Cyberbullying and the First Amendment

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Table of Contents

First Amendment Arguments and Responses
Required Actions
References

Cyberbullying, like other forms of bullying, is an increasingly serious issue, particularly in schools. Laws and regulations exist intended to prevent students from falling victim to it. However, as the process often happens outside of the school and does not necessarily involve any of its facilities, it can be challenging to detect and protect students from it. When detected, it requires action from the school faculty, which may include legal action. Fundamentally, case law, such as the precedent of Morse v. Frederick (2007), states that a “student’s First Amendment rights are circumscribed in light of the special characteristics of the school environment.” Nonetheless, several precedents establish arguments related to the protection of student online speech that may constitute cyberbullying.

First Amendment Arguments and Responses

Several key arguments can be brought up in a cyberbullying case. The primary argument that involves the First Amendment directly was made in the Tinker vs. Des Moines (1969) case, where the Supreme Court ruled that students’ actions that interfere with the disciplinary requirements of a school are not protected by the First Amendment. More recently, Currently, Bittner (2013) identifies three key themes with legal arguments related to cyberbullying: the geographical approach, the substantial disruption approach, and the relational/duty to the student approach. Under the geographical approach, the defendant can argue that since the event in question occurs online and outside of school property, it is covered by the First Amendment and the school has “no authority to discipline the student” (Bittner, 2013, p. 177). Similar argumentation was used in Layshock v. Hermitage Sch. Dist (2011), where the court ruled in favor of the student. However, the message’s content, intent, and the possible effect on the school environment determine the relevant response, as well.A defendant in a cyberbullying case can argue that the speech on a Facebook page does not constitute a threat. However, following from the precedent established in Tinker vs. Des Moines (1969), a counterargument exists that a potential disruption of a school’s instructional process by off-campus activity can be grounds for legal action (Bittner, 2013). Furthermore, the reasoning in Bethel Sch. Dist. v. Fraser (1986) and Hazelwood Sch. Dist. v. Kuhlmeier (1988) is that a school is obligated to provide certain protections to their students and faculty members, and, therefore, may limit a student’s expression to do so. Therefore, if it can be proven that the student’s messages can cause harm, including psychological harm and harm to academic performance, to another student, violate privacy, or interfere with the school’s function and environment, the courts may be justified to rule against the defendant.

Required Actions

According to the Board Policy of LA County School District and California State statutes, school staff should immediately intervene to stop the incident of bullying. In the case of cyberbullying, this involves investigation and documenting the activity and identifying “specific facts or circumstances that explain the impact or potential impact on school activity, school attendance, or the targeted student’s educational performance” (California School Boards Association [CSBA], 2012, BP 5131.2(d)). Furthermore, if a social networking site or service was used for bullying, a request should be filed with the site or service in question, requesting that the offending material is removed and the bullying student’s social networking privileges suspended (CSBA, BP 5131.2(d)). Disciplinary measures against the offending student may include suspension and expulsion (CSBA, AR 5144.1(d); Los Angeles Unified School District, 2018). During the course of the investigation, the involved students’ parents may be notified, as appropriate (CSBA, BP 5131.2(c)). In general, these steps are aimed at minimizing harm and restoring school discipline.

References

Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986).
Bittner, M. L. (2013). Beyond the schoolhouse gate: Students First Amendment speech rights in the digital age. The Clearing House, 86, 174-178.
California School Boards Association (2012). Board Policy.
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988).
Layshock v. Hermitage Sch. Dist., No. 07-4465 (3d Cir. 2011).
Los Angeles Unified School District (2018). 2018-2019 Parent Student Handbook. Los Angeles, CA.
Morse v. Frederick, 551 U.S. 393 (2007).
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

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Cyberbullying and the First Amendment

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