With the rise of technology, came the fall of the stereotypical “schoolyard bully.” Instead of taunting victims on the playground and stealing lunch money, today’s bullies are launching full-blown social media smears of their victims. With the large-scale accessibility of technology and the comforting façade of anonymity, online communication platforms have created a forum for a harsher and more devastating means of bullying—cyberbullying. Policing this new form of bullying has created interesting, and somewhat complex legal issues for schools. Students have the right to a safe and secure learning environment. However, students are also afforded the First Amendment right of free speech. Therefore, in the context of bullying, schools must balance these respective rights.
The United States Supreme Court has shed little light on the issue of policing cyberbullying; however, it has given some guidance in defining the rights of students within schools. This legal landscape began with the Court’s landmark case of Tinker v. Des Moines Independent Community School District, where the Court found students maintain First Amendment protection on and off school campuses, subject to two exceptions: (1) conduct that “materially and substantially disrupt the work and discipline of the school,” or (2) conduct that “impinge[s] upon the rights of other students.” Although the Court defined students’ First Amendment rights within schools in Tinker, its subsequent rulings limited this right by leaving certain student on-campus speech unprotected. This was until the Court issued its most recent decision on the matter—Mahanoy Area School District v. B.L.
In Mahanoy, instead of further limiting students’ free speech rights, the Court found schools have less authority to restrict students’ online, off-campus speech when compared to their authority to restrict students’ on-campus speech. The case arose from a student posting the following on her social media after not making her desired role on her school’s varsity cheerleading team: F*** school f*** softball f*** cheer f*** everything.” The Court ultimately determined that the student’s speech was protected, as it did not fall under the First Amendment exceptions established by the Court’s previous rulings. However, more importantly, the Court addressed the broader issue of whether schools may regulate off-campus student speech. Refusing to adopt a bright line rule, the Court found that schools may regulate some off-campus speech, but made it clear this authority is limited compared to its authority to regulate on-campus speech. While not explicitly defining what off-campus speech school may regulate, the Court mentioned that the “serious or severe bullying or harassment targeting particular individuals” may be one example in which schools may restrict students’ off-campus speech.
In light of this ambiguous ruling, it has been left to the lower courts to determine which situations warrant the restriction of students’ off-campus speech. The United States First Circuit Court of Appeal was the first to examine the issue in Doe v. Hopkinton Public Schools. There, students shared unconsented photos of another student via Snapchat and made demeaning comments related to the student’s appearance, voice, anatomy, and family members. The court found that such speech was not protected under the First Amendment, as the comments made in this case were direct attacks at a specific individual. Likewise, the United States Ninth Circuit Court of Appeals in Chen Through Chen v. Albany Unified School District found a student’s off-campus speech voicing “racist and violent themes against specific Black classmates” was not protected under the First Amendment, as such comments bore a significant nexus to the school. However, unlike the First and Ninth Circuit Courts of Appeal, the United States Tenth Circuit Court of Appeals in C1.G on behalf of C.G. v. Siegried found a student’s online speech toting anti-Semitic ideology to be protected under the First Amendment, noting the student (1) was off campus when he made the post, (2) did not reference the school or target a specific individual, and (3) used his own cellphone to create the post to a private audience of his immediate friends.
Although some courts have examined the issue, the ability of schools to police cyberbullying remains unclear. While the inquiry is largely dependent on the jurisprudence and interpretation of each individual circuit, it appears that in situations where off-campus speech is directly targeted at a specific individual or bears a significant connection to the school, a school may act to limit or restrict such speech. This is significant, as it is imperative that schools know and understand all students’ rights in order to properly and effectively police off-campus cyberbullying.
Melanie V. Slaton is a partner and Taylor Roos an associate at Hall Booth Smith, P.C.
