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Substantial Disruption: an Inside Look at Cyberbullying and First Amendment Rights in Public Schools

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Substantial Disruption: an Inside Look at Cyberbullying and First Amendment Rights in Public Schools Substantial Disruption: An Inside Look at Cyberbullying and First Amendment Rights in Public Schools BY: ROBERT CASTLE* I. INTRODUCTION The freedoms guaranteed by the First Amendment of the United States Constitution exemplify our nation’s commitment to ensuring a liberated, freethinking society of individuals capable of changing the world.1 The lives of Americans, past and present, would be radically different had the Founding Fathers built a society restricting the ability to speak freely, explore different religions and cultures, or navigate the countless genres of thought life has to offer. For generations, the U.S. has been a symbol of tolerance, innovation, and progressive thinking.2 This is not to say, however, that our nation has not faced its share of immense challenges and bouts of controversy. These noble ideals often clash with societal advancements, like technology, which foster problems never intended by our forefathers.3 One of the most controversial issues facing our society today begs the question of whether the freedoms granted by the First Amendment extend to Internet communication.4 On one hand, the Internet has * Loyola University Chicago School of Law, J.D. expected May 2014. 1 See U.S. CONST. amend. I. 2 See United States Founded on Liberty and Freedom, PENN LIVE (Sept. 29, 2009), available at http://www.pennlive.com/letters/index.ssf/2009/05/united_states_founded_on_liber.html (“The right to discuss and disagree without fear of retribution is what makes the United States the great and unique country that it is.”). 3 Privacy Technology, and the USA Patriot Act, SOCIAL THEMES (Jan. 4, 2004), available at http://cs.furman.edu/digitaldomain/themes/privacy/privacy1.html (“Of course, the Founding Fathers could not have anticipated the breadth and depth of changes that circumscribe modern life.”). 4 David L. Hudson Jr., Cyberspeech, FIRST AMENDMENT CENTER (April 9, 2002), available at http://www.firstamendmentcenter.org/cyberspeech/print/ (“This speech-enhancing medium has led to numerous controversies, causing many people to view the Internet as the premier First Amendment battleground.”). 1 transformed communication throughout the globe.5 On the other hand, the Internet widens the prospective audience for the crudest forms of speech.6 This accessibility to communicate has an immense impact on the lives of American teenagers, many of whose offline and online worlds are now completely integrated as a result of social networking sites such as Facebook, Myspace, Instagram, Twitter, and personal blogs.7 While a large majority of American teenagers use the Internet for non-disruptive purposes, an increasing number of teens use the Internet as an outlet to express their frustrations with fellow students, school administrators, and society at large.8 As a result, cyberbullying has become a distressing regularity among America’s youth.9 This issue becomes especially problematic when determining if, when, and how far school districts may regulate and punish Internet speech made by students off school grounds.10 Students and teachers alike need to know the extent of a school’s ability to regulate off-campus cyberspeech.11 A fine line is important to maintain, or else a 5 Id. 6 DAVID L. HUDSON JR., LET THE STUDENTS SPEAK! A HISTORY OF THE RIGHT FOR FREE EXPRESSION IN AMERICAN SCHOOLS 159 (Christopher Finan et al. 2011). 7 DANAH BOYD, WHY YOUTH (HEART) SOCIAL NETWORK SITES: THE ROLE OF NETWORKED PUBLICS IN TEENAGE SOCIAL LIFE 15 (David Buckingham ed., 2007) (explaining the large impact social networking sites have on youth culture); Gustavo S. Mesch, The Internet and Youth Culture, IASC-CULTURE, available at http://www.iasc-culture.org/THR/archives/YouthCulture/Mesch.pdf. 8 See infra Part III. 9 Cyberbullying vs. Free Speech, CBS NEWS (Feb. 11, 2009), available at http://www.cbsnews.com/2102- 500163_162-3768945.html?tag=contentM (noting the large scope of cyberbullying, and the effect it has on society); Cyberbullying Statistics, available at http://www.bullyingstatistics.org/content/cyber-bullying- statistics.html. 10 Daniel J. Solove, School Discipline for Off-Campus Speech and the First Amendment, HUFFINGTON POST (June 20, 2011), available at http://www.huffingtonpost.com/daniel-j-solove/school-discipline-free- speech_b_877203.html. 11 Jacob Tabor, Students’ First Amendment Rights in the Age of the Internet: Off-Campus Cyberspeech and School Regulation, 50 B.C. L. REV. 561, 603 (2009), available at http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2414&context=bclr (“Without a clear understanding of the limits of the school’s reach, speech will be chilled in some cases. In others, teachers will feel helpless to act and protect the children in their care.”). 2 school’s power to regulate might extend too far beyond the schoolhouse gate,12 and infringe on the protections guaranteed by the First Amendment. The root of this debate is fostered through the practice of applying old rules to new technology.13 Teachers, school administrators, parents, and judges alike have wrestled over whether free speech rights allow students to say whatever they like when off school grounds.14 Just how far may a school district go to identify, address, and punish instances of cyberbullying? There is no clear answer. So far, the Supreme Court has declined to hear this thorny issue, making it nearly impossible to determine a clear- cut standard when reviewing such disputes.15 Lower courts have attempted, but each ultimately applied different standards, producing different results.16 The following sections will: (i) analyze the issues currently facing courts and lawmakers; (ii) present a plea to the Supreme Court to take a stance on this issue; and (iii) provide a proposal that would protect the rights of individual students and promote 12 Solove, supra note 10. 13 See Stephen Wermiel, SCOTUS for Law Students: Student Speech and the Internet, SCOTUS BLOG (Jan. 7, 2012), available at http://www.scotusblog.com?p=136102 (“Should a school be able to discipline a student for communication that took place in the student’s own home on the student’s own time?”); William Nolan, Labor: Applying Old Rules to New Technologies is Becoming Increasingly Frequent, INSIDE COUNSEL (Dec. 3, 2012), available at http://www.insidecounsel.com/2012/12/03/labor-applying- old-rules-to-new-technologies-is-be (arguing that the legal system needs to catch up with the ongoing computer revolution). 14 Greg Bluestein & Dorie Turner, School Cyberbullying Victims Fight Back in Lawsuits, HUFFINGTON POST (Apr. 26, 2012), available at http://www.huffingtonpost.com/2012/04/26/school-cyberbullying- vict_n_1457918.html. 15 See Mark Walsh, Justices Decline Student Internet Speech Case, Others Await, EDUCATION WEEK’S BLOGS (Nov. 1, 2011), available at http://blogs.edweek.org/edweek/school_law/2011/11/; Christian A. Carrillo, The Supreme Court’s Refusal to Hear Cyberbullying Cases Leaves Law Unclear, MORRIS POLICH & PURDY LLP, available at http://www.mpplaw.com/files/Publication/691836d4-078b-454b-b0d3- 306f2651471e/Preview/PublicationAttachment/c2ed8db4-f043-4194-ba82-324935e874eb/Supreme-Courts- Refusal-to-Hear-Cyberbullying-Cases.pdf. 16 Hudson Jr., Cyberspeech, supra note 4 (“This speech-enhancing medium has led to numerous controversies, causing many people to view the Internet as the premier First Amendment battleground.”); Carrillo, supra note 15. 3 undisrupted education in our school systems, while at the same time balancing the protections guaranteed by the First Amendment.17 II. BACKGROUND A. Historical Perspectives and Tinker First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.18 If we are to fully understand the present, we must first understand our past. Public education first became a popular option for American children in the early 1800s.19 During this time, public schools were extremely strict and focused heavily on rules of etiquette and courteous behavior.20 It was believed that while in school, the teacher took the place of the parent: a legal doctrine known as in loco parentis.21 This ideology left the rulemaking, commands, and punishment solely within the discretion of the teacher.22 Gradually, over the years, these tight restrictions on student speech and action loosened—and in 1969, the ongoing question of students’ First Amendment rights in public schools was brought to light in the Tinker v. Des Moines Independent Community School District decision.23 17 See infra Parts III–V. 18 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969); Tabor, supra note 11, at 561. 19 See Morse, 551 U.S. 393 410–11 (2007) (discussing the early history of public schooling an America). 20 Id. at 412. 21 Id. at 413. “In short, in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order.” Id. at 412. See Tabor, supra note 11, at 572 (“The in loco parentis view of schools is that the teachers take on the rights and duties of the student’s parents and act in their place while the student is at school.”). 22 Morse, 551 U.S. 393 at 414. 23 See Tinker, 393 U.S. at 514 (holding that student speech which does not reasonably forecast a substantial disruption of school
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