Academic journal article Brigham Young University Law Review

Tinker at a Breaking Point: Why the Specter of Cyberbullying Cannot Excuse Impermissible Public School Regulation of Off-Campus Student Speech

Academic journal article Brigham Young University Law Review

Tinker at a Breaking Point: Why the Specter of Cyberbullying Cannot Excuse Impermissible Public School Regulation of Off-Campus Student Speech

Article excerpt


Cyberbullying is essentially speech that is disseminated via electronic or digital means and is intended to embarrass, hurt, or harass another person.1 The most common conduits of cyberbullying include text messages, instant messages, email messages, social networking sites such as Facebook or MySpace, and microblogging sites such as Twitter. Cyberbullying is considered more pernicious than traditional bullying because it allows "cruel or sadistic behavior to be amplified and publicized, not just on the campus [of a school], but throughout the world."2 This amplification of the bullying behavior may contribute to the "extreme emotional reaction"3 manifest when a victim of cyberbullying takes his or her own life. Legislators, educators, parents, scholars, and students have responded to the deaths of teenagers Ryan Hulligan,4 Megan Meier,5 Phoebe Prince,6 Tyler Clementi,7 and others8 with a vigorous debate over what role school entities can and should play in protecting students by prohibiting this type of speech.9

A main focus of the debate is whedier a public school entity that regulates cyberbullying infringes on a student's First Amendment right to free speech. Under current and proposed statutory schemes,10 speech that originates and often takes place entirely offcampus, without the use of school computers or other school property and while the student is engaged in activities or events that are in no way related to the school or to any school purpose, could be regulated. Thus the question is whether the prevention of cyberbullying is so compelling an interest as to justify the ability of public school entities to regulate such a broad scope of student speech.

This debate sets states' clear interests in protecting children and maintaining a safe and educationally conducive environment at school and at school-sponsored activities against the individual student's constitutionally guaranteed right to freedom of speech. Though there is a compelling need to protect children from the insidious harm inflicted through cyberbullying, many statutes and local school policies permitting broad limitations on individual speech are not the least restrictive means through which such an interest is met. Unfortunately, considering the strong policy arguments on both sides of this issue obfuscates rather than clarifies where the appropriate balance lies. Children are often the weakest and most easily victimized members of society. Consequently, they not only deserve but often desperately need protection. Additionally, the effects of cyberbullying can be pernicious and particularly destructive to children and youth in their early adolescence.11 However, First Amendment scholarship and jurisprudence make it clear that freedom of speech is a most decidedly cherished and vigorously protected constitutional right.

This Comment does not propose that cyberbullying should be tolerated without any consequences whatsoever. It recognizes that much of what is categorized as cyberbullying is a distasteful and potentially damaging form of speech. However, in order to appropriately defend the individual's right to free speech, the regulation by public-school entities of off-campus student speech must be narrowly tailored to prevent a limited class of speech that is either already under the school's authority to regulate or that rises to the level of a "true threat."12 Thus, schools would maintain the power to regulate speech through which the speaker means "to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals."13 The alternative - allowing a broad infringement of students' First Amendment rights by public-school entities in misguided and sometimes inefficient efforts to control cyberbullying - sweeps in too much speech that should be protected. Such actions cannot be upheld as permissible under the Constitution.

Therefore, school administrators must exercise care in how far they are willing to go to regulate student speech. …

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