First Amendment considerations

NEA Today, Oct 1998 by Chmielewski, Cynthia M

To date, the courts haven't tackled the question whether students have a First Amendment right to access inappropriate Web sites while using school-provided computer network services.

The few existing "cyberlaw" decisions deal with adult free speech rights.

For example, in Urofsky v. Allen, university professors challenged a Virginia law prohibiting state employees from using government computers to access sexually explicit materials on the Internet.

Such materials included art and literature with sexual themes, and resources on sexual disease and sexual assault. A federal court held that the law violated the professors' free speech rights.

Similarly, in Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, adult patrons challenged a Virginia public library's use of X-Stop software to block pornography on all library computers. The patrons argued that the library's use of the software was like "removing books from the shelves" of the Internet and a violation of the First Amendment.

In a pre-trial decision, the federal court ruled that the library can't use the blocking software unless it meets the highest level of constitutional scrutiny-a ruling that places a tough legal burden on the library.

Significantly, the court also emphasized that its ruling applied only to public libraries, not public schools-and that the ruling involved the rights of adults, not minor students. According to the court, "[T]he factors which justified giving high school libraries broad discretion to remove materials. . . are not present in this case."

This distinction is important because the Supreme Court has made clear in other contexts that public schools are special places and "the constitutional rights of students in public school[s] are not automatically coextensive with the rights of adults in other settings."

So whether students will be able to wave the First Amendment to gain unreined access to Web sites remains to be seen. For now, it seems prudent to hold students to the letter of the "law" laid down in a good acceptable use policy.