May 7, 2014
“Or does it need to?” might be a better question. It goes without saying that adults engage in bullying in the workplace, community and online. The rate of teenagers doing the same has risen with the growth of social media. Cyberbullying is defined as the repeated use of digital devices to harm another person. State legislatures, courts, law enforcement and school districts continue to wrestle with this global phenomenon. However, setting limits on free speech is an uphill battle.
Since the landmark Tinkerdecision in 1969, students are recognized as individuals with protectable rights. Student speech, whether verbal, digital or symbolic, is protected by the First Amendment although not absolute. There are limits that apply to threats, obscenity and “fighting words.” See, Tinker v. Des Moines Independent Community School District, 89 S.Ct. 733 (1969).
The suicide of thirteen-year-old Megan Meier in 2006 was the result in part of online bullying by an adult neighbor. Referred to as a bullycide, it led to the introduction of the Megan Meier Cyberbullying Prevention Act in Congress in 2008. The bill failed to generate enough support to become law. Some states, however, took up the cause and enacted legislation addressing cyberbullying or what most states refer to as “electronic harassment.” Every state has laws covering the underlying acts of online bullying: intimidation, stalking, harassment and threatening. The need for a federal law is questionable.
The Supreme Court has addressed student free speech and expression on four separate occasions. It has yet to grant certiorari in a case involving off-campus digital speech by a student. Considering its reasoning and pronouncements in these four decisions, it may be unnecessary to hear a cyber-speech challenge.
In Tinker, the Supreme Court created the “disruption test” in recognizing the right to student expression that does not upset the educational environment or violate the rights of others. The symbolic wearing of black armbands to protest the Vietnam War was acceptable speech. “Undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”
Seventeen years later the Court created an exception to Tinker’s disruption test. Student speech that was obscene or lewd could be regulated by school authorities and subject to discipline. Matthew Fraser’s sexual references in a class nominating speech resulted in a three-day suspension. “. . . a high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students.” See, Bethel School District v. Fraser, 106 S.Ct. 3159 (1986).
Then in 1988, the Court considered school censorship of student speech. It approved a school’s decision to pull articles about divorce and teen pregnancy from the school newspaper written by student journalists. “A school must be able to set high standards for student speech.” See, Hazelwood v. Kuhlmeier, 108 S.Ct. 562 (1988). Schools may censor expression that is “poorly written, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences.”
And finally, in 2007, the Court approved discipline of a student whose speech (displaying a banner reading “Bong Hits 4 Jesus”) was seen as encouraging the use of drugs. They ruled that public school officials may censor speech that is “reasonably viewed as promoting drug use.” See, Morse v. Frederick, 127 S.Ct. 2618 (2007).
Five cases of student online speech and the authority of schools to discipline off-campus behavior have been litigated in the federal courts and reached the Supreme Court. All involved a manner of cyberbullying. As early as 2002, the Third Circuit stated “There is no constitutional right to be a bully…Schools are generally permitted to step in and protect students from abuse.” See Sypniewski v. Warren Hills Regional Bd. Of Educ., 307 F.3d 243 (2002)
In the first case, Aaron Wisniewski5 created an icon that depicted a gun pointing at a head with the words “Kill Mr. VanderMolen” underneath. Mr. VanderMolen was Aaron’s English teacher. Aaron was suspended for a semester and the Second Circuit Court of Appeals upheld the discipline. See, Wisniewski v. Board of Education of Weedsport Central School District, 494 F.3d 34 (2007). Avery Doninger was class secretary at her high school. Out of frustration over a cancelled event, she referred to school officials as “douchebags” in her personal blog. She was prohibited from running for class office in her senior year. The Second Circuit agreed with the school’s response to her posts. See, Doninger v. Niehoff, 642 F.3d 334, 132 S.Ct. 499 (2011).
Jill Snyder was an eighth grade student when she created a fake profile of her principal. Her comments were sexual in nature and the school gave her a ten-day suspension. See, J.S. v. Blue Mountain School District, 650 F.3d 915, 132 S.Ct. 1097 (2012). Justin Layshockwas a senior when he created his parody of the principal. He was also disciplined with a ten-day suspension. See, Layshock v. Hermitage School District, 650 F.3d 205, 132 S.Ct. 1097 (2012).
The Third Circuit ruled in Snyder and Layshock’s favor and their school districts sought review of the decisions. Kara Kowalskicreated a website that ridiculed a classmate and encouraged others to join in. Her five-day suspension was upheld. See, Kowalski v. Berkeley County Schools, 652 F.3d 565 (2011), cert den. 132 S.Ct. 1095 (2012).
All of these Circuit Court decisions were based on one or more references to Tinker and its progeny.
The Supreme Court has stated numerous times that the only check on its own exercise of power is its sense of self-restraint. The Court has a “long considered practice not to decide any constitutional question in advance of the necessity for its decision.” The Court has also commented on education issues as an area of law best left to state and school district resolution and not federal oversight.
A petition for certiorari was filed by either the student or school district in each of these five cases. Between 2008 and 2012, the petitions were denied without comment. The quartet of Tinker, Fraser, Hazelwood and Morse is the foundation for student speech from which schools, students, courts and law enforcement can take their guidance. It does not appear necessary for another exception to be carved out based on a new method of communication. Case precedent and state laws are in place to deal with digital behavior.