November 20, 2008
TECHNOS QUARTERLY Summer 1995 Vol. 4 No. 2
Right-of-Way on the Information Superhighway: Access and Policy Issues for Schools
By Joan M. Mazur
Precedents for future legal cases involving the K–12 environment, censorship, and electronic communication could be set in pending cases that involve adults. Individual schools and school districts should formulate and implement use policies now that limit provider liability and minimize student exposure to inappropriate material.
“Students do not leave their rights at the school-house gate.”
Tinker v. Des Moines, 1967, p. 12
Tinker v. Des Moines (1967), the seminal Supreme Court ruling on free speech and expression rights, contained this now familiar quote regarding students' rights. It bears directly on any discussion of questions surrounding the rapidly evolving issue of censorship and pupils' access to the Internet and other forms of electronic communication. However, one of the difficulties associated with attempting to formulate a coherent policy on censorship in cyberspace is that all of the key court cases involving student speech predate widespread access to electronic communications. For example, speech cases such as Tinker, upholding the rights of Vietnam-era protesters, and Hazelwood School District v. Kuhlmeier, affirming the right of school administrators to control student publications, were adjudicated prior to the burgeoning of Internet bulletin board services and technology reform initiatives (such as Goals 2000 and the High Performance Computing Act of 1991 that created the National Research Education Network, NREN) that encourage schools to use the Internet as an educational resource.
Rather than attempt a comprehensive examination of legal issues related to Internet access, this piece focuses on two key issues that must be considered if we are to define the problem and frame district policy solutions.
- We must consider the difficulties surrounding definitions of obscenity and censorship that might limit freedom of expression.
- We must consider the responsibility of carriers who provide users with access to information from myriad network resources, many of them not explicitly designed for educational use with students in grades K–12.
The Eye of the Beholder
What material is obscene, and when is censorship justified? Forty-one states
have statutes that prohibit the distribution of obscene materials to minors.
Rights under the First and Fourteenth Amendments have never extended to obscene
material. But who determines what is obscene? Supreme Court Justice Potter
Stewart declined to state a comprehensive definition of obscene materials
but said of pornographic material, “I know it when I see it” (Jacobellis
v. State of Ohio, 1964). As his statement infers, determining obscenity
has rightly been relegated to localities because of the recognized differences
among community values (Miller v. California, 1973). In Miller, conditions
for determining “obscenity” were met if the average person, applying
current community standards, would find that the materials were offensive,
designed to arouse immoral or lustful desire, or appealed to “prurient”
interests.
On the Internet, the process of defining obscene materials based on community standards is complicated because materials originating in one locale are distributed to another. In a recent Tennessee case, Robert and Carleen Thomas were convicted on 12 obscenity charges when a Tennessee postal inspector subscribed to their adults-only, California-based bulletin board service and downloaded images judged to be obscene in Tennessee. The Thomas case aside, the general spirit of Miller v. California (1973) still provides the guiding tenet for determining obscenity, though even this issue has been clouded by the character of electronic network distribution and access.
Determining whether material is obscene is but one key factor related to policy that may limit minors' access to these materials. The other factor is determining who is responsible if unacceptable or unsuitable materials find their way into the hands of or onto the computer screens accessed by school children. Not surprisingly, in the context of rapidly evolving Internet legal issues, the responsibility of carriers—on-line services like America Online or CompuServ—that provide access to Internet information is unclear. However, control over information is the central issue. Common carriers such as phone companies have been judged free of liability for damages since they have no control over the information transmitted via their service. In contrast, print publications that exert full editorial control over published works are fully liable for damages resulting from printed work. A recent court case has upheld these trends with reference to electronic carriers. In a 1991 ruling, Cubby v. CompuServ, a federal trial court ruled in favor of the carrier in a defamation claim resulting from an item in a newsletter distributed via CompuServ. The court noted that CompuServ had neither knowledge nor reason to know of the contents of the newsletter. Although CompuServ had the right to edit the newsletter, its liability was limited because of the impracticability of reviewing every item posted using its service.
Some providers choose to exercise more control over access than do the commercial on-line services. Recently, for example, Carnegie Mellon University in Pittsburgh made headlines when its administrators dropped from its servers certain bulletin boards that contained sexually explicit materials. The university cited its worry that because it had formal knowledge of the offensive images, it risked criminal liability for carrying the materials (because first-year college students are often minors). Several Internet watchdog groups, such as the Electronic Freedom Frontier, believe Carnegie Mellon overstepped its responsibility and chose censorship when a “sensible-use” policy would have sufficed to solve the problem.
For school districts, formulating enforceable policies that address the suitability of materials and carrier liability issues is critical. Even in the current climate of evolving legal frameworks, it is possible to make a policy that limits the school's exposure to liability and realizes the enormous educational potential of information networks. Teachers, parents, administrators, and service providers can work together to delineate responsibility and the kinds of access that will be acceptable and appropriate for students in their district.
A reasonable district policy can be formulated that places responsibility on the user and apprises parents of the possible hazards of Internet access and their right to limit their child's access to those materials. In such a policy statement, parents and students would be defined as the responsible parties and arbiters of suitable materials. Teachers would be defined as supervisors of young children at school, and access to files by system operators and school officials would be clearly stated. A brief and understandable user agreement and parent permission form should be signed and returned to the school where it can be kept on record.
To date, no cases involving school districts and obscenity and liability issues are pending. There are, however, cases involving adults and obscenity, privacy, and First Amendment rights that may foreshadow cases and rulings for public schools. What is essential in this atmosphere of emerging legal precedent is that school districts work with community stakeholders to draft and implement network use policies that offer access to the vast educational resources of electronic networks, protect minors from unsuitable materials, and provide districts and carriers with relief from liability.
Joan Mazur, assistant professor of instructional design and technology at the University of Kentucky in Lexington, is involved in technology implementation in schools throughout the state of Kentucky. Her current research and design efforts center on the use of multimedia cases and networks to foster teacher professionalism and educational reform. Her most recent research with veteran teachers using Internet videoconferencing tools indicates enormous potential to promote innovative pedagogy.
Click here to access additional articles for this FORUM: