, or the student’s safety at school, school officials and their counsel should consider invoking Tinker’s rights of others prong.

How does the Internet pose unique challenges for schools as well as the courts?

For school districts, Internet speech poses several unique problems. Unlike other forms of media, the Internet permits free and unfettered discussion of ideas with practically no regulation or oversight. The Internet removes the spatial distance between the persons posting and viewing content on the Web. There are no geographic or territorial limits on the Internet.

Today, any student with a computer can post information on the Internet that can be accessed anywhere in the world almost instantaneously. Social networks encourage the development of affinity groups that can target individuals in the school community. While schools can attempt to block access to various social networking sites on school computers, students can use a number of online tools and applications to circumvent a school district’s attempt to block access to these types of sites.

The Internet has expanded schools’ boundaries and blurred when, where and how students can enter the schoolhouse gate. A two-dimensional view of a school district’s educational setting and limits of its authority ignores the modern reality of education in light of online collaborative educational tools and the proliferation of Web-based educational programs being offered to students of all ages.

The concurring judges in the Third Court’s decision in Layshock recognized that, with the proliferation of wireless Internet access, smart phones, tablets, laptop computers and social networking sites like Facebook and Twitter, any effort to tie the disciplinary authority of school officials to the physical boundaries of a school is “a recipe for serious problems in our public schools.”

Does it make any difference where the message originated or where it was read?

When we lived and worked in a paper world, courts used the on-campus/off-campus distinction as a bright line for when a school administrator could discipline a student for his or her speech or expressive activity. With Internet speech, that approach is untenable.

Internet speech can reach students wherever they are so long as they are carrying a laptop, a tablet or smart phone. Communications via the Internet can reach into a school in ways not possible even 10 years ago. Courts have been slow to pick up on the distinguishing features of Internet speech, but there seems to be a growing awareness of some of these distinctions in several of the latest federal circuit opinions addressing Internet speech.

The concurring judges in the Third Circuit’s Blue Mountain decision recognized that whether a student’s Internet speech can be regulated should not solely depend on where the student was located when the speech was originally generated.

How does the school district determine “material and substantial disruption” as referenced in Tinker?

This can be one of the more difficult aspects of Tinker to navigate. It requires school districts and their counsel to collaboratively focus on marshaling the evidence to support a school district’s disciplinary decision.

While school districts need not wait until substantial disruption occurs before they act, a disciplinary decision cannot be based on speculation, conjecture or an unsubstantiated fear of future disruption. School administrators must be prepared to present facts supporting their conclusion that substantial disruption was reasonably likely to occur.

The type of facts relevant to the issue will vary depending on both the content of the student’s speech and the context in which it occurs. However, prior acts of violence, threats or confrontations between students involving the same type of speech or expressive activity are highly relevant. Evidence concerning how the learning environment in classrooms was disrupted or the impact on the district’s administrative offices should be presented. The numbers of students involved or the number of administrative or teaching hours impacted should be presented if it is favorable.

Obviously, the greater the impact on classroom performance, the greater number of students and/or the more egregious nature of the speech, the better a district’s chances that the disciplinary decision will be upheld.

Also don’t overlook the nature of the speech or expressive activities involved. Remember that “true threats” are not protected speech, and even if a student’s speech does not qualify as a true threat, where the safety of a student or members of the student body is involved, courts are less likely to second-guess an administrator’s decision to discipline or suspend another student.

Please define what is meant by a “true threat” and how that might be interpreted in a school setting?

The Supreme Court in Virginia v. Black defined a true threat as the communication “of a serious expression of intent to commit an act of unlawful violence on a particular individual or group of individuals.” An objective test is applied when determining if a statement meets the true-threat test. The Seventh Circuit evaluates not what a speaker intended, but whether the recipient could have reasonably regarded the statement as a true threat.

The Eighth Circuit in its Hannibal decision found one student’s instant messages to another student in which he discussed getting a gun and shooting other students qualified as a true threat. Several other circuits have held statements made in student essays or in a student’s notebook describing the student shooting a teacher and/or other students also qualified as true threats.

Because a true threat does not constitute protected speech, the First Amendment does not provide any impediment to disciplining a student for making these types of threatening statements.

What’s the difference for free speech rights for high school students and those for elementary students, or is there any?

The Seventh Circuit has recognized that the younger the student, the more leeway school administrators have in regulating their speech. In other words, speech that may be inappropriate for a third grader would not be viewed as lewd or vulgar for high school students. Like with any other First Amendment issue, a context-specific approach has to be taken involving student speech.

What about offensive speech, such as those issues raised by the breast cancer awareness bracelets?

The breast cancer awareness (I love boobies) bracelets pose a difficult question for school districts, and the answer will likely vary depending on the age range of the particular student body. At least two federal district court decisions address a school’s ban of these bracelets and the courts reach contrary holdings. In one case out of Pennsylvania, the court held banning the bracelets violated a student’s First Amendment rights. However, a district court in Wisconsin rejected identical arguments and concluded the ban was permissible under the First Amendment. Clearly, this is an example where context has to be considered.

These bracelets would not be considered vulgar or lewd in a high school setting. If an elementary or middle school decides to ban these bracelets, it should consider allowing some other means for the students to get out their message about breast cancer awareness.

When addressing vulgar or lewd speech, school districts should remember that the Supreme Court in Frasier limited that exception to speech that occurred in a school setting, and it is an open question whether Internet speech that is lewd or vulgar but does not meet the test for obscenity can be a basis for student discipline.

What should the district’s position be about student Internet speech that is not directed at the school or a member of the school community? How does such off-campus speech find its way to school?

Anything posted on the Internet can potentially make its way onto a school campus simply by students bringing their smart phones, tablets or laptops to school. This question strikes at a split in the circuits concerning when Tinker’s substantial disruption can be applied to student Internet speech.

Most of the circuits when addressing this issue have applied a reasonable foreseeability test. However, the concurring judges in the Third Circuit would only permit Tinker to be applied when Internet speech is intentionally directed toward the school. A number of lower courts have explained that school administrators should not view themselves as censors of the Web.

Unfortunately for school districts in Illinois, the Seventh Circuit has not addressed this precise issue. Until the Supreme Court addresses the issue and provides further guidance, where a student’s Internet speech does not target the school, another student or a member of the school’s staff, and does not invade the rights of others, school districts should consider using the student’s inappropriate speech as a teaching moment. Bring it to the attention of the student and his or her parents, explain why you believe it is inappropriate and let the student’s parents take the disciplinary action.

How can board policy help ensure that the district is acting within its scope regarding these First Amendment issues?

Before a school district can take disciplinary action against a student for misconduct involving the misuse of social media or the Internet, students should have some prior notice that the activity is prohibited, thereby affording the student with an opportunity to conform his or her conduct to the school district’s code of conduct. Thus, a school board’s disciplinary policy should clearly define and prohibit bullying, cyberbullying, harassing, threatening and intimidating speech or behavior irrespective of how it is communicated.

In Illinois, school districts have an obligation to intervene with students whose conduct “puts them at risk for aggressive behavior, including without limitation, bullying, as defined in the [district’s disciplinary] policy.” 105 ILCS 5/10-20.14(d). Including cyberbullying in your school district’s definition of bullying provides school administrators with a basis to impose appropriate discipline for the use of social media or the Internet to intentionally intimidate, harass, threaten or otherwise bully other students. A reference to speech or the use of the Internet or social media that invades the rights of others should be incorporated into the policy.

Consider explaining that students can be disciplined for their Internet speech or the use of social media that targets other students for harassment, intimidation or bullying. Students should be warned that their use of the Internet or social media that could foreseeably reach the school and could foreseeably create a risk of substantial disruption or that invades the rights of others at school can provide a basis for discipline.

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