Legal Ease School Law Notes: How far is too far? Limiting cyber-speech by students
04/08 -- A troubled 13-year-old girl thought she had made a new friend when a cute teenage boy contacted her on a social networking website. The two corresponded electronically for over a month until the boy began questioning her about postings she had made about other students and then abruptly ended the relationship saying that she was “cruel.”
Distraught over the break-up, the girl hanged herself the next day in her bedroom. After her death it was discovered that the person she had been corresponding with was actually a neighbor who was the mother of a former friend.
While extreme, this incident highlights the potentially tragic consequences of cyberbullying.
Some antibullying advocates (www.stopcyberbullying.org, for example) believe schools have an obligation to stop this kind of conduct even when it occurs off school grounds and after school hours.
But while there might be an understandable empathy for the victims of cyberbullying, the proposition that schools have a legal or moral obligation to censor inappropriate off-campus student speech over the Internet that is unrelated to school simply goes too far.
The actions of public schools, like other governmental entities, are governed by the First Amendment to the U.S. Constitution, which protects the freedom of speech.
The Supreme Court has given schools the ability to censor inappropriate on-campus speech. (A key ruling is Bethel v. Fraser in 1986.) But this right has been premised on the potential disruption such speech would have at school and the adverse impact caused by messages that contradict the school’s core educational function.
When student speech does not occur at school and is not related to school in a harmful way, the government does not have a right to intervene.
Because of its very nature, cyberbullying usually takes place off school grounds after school hours and does not involve school equipment. Unless there are threats of violence (especially if the threats are to be acted out at school or at a school-related event), the school’s role tends to be peripheral.
In the 2007 decision in Morse v. Frederick, the Supreme Court considered the question of when a school’s power to censor student speech extends beyond the physical school boundaries. The case, which involved a student’s banner with the nonsensical but apparently drug-related message “Bong Hits 4 Jesus,” turned on the fact that the banner was unfurled at a “school-sanctioned and school-supervised event.”
Chief Justice John G. Roberts Jr., writing for the majority, recognized that some messages at school-related events are so deleterious to students (such as those that promote drug use), that schools have the right to regulate them. While there might be “uncertainty at the outer boundaries as to when courts should apply school-speech precedents,” he wrote, that uncertainty does not apply to the facts of Morse.
Roberts’ majority opinion relied on a 2004 decision by the 5th Circuit Appeals Court, Porter v. Ascension Parish School Board, which found that a school could not punish a student for a story -- no matter how offensive -- if it was written off school premises and was never intended to appear on campus.
The nature of the decision in Morse indicates a reluctance by some members of the Supreme Court to expand the power of school administrators to censor on-campus student speech through the use of student disciplinary codes.
As a result, it is highly unlikely that the court will look with favor on even more tenuous attempts to permit schools to act against student speech that takes place off school grounds.
Schools should be reticent to succumb to the temptation to censor off-campus cyber-speech regardless of how tasteless the speech might be -- unless there is some connection to the school setting.
Schools have a legitimate interest in preventing the bullying of students entrusted to their care. But when that bullying takes the form of off-campus cyber-speech, schools should carefully determine whether the speech could have an impact on the school setting before deciding whether they have the authority to regulate that speech. For that determination, school boards and superintendents are well advised to seek the counsel of their school board attorneys.
Thomas E. Wheeler II, of Locke Reynolds LLP, Indianapolis, Ind., is secretary of NSBA’s Council of School Attorneys.
Reproduced with permission from
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