Bullying 2.0: What about Freedom of Speech?

Free Speech and Cyberbullying

US states have different legislation around bullying, cyberbullying and free speech. This article outlines 3 Supreme Court decisions on students’ freedom of speech in general from the last few decades and several lower-court decisions that demonstrate a huge amount of variation in the law, particularly as it relates to off-campus activity.

Bullying occurring on-campus or at school events is within the school’s jurisdiction and full free speech rights are not applicable. In Bethel School District No. 403 v. Fraser (1986) the Supreme Court held that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” (p.298). But schools have trouble enforcing clear policies on off-campus activity when there’s so much ambiguity in what’s punishable. With cyberbullying, “where” is it happening? It’s an electronic incident. What if it happens at home, with no use of school materials? So schools have figured out how to make those incidents considered on-campus, and therefore under school jurisdiction. One major precedent from pre-cyberbullying days that this article discusses is the Tinker v. Des Moines School District decision of 1969 (p. 297) that found that if the acts are substantially disruptive to the school environment, they will be considered “on-campus” and therefore punishable by the school. This “substantial disruption” language is still at the center of the legal debate around cyberbullying because it can be used as a way to punish off-campus activity, and obviously “most cyberbullying occurs off-campus.” (2006 study conducted by the Opinion Research Corporation , cited p. 290)

The authors also discuss the “true threat” doctrine (p.306) that says that anything that a reasonable person would think was a threat is not protected speech.

The article describes hypothetical scenarios and plays out how they would be judged in different states, depending on the laws there, concluding that, “In an effort to protect students’ First Amendment rights and shield school districts from potential lawsuits, state legislatures should enact cyberbullying legislation allowing school administrators to discipline students for on-campus cyberbullying but not off-campus conduct, unless the off-campus cyberbullying constitutes an objective threat of violence to students, teachers, or school administrators.” (320) The authors propose more parental involvement in children’s use of ICT, including use of parental control software and discussing internet usage with other parents. (316)

This article if from a law review, so it’s very reasonable and detailed, concerned with the minutiae of various cases. I haven’t read much legal writing, but this put my brain in a pretzel trying to figure out the relationship between morality and the law. To some extent, morals are embedded in any justice system—but the law requires perfect rationalism. So it forces these feelings, beliefs, values, etc. into a logical, reasonable framework.  Square pegs, round holes. And yet, if we didn’t have a basically shared morality, we wouldn’t have the justice system in the first place...discuss.

Reference:

Beckstrom, Darryn Cathryn (2008). State Legislation Mandating School Cyberbullying Policies and the Potential Threat to Students’ Free Speech Rights. Vermont Law Review [Vol. 33:283 2008] pp 283-321 Retrieved March 10, 2011 from:

Rlawreview.vermontlaw.edu/.../14%20Beckstrom%20Book%202,%20Vol.%2033.pdf