Cyber-bullying among teens has increased dramatically in recent years, sometimes with tragic results. School districts across the nation are grappling with difficult decisions regarding their ability to regulate or discipline cyber expression by students. While there are well-established guidelines for regulating student speech, the courts are struggling to apply pre-Internet legal standards to student speech on the Internet. With no precedential guidance regarding disciplining cyber expression from the Supreme Court, the lower state and federal courts have been issuing conflicting decisions regarding the issue. The main challenge to public school regulation of student speech on social media websites arises from the fact that most cyber-bullying occurs off-campus and is non-school related, and off-campus speech is protected by the First Amendment. On July 27th, 2011 the Fourth Circuit Court of Appeals addressed this issue and concluded that school administrators have the authority to punish students for off-campus speech on the internet when it substantially interferes with the school environment.
In Kowalksi v. Berkeley Count Schools, a high school senior, Kara Kowalksi, was suspended from school for five days and not allowed to participate on the cheerleading squad for the remainder of the year for creating a MySpace.com webpage called “S.A.S.H.,” which the student claims stood for “Students Against Sluts Herpes” and which was largely dedicated to ridiculing a fellow student. Kowalski and other students posted humiliating photos of a fellow classmate and commentary on the forum was mean-spirited and hateful. Kowalski sued the school claiming that in disciplining her, the school violated her free speech rights under the First Amendment. Had Kowalski created the page during school hours, using a school-provided computer, the case would be more clear-cut. However, she argues that because her conduct took place at home after school, the forum she created was therefore subject to the full protection of the First Amendment.
The Fourth Circuit concluded that regardless of where her speech originated, the school was authorized to discipline Kowalski because her speech materially and substantially interfered with the school environment. The Court reasoned that public schools have a compelling interest in regulating speech that interferes with or disrupts the work and discipline of the school, including discipline for student harassment and bullying. Cyber-bullying is a major concern in schools across the country and can cause victims to become depressed and anxious, to be afraid to go to school, and to have thoughts of suicide. Kowalski may have created the page at home, but she knew that the electronic response would be published beyond her home and could reasonably be expected to reach the school or impact the school environment. The nexus of Kowalski’s speech to the school’s interests was sufficiently strong to justify the action taken by school officials out of their role as the trustees of the student body’s well-being.
While the Fourth Circuit ruled on this issue, the uncertainty of the courts and the conflicting rulings of other Circuits have left school officials guessing about where the lines have been drawn. The factual analysis in determining whether or not an off campus activity materially or substantially interferes with the school’s operations is highly subjective and unpredictable. Unfortunately, there is currently a legal grey area regarding the regulation of cyber expression.
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