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The Federal Judges Association and the Federal Bar Association invite students to consider the question: “In light of the First Amendment, what type of social media posts should schools be allowed to punish as cyberbullying?” Your essay submission or video submission should:

  1. State your proposed rule;
  2. Present your best argument in support of the rule;
  3. Discuss whether it matters where the speech is sent or received; and,
  4. Cite relevant sources, statutes, cases and/or historical events that support your position.

Should Schools Discipline Off Campus Student Speech?

“Speech” includes seeking, receiving and sending information and ideas through any media. “Cyberbullying” is harm inflicted by speech through the use of computers, cell phones, or other electronic devices. “Stalking” involves repeated and persistent unwanted communications and contacts such as telephone calls, letters or e-mails, among other conduct. The First Amendment provides, in part, “Congress shall make no law …abridging the freedom of speech.”

The First Amendment does not prevent a school district from disciplining a student for giving a speech using obscene language at a school event. See Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). School districts can control the content of a school newspaper. See Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). Conversely, the government cannot compel a student to make a political pledge that the student disagrees with such as the Pledge of Allegiance. See West Virginia Board of Education v. Barnette, 319 U.S. 624, 627-29 (1943).

In Tinker v. Des Moines Independent, 393 U.S. 503 (1969), students planned to wear black armbands at school as a silent protest against the Vietnam War. The principal warned students that they would be suspended if they wore the armbands to school because the protest might cause a disruption in the learning environment. Despite the warning, some students wore the armbands and were suspended.  The case ultimately went to the Supreme Court which held that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Further, school officials could not prohibit in class or out of class speech without a reasonable likelihood that the speech ”…materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” The dissent noted that school officials, acting on a legitimate interest in school order, should have broad authority to maintain a productive learning environment.

In Mahanoy Area School District v B.L., a student who failed to make the varsity cheerleading squad posted two images on Snapchat expressing her frustration with the school. She was off-campus when she posted the images but the school punished the student for the posts. The case went to the U.S. Supreme Court which held that schools normally cannot punish a student for off campus speech criticizing a school’s rules. However, cyberbullying or other forms of negative speech directed at an individual student may be different… “bullying and severe harassment are serious (and age-old) problems, but these concepts are not easy to define with the precision required for a regulation of speech.”

Historical Milestones

1791: First Amendment ratified

1973: First handheld mobile phone demonstrated by John F. Mitchell.

1977: Home computers marketed

1981: First portable computer developed

1992: First text message sent from computer to cell phone reading “Merry Christmas”

1997: First social media site, SixDegrees, allows users to upload profiles and contacts

2003: Myspace founded and ushers in modern era of social media

2006: Passing of Megan Meier; later led to first cyberbullying criminal indictment

2007: Ordinance passed in Dardenne Prairie, Missouri, prohibiting harassment utilizing electronic medium (Municipal Code §201.030)

2008: H.B. 6123 introduced to amend Chapter 41, Title 18, U.S. Code with respect to cyberbullying

2010: Instagram launches as a photo-sharing platform


Sources

  1. Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)
  2. Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)
  3. Mahanoy Area School District v B.L., 594, U.S. (2021)
  4. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
  5. West Virginia Board of Education v.Barnette, 319 U.S. 624, 627-29 (1943)
  6. Alison V. King, Constitutionality of Cyberbullying Laws: Keeping the Online Playground Safe for Both Teens and Free Speech, 63 Vanderbilt L.R. 845, 884 (2019). https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1425&context=vlr  Accessed November 4, 2021.
  7. Carrie Specter, Can schools punish a student for a social media post? Stanford scholars discuss an imminent Supreme Court ruling,  Stanford News, June 9, 2021.  https://news.stanford.edu/2021/06/09/can-schools-punish-student-social-media-post/ Accessed October 27, 2021.
  8. Kisa Hagen, Supreme Court Sides With Cheerleader in First Amendment Social Media Case, U.S. News & World Report, June 23, 2021. https://www.usnews.com/news/national-news/articles/2021-06-23/supreme-court-sides-with-cheerleader-in-first-amendment-social-media-case  Accessed October 27, 2021.
  9. Andrew Chung, Cheerleader prevails at U.S. Supreme Court in free speech case, Reuters, June 23, 2021. https://www.reuters.com/legal/litigation/us-supreme-court-hands-victory-cheerleader-free-speech-case-2021-06-23/  Accessed October 27, 2021.
  10. UN Special Representative of the Secretary-General on Violence Against Children, Bullying and Cyberbullying, https://violenceagainstchildren.un.org/content/bullying-and-cyberbullying-0  Accessed November 5, 2021.
  11. U.S. Department of Health and Human Services, https://www.stopbullying.gov/resources/laws/federal  Accessed October 27, 2021.
  12. Centers for Disease Control and Prevention, Preventing Bullying, https://www.cdc.gov/violenceprevention/youthviolence/bullyingresearch/fastfact.html  Accessed October 27, 2021.
  13. Rebecca Roman, When Free Speech Isn’t Free: The Rising Costs of Hosting Controversial Speakers at Public Universities, 2020 University of Chicago Legal Forum 451, 475 (2020). https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1677&context=uclf
  14. PBS WHYY, “Why Do Kids Bully? | Spot on Science, https://kera.pbslearningmedia.org/resource/why-do-kids-bully-video/wviz-spot-on-science/ (video and transcript)
  15. Benjamin A. Holden, Tinker Meets the Cyberbully: A Federal Circuit Conflict Round-up and Proposed New Standard for Off-Campus Speech, 28 Fordham Intell. Prop. Media & Ent. L.J. 233 (2018).  https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1690&context=iplj
  16. John O. Hayward, Anti-Cyber Bullying Statutes: Threat to Student Free Speech, 59 Clev. St. L. Rev. 85 (2011). https://engagedscholarship.csuohio.edu/clevstlrev/vol59/iss1/5
  17. Megan Meier Cyberbullying Act, H.R. 6123, 110thCong. (2008). https://www.congress.gov/bill/110th-congress/house-bill/6123?s=1&r=42  Accessed November 5, 2021.
  18. Ordinance 1228, The Offenses of Harassment and Cyber-Harassment within the City of Darden Prairie, Missouri, November 21, 2007. https://cms9files.revize.com/dardenne//Permits-Applications-Forms/General/Cyber%20Harassment%20Ord.pdf  Accessed November 5, 2021.

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