Maybe not the worst nightmare, but no school principal (or other school administrator) wants to be the subject of a social media blitz. Students today do not just use cyberspace to bully other students. Any school official can be a target. On one level this is nothing new. Crude words scribbled on a bathroom stall about Principal Jones have been around since there were bathroom stalls in schools. Before that they were probably carved into the walls of outhouses. There are, however, at least three differences: you have to go into the bathroom to see the graffiti; bathroom graffiti can be covered or removed and the act of creating the graffiti occurs at school.

The importance of these differences should not be minimized. A message posted on the internet may be in the public domain for anyone and everyone to see. Even if it is only available to those who are invited to view, many more people can view a Facebook page than can fit into a bathroom stall. More importantly, anyone invited to view can forward images to an unlimited number of people. Once all of the copies of the message are “out there”, it is impossible to get them all back or deleted. Finally, the message can be generated from anywhere. Other students at the school who make up the target audience can be reached even when they are not all gathered together within the school walls.

Courts have tended to ignore these differences and analyze challenges to the discipline of students who engage in high tech graffiti in traditional First Amendment terms. Posting words or images on the internet is almost certainly speech. Unless it fits into one of the recognized exceptions (for example speech which is profane) whether the speech is protected (meaning discipline is not allowed) will be analyzed according to the test set up in Tinker v. Des Moines, 393 U.S. 503 (1969) nearly 40 years ago. The test is whether the speech is disruptive to the educational process.

Two cases out of Pennsylvania suggest that a school district’s ability to punish a student for cyber speech which occurs outside of school is limited. In both Layshock v. Hermitage School Dist., 650 F. 3d 205 (3rd Cir. 2011) and J.S. v. Blue Mountain School Dist., 650 F. 3d 915 (3rd Cir. 2011), the Third Circuit ruled that students could not be disciplined for creating fake web pages on social media sites that put school administrators in a bad light because the sites were not created on campus, during school hours or using school computers. In both cases, students accessed school websites to appropriate photographs, but this was deemed to be an insufficient connection. In neither case was there any disruption of school.

What are you to do? First, take steps to have the message taken down, then conduct a thorough investigation. Find out who created the website or sent the message. Did the author use any school resources to create or distribute the message? Was it sent to all other students or only a small number? What happened after the initial publication, did it get forwarded or accessed by school computers? Did other students who were not original recipients find out about the message at school? Did the message get printed and posted on school hallways/bulletin boards or the proverbial bathroom stall? Don’t rely on hearsay that everyone is talking about the site or make the assumption that they are. If the culprit is disciplined, you will be called upon to produce hard evidence of an adverse impact on the educational process, if the discipline is challenged.

Understandably, you may be reluctant to do investigation where what you are essentially asking is whether your students saw the embarrassing information about you on the internet. Anyone who did not is sure to go looking as soon as they leave your office. Again, take steps to have the message taken down as part of your initial inquiry into who did it. Contact the internet host and let them know about the situation. This is where courts must rethink Tinker, at least to the extent of realizing that it takes much longer for a few people wearing black armbands to disrupt a school by the mere wearing than it does for an internet message to go “viral.” Courts do not like to decide cases on what might happen, but at the speed which speech is transmitted today, the difference between what might happen and a school in chaos is the touch of a key.