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New Jersey lawyer focusing on special education law and employment law

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Cyberbullying and Freedom of Speech

Cyberbullying a hot topic. But it is also a murky area of law. Not many people can offer a good definition of cyberbulling. The courts are literally struggling with this area because there are so many gray areas and the courts are mindful of First Amendment issues. On the one hand, students have the right to free speech. On the other hand, schools may impose restrictions on free speech if it “materially and substantially disrupts” the educational process. This is commonly referred to as the Tinker test. When it comes to off-campus, online speech, there are no bright line rules.

The first decade of 2000 has seen numerous (and challenging) cases involving students who blog and post messages about their classmates, teachers, and principals. With the popularity of MySpace, YouTube, and Facebook, youngsters are using these mediums to express not only their creativity (parodies of their principals) but also to vent in public (denigrating teachers and classmates). Let’s take a quick look at some well known cases involving students who have used the internet to publicly criticize their peers or parody a school employee.

In 2002, Ghyslain Raza, a high school student (in Canada) videotaped himself playing the role of Darth Maul from Star Wars. The videotape was accidentally left in the school’s video camera. Some classmates found the video and uploaded it on YouTube. For one reason or another, the video had gone viral and became an internet sensation. But Ghyslain Raza was so traumatized that he had dropped out of school and was treated for depression at a psychiatric hospital. He and his parents sued the students who distributed the videos for $250,000. The Business Insider has an update on what Ghyslain Raza is doing now.

In 2006, Justin Layshock, a high school senior created a fake MySpace profile of his school principal. The profile was created off-campus. The school district suspended Justin for 10 days. In 2007, a federal judge ruled that the Justin’s suspension was unconstitutional. In 2010, the Third Circuit of Appeals ruled that the school district violated Justin’s First Amendment rights.

In 2007, J.S., a middle school student created a fake MySpace profile of her school principal. Like Justin Layshock, J.S. worked on the parody profile using a home computer. J.S. was subsequently given a 10 day suspension. A federal judge ruled in favor of the school district, and the Third Circuit of Appeals agreed. (It is difficult to reconcile this case with Justin Layshock’s case, and the Court has granted an en banc hearing. A new opinion is forthcoming.)

In 2007, Avery Doninger, a high school junior blogged that she was angry that the school had cancelled a music event and called school personnel “douchebags.” In retaliation, school personnel prohibited Avery from running for student government in her senior year. Avery and her mother sued for injunctive relief alleged violations of Connecticut free speech laws, intentional infliction of emotional distress, and violations of Avery’s constitutional rights to free speech, due process, and equal protection under the Civil Rights Act. Although Avery has since graduated, this case is still pending.

Also in 2007, high school senior Katherine Evans started a Facebook group page called “Ms. Sarah Phelps is the Worst Teacher I’ve Ever Met.” The Facebook page had a photo of Ms. Phelps and Ms. Evans encouraged her friends to post their opinions about Ms. Phelps. (See the appendix in the complaint.) The school suspended Katherine for “cyberbullying” and “disruptive behavior.” Two years later, Katherine’s case against the school is still on-going.

In 2008, J.C., a middle school student made a video describing a classmate a “spoiled brat” and a “slut” and posted it on YouTube.com. When the school district suspended J.C. the court held that the school went too far. The court’s 57 page opinion is a must read for anyone who is interested in how cyberbullying and free speech intersect.

Attorney Julie Hilden suggests that schools should adopt a simple bright line rule: if off-campus speech violates civil law or criminal law, then the student should be suspended. This is an interesting approach, but is it practical? Hilden’s proposal is probably workable when students criticize or parody school personnel. However, Hilden doesn’t seem to consider the consequences of the emotional damage that youngsters can suffer as a result of peers who say hurtful things about them in the online world. Nor does it consider the educational impact on students who are bullied and harassed.

How we can protect First Amendment free speech while at the same time ensuring that the school is a safe (and comfortable) place for all students? That is a difficult question the courts will tackle more and more in the next few years. It may even be a question that the US Supreme Court will face in the near future.

But litigation is incredibly expensive and there is a risk that First Amendment rights will wither away piece by piece if cyberbullying continues to be a problem in the schools. There is, however, a solution: Schools and parents can take the high road and work together to combat cyberbullying by developing an effective, interactive curriculum for students in junior high and high school. I’ll talk more about that in the next blog post.

An excellent resource to keep up to date on the latest cyberbullying news is The Wired – Threat Level, First Amendment in Higher Education (FIRE), and Citizen Media Law Project.

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