In the wake of several recent high-profile tragedies, several states have enacted or toughened laws aimed at suppressing the phenomenon of cyberbullying. On one hand, new legislation often represents the much-needed updating of outdated stalking and harassment laws to reflect the prevalence of online communication. Although such laws can suffer from the same line-drawing or overbreadth concerns common to all attempts to criminalize expressive behavior, they present no unique First Amendment issues. Many types of behavior which have fallen under the rubric of “cyberbullying,”—stalking, true threats, broadcasting lewd pictures of minors—are clear crimes which receive no First Amendment protection. For example, New York has long had a law making anyone who “intentionally causes or aids” another person’s suicide guilty of manslaughter, but a new law proposed in the state legislature would specifically enumerate “cyberbullying” as a culpable form of this conduct.
There are more serious First Amendment questions, however, arising from legislation aimed at curbing less egregiously “criminal” forms of cyberbullying by minors, especially state laws which direct public schools to monitor and interdict online bullying done outside the school environment by students.
States’ motives for using school authorities as a means to exert greater control over cyberbullying are fully understandable. Public schools are uniquely positioned among government organs to influence the behavior of children. More importantly, the phenomenon has been most pronounced and alarming among middle school and high school-aged teenagers—a new and more virulent outlet for traditional forms of bullying fueled by the added communicative power and anonymity afforded by the internet. Several of the laws have appeared as direct responses to recent cyberbullying cases. Roughly a year after Rutgers student Tyler Clementi’s suicide, New Jersey passed a comprehensive “Anti-Bullying Bill of Rights” aimed at making schools more responsive to the problem. Massachusetts introduced new legislation in the wake of the highly publicized Phoebe Prince case in 2010. Most recently, the proposed new laws in New York have arisen in response to the death of Buffalo high school student Jamey Rodemeyer.
The new Connecticut law, passed this June, can serve as an example of the trend towards using schools to bring into effect anti-cyberbullying initiatives—and the possible perils of taking this approach too far. In the first place, the statute widened the definition of “bullying,” which can include any act which, among other things, causes “physical or emotional damage” to a student, “creates a hostile environment at school” for a student, or “substantially disturbs the education process.” Schools are now directed to respond to bullying—including and especially online bullying—no matter where it physically takes place and no matter when, even beyond the school year.
The first and most obvious concern with this kind of law is a general one: that its expansive definition will lead schools to monitor student speech above and beyond the proper reach of school authorities or other government actors. This is one of the approaches taken in her criticism of the law by Connecticut ACLU director Sandra Staub, who noted that mandating schools to respond to something as broadly defined as “emotional harm” will surely lead to problems with fairness in enforcement.
Enforcement problems aside, however, the biggest open question about cyberbullying laws that focus on schools is whether they cross the poorly defined line between students’ speech rights in school and their rights (and those of their parents) “outside of school.” The Connecticut law, like many other state statutes, is transparently tailored to bring itself within the letter of the standard on school speech outlined by the Supreme Court more than 40 years ago in Tinker v. Des Moines Independent Community School District (1969). In Tinker, still treated by courts as the foundational case on the issue, the Court announced that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” but nonetheless held that schools’ restrictions of student speech may be acceptable to the extent necessary to “avoid material and substantial interference with schoolwork or discipline.”
In subsequent years, the Court has not always limited its analysis to the physical sphere of the “schoolhouse gates.” In the “Bong Hits 4 Jesus” case (Morse v. Frederick), the court upheld the right of a school to discipline a student for displaying a drug-related banner at a school-sponsored, off-campus event, but did so on the apparently limited grounds that the drug message posed a “special danger to the physical safety of students.” In the limited number of lower court decisions that have tried to address online bullying in the context of school speech, however, the courts have primarily stuck with the Tinker “substantial interference” standard and its distinction between on- and off-campus speech.
The problem with applying Tinker to cyberbullying, of course, is that the internet frustrates any attempt to draw geographical lines around the types of speech that can create classroom disturbances. In common sense terms, internet activity conducted in a student’s home seems to be “off-campus” speech—and it is clear under the traditional standard that a school could not punish a student for a private comment that took place entirely outside the school setting. Understandably, however, courts have exerted efforts to find a nexus with the physical territory of the school; a Pennsylvania district court found that a school could discipline a student for creating a website at home (called “teacher sux”) since it was accessed and printed off by other students within the school. The Second Circuit went even further and found that substantial disruption could be created whenever the student should have foreseen internet speech could be accessed on school grounds. (Wisniewski v. Bd. of Education). When taken to its extreme, this logic could lead to the conclusion that schools can monitor all student internet speech which might be accessed on-campus and if so would cause a disturbance to classroom discipline—rendering Tinker’s supposed geographic distinction between school and non-school speech meaningless.
Of course, administrators’ discretion and the narrower substantive focus of cyberbullying laws on speech which creates emotional harm or creates a hostile environment would temper schools’ reach in practice. Nonetheless, both the new statutes and courts’ attempts to stretch Tinker to fit cyberbullying create the possibility that schools could cast too wide a net and intrude on the protected speech that even students enjoy in their capacity as private persons. The Tinker standard is simply not well suited to the problems of student internet speech; for the sake of both legislators and school administrators, greater Supreme Court guidance seems to be necessary. One possible approach, which builds on the narrow holding of Morse, would abandon the outdated “schoolhouse grounds” conception of student speech and instead focus more explicitly on the school’s interest in protecting its students from certain recognized classes of harms. If an inane drug banner (“Bong Hits 4 Jesus”) justifies schools exerting their regulatory reach outside school grounds because of a “special danger,” then a fortiori so does the immense harm caused by cyberbullying.
This approach would require abandoning the “substantial disturbance to classroom discipline” standard—overly broad in this context—but would enable schools to regulate speech emanating from outside the school if it falls into a more narrowly defined category. Rather than rendering Tinker a nullity by stretching its language beyond reason, schools would be empowered to define the harm more precisely. Some courts have sought to broaden the holding of Morse in this way in the few years since it was decided, but a wholesale change away from the convoluted Tinker-type analysis will likely not come until the Supreme Court itself addresses the outmoded standard. Any Morse-based approach would bring its own problems of overreach, but it might help states and schools produce more precise and forthright definitions of the scope of their authority to handle the issue.
