Part I of this Article will provide the First Amendment background for thinking about these disputes. It will explain how the Court has interpreted that amendment to provide primary and secondary students in American public schools with free speech rights, albeit not as broad as they enjoy in their capacities as ordinary citizens of our country. It has given public school administrators special power to regulate student speech as necessary to achieve the task the people have assigned them - the effective education of their children. When cyberbullying occurs then, as it often does, completely or partially off of school grounds, the first major question courts have to answer is what speech rules to apply to such disputes. Are they governed by the less speech protective rules applicable to students, or the more speech protective rules applicable to citizen speech in general? This question is critical because, as in many other areas of free speech analysis, the doctrinal rules applicable to a given dispute often dictate the outcome. The other major question courts are grappling with is the proper standards to apply on the merits of a given dispute once they have determined what set of rules governs it. Part II will provide a brief overview of what lower courts are doing in the area of student cyberspeech, particularly when it occurs off campus, when discipline imposed by school officials for engaging in it is challenged as a violation of the First Amendment. I say lower courts because the U.S. Supreme Court has recently declined to provide them with much-needed guidance in this area, at least for the time being, even though that court was presented with petitions for certiorari squarely presenting several important questions for review. It will describe how the courts are in disarray in terms of deciding whether ordinary or student speech rules govern these disputes, with most federal district courts taking the position that the latter govern all of them without regard to whether the speech occurred on or off campus, while most courts of appeals that have weighed in to date have decided student speech rules apply only if the speaker could have foreseen her speech would have reached school grounds. On the merits of these disputes, because most courts are applying a substantial disruption standard to them derived from Tinker v. Des Moines Index. Cinty. Sch. Dist.7 under either of these "choice of rules" approaches (and regardless of whether they constitute cyberdissing or cyberbullying cases), they are essentially allowing school sanctions to stand if they determine the speech caused a substantial disruption at school or at least had the potential to cause such a disruption even if it did not do so in actuality. If they determine that neither of these conditions are met, then they are concluding that the sanction violated the First Amendment. Part III will examine the "choice of rules" question and whether the current approaches being taken by the courts make sense. It will conclude that it is indefensible for courts to be taking the position that student speech rules, and particularly the Tinker disruption standard, apply to these disputes regardless of the geographic location of the speech. It will also conclude that a "reaching the campus" foreseeability standard for off campus speech is also incompatible with First Amendment jurisprudence, as well as with desirable constitutional policy. Drawing parallels to public employee speech cases, I will argue that student speech rules can apply to off campus speech that is related to school relationships or activities, and where the speech implicates legitimate and substantial functional interests of the school. Under this analysis, I will conclude that cyberdissing cases are appropriately evaluated under the function-sensitive standards of student speech rules regardless of whether such communications occur on or off campus, and cyberbullying cases may or may not be adjudicated under such standards depending upon the nature of the content at issue and the geographic location of such speech. Moreover, I will argue that there also exist many other types of potential student cyberspeech disputes where a proper "choice of rules" determination will depend upon the type of speech at issue and the nature of the functional interests of a school that such speech may implicate. Finally, Part IV will examine the particular rules of decision that should apply to student cyberdissing and cyberbullying disputes once it is determined that they can be adjudicated by reference to student speech rules. Here, I will contend that for cyberdissing disputes, a basic application of the Tinker disruption standard, as most courts are doing, is simply inadequate to account for the free speech interests that may be implicated by such cases. I will propose alternative merits standards, derived from both the public employee and student speech cases, that better account for such interests. I will also argue, as other commentators sensibly have, that the Tinker disruption standard being applied by the courts is not the appropriate one to adjudicate most typical student cyberbullying disputes. Except in certain circumstances, the principal standard that should be applied is the nebulous "invasion of rights" standard that was also announced in Tinker. Here I will attempt to give this standard content that is appropriately sensitive to both the functional interests of the school, as well as the free speech interests of adolescent students accused of cyberbullying other students. In the end, it is my hope that the analytical framework I have outlined in this Article for dealing with student cyberspeech disputes will prove useful in assisting school officials and courts to determine both when function sensitive student speech standards are applicable to them, as well as what those rules should be for the various sorts of disputes that may arise.
Barry P. McDonald,
Regulating Student Cyberspeech,
77 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol77/iss3/7