A new playground for children has digitally emerged. Unfortunately, like most playgrounds, social media is a magnet for bullying. The pain inflicted by such harassment, however, doesn’t belong in an innocent playground. In some cases, it belongs in prison.
States have responded by recently upheaving their laws, thereby protecting the safety of their students. While these strict policies may be moral, jurisprudence is more complex. Courts are presented with a trade-off: free speech or safety.
Some consider a punch to be more impactful than a sentence. With a crippling mental health epidemic coupled with growing online hostilities, this isn’t the case. The danger is so severe that Center for Disease Control experts depict cyberbullying as a “public health problem,” often implicated in suicide.
A recent tide of cases terminated cyberbullying laws. In 2016, North Carolina invalidated cyberbullying regulations in State v. Bishop. Similarly, People v. Marquan M. disposed of New York’s legislation.
In both New York and North Carolina’s trials, the judges ruled that the laws were too broad. Vagueness has historical roots. James Madison’s Federalist No. 62 warns of laws “so incoherent that they cannot be understood.” North Carolina failed to define “intimidate” and “torment.” Because of this, playful or everyday speech may be punished as cyberbullying— a clear violation of free speech and, not to mention, a dangerous precedent. The first step in creating a judicial remedy ironically starts with lawmakers.
The second step is legal. Chaplinsky v. New Hampshire (1942) introduced the fighting words doctrine, confirming that the First Amendment does not perpetually safeguard free speech. Violent speech is the exception.
More prominently, the year 1969 heralded revolutionary change for the justice system. Many critical legal doctrines were established in Tinker v. Des Moines. Firstly, the substantial disruption test declared that schools must prove there is a substantial disruption to curtail speech. Melton v. Young used this doctrine to condemn a student for wearing a confederate flag jacket to school. A more unappreciated stipulation is buried in the brief. Tinker’s second prong declares that if speech invades the “rights of others,” it is punishable. Thus, cyberbullying, violating student rights inside schools, falls under the purview of this landmark precedent.
Looking at social media speech, though, is more complicated. Because many incidents occur off-campus, a new question arises: Do schools have jurisdiction over students when using personal devices and in places the school doesn’t own?
Morse v. Frederick says yes — somewhat. In the case, Joseph Frederick advertised illegal drugs outside of school grounds. The court promulgated that even though such “speech” was off-campus, it could still be disciplined. There’s a catch. Joseph Fredrick participated in a school-sponsored relay race, thus making it related to the school. From this, it is concluded that cyberbullying that is an extension of the school can be punished (i.e., on school devices or at school activities).
A Nuanced Approach:
The Supreme Court should establish a more comprehensive prong test — what many courts use to tackle compound issues. As a baseline, schools shouldn’t be allowed to ban cyberbullying if laws lack specificity. Then, exercising the tinker precedent and First Amendment: any cyberbullying that takes place on-campus or uses school devices should be subject to the same standards as physical bullying and, subsequently, discipline.
The narrative is different when outside school. To prevent excessive violations of free speech, Tinker’s punishment for a mere “disruption” to “the school” does not apply. This is because most cyberbullying doesn’t transpire in school. Instead, schools must prove that off-campus speech presents active harm or danger to another student, necessitating repercussions. Specifically, off-campus cyberbullying that affects the mental health, sanity, or ability of a student constitutes an exception to the First Amendment. Such a test subscribes to the Tinker ruling as it shows that speech “invading the rights” of others is unpermitted but accounts for Tinker’s limitations as an on-campus case. This may be dubbed the “active harm test.”
The test effectively shields against excessive infringements of speech. If Bethel School District v. Fraser pertained to online bullying, free speech would triumph. The case harbored a student who used vulgar, explicit language in front of 600 other students. Had this occurred on social media, it wouldn’t meet the “active harm test,” meaning that the school cannot legally punish the student for explicit language since it didn’t harm anyone.
In summary, courts should follow a simple test. (1) Laws must be definitionally specific. (2) Proceedings are subject to Tinker standards if Cyberbullying (a) occurs at school or using a school device, (b) is the topic of student discourse at school, (c) content is viewed on campus. (3) When none of this applies, cyberbullying outside of school must fulfill an active harm test.
Mahanoy Wasn’t Wrong:
Many critics may cite Mahanoy Area School District v. B.L. This recent adjudication found that explicit, off-campus expression could not be punished. Yet, the circumstance wouldn’t even satisfy the active harm test — no one was hurt.
Ultimately, the Supreme Court sided towards my pronged solution. The majority opinion cited that “several types of off-campus behavior…may call for school regulation. These include serious…bullying or harassment targeting particular individuals.”
Courts must not shatter the fragile balance between free expression and safety. Rather, they need to draw an intricate line between the two, protecting both. As children coast to the end of the digital playground slide, they are met with hostility. A judicial response must be pointed and swift.
With verbal violence unleashed by the day, cyberbullying regulations — codified by companies, congress, and courtrooms — may be required. Title IX of the Education Amendments prohibits verbal discrimination and student harassment. By virtue of this statute, averting cyberbullying may not only be an option but a legal obligation.
1 Hudson, David L. “Is Cyberbullying Free Speech?” ABA Journal, 1 Nov. 2016, https://www.abajournal.com/magazine/article/is_cyberbullying_free_speech.
2 David-Ferdon, C., & Hertz, M. F. (2007). Electronic media, violence, and adolescents: an emerging public health problem. The Journal of adolescent health : official publication of the Society for Adolescent Medicine, 41(6 Suppl 1), S1–S5. https://doi.org/10.1016/j.jadohealth.2007.08.020
3 Swansea University. Young victims of cyberbullying twice as likely to attempt suicide and self-harm, study finds.” ScienceDaily, 19 April 2018. <www.sciencedaily.com/releases/2018/04/180419130923.htm>.
4 State v. Robert Bishop, 368 N.C. 869, 787 S.E.2d 814 (N.C. 2016)
5 The People v. Marquan M., 19 N.E.3d 480 (N.Y. 2014)
6 Madison, James, et al. “The Federalist No. 62.” National Archives and Records Administration, National Archives and Records Administration, 27 Feb. 1788 https://founders.archives.gov/documents/Hamilton/01-04-02-0212#ARHN-01-04-02-0212-fn-0001.
7 State v. Robert Bishop, 368 N.C. 869, 787 S.E.2d 814 (N.C. 2016)
8 Karen Steyn (1997) Consistency – A Principle of Public Law?, Judicial Review, 2:1, 22-26, DOI: 10.1080/10854681.1997.11426924
9 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
10 Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
11 Fishwick, Laura, “Student Free Speech Rights on the Internet: Summary of the Recent Case Law.” Harvard Journal of Law & Technology, 12 Jan. 2012, https://jolt.law.harvard.edu/digest/student-free-speech-rights-on-the-internet-summary-of-the-recent-case-law.
12 Melton v. Young, 465 F.2d 1332 (6th Cir. 1972)
13 Institute, Freedom. “Tinkering with Tinker Standards?” Freedom Forum Institute, 9 Aug. 2006, https://www.freedomforuminstitute.org/2006/08/09/tinkering-with-tinker-standards/.
14 Morse v. Frederick, 551 U.S. 393 (2007)
15 Pacelle, Richard L. “Lemon Test.” MTSU, The First Amendment Encyclopedia, https://www.mtsu.edu/first-amendment/article/834/lemon-test.
16 Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
17 The Constitution of the United States: A Transcription. National Archives, U.S. National Archives and Records Administration, 4 May 2020, www.archives.gov/founding-docs/constitution-transcript.
18 Hudson, David L. “Substantial Disruption Test.” Substantial Disruption Test, First Amendment Encyclopedia , https://mtsu.edu/first-amendment/article/1584/substantial-disruption-test.
19 Institute, Freedom. “Tinkering with Tinker Standards?” Freedom Forum Institute, 9 Aug. 2006, https://www.freedomforuminstitute.org/2006/08/09/tinkering-with-tinker-standards/.
20 Bethel School District v. Fraser, 478 U.S. 675 (1986)
21 & 22 Mahanoy Area School District v. B.L., 594 U.S. ___ (2021)
23 Title IX of the Education Amendments of 1972 20, U.S.C. Ð 1681 – 1688