September 28, 2012 Articles

Zero Tolerance for Online Bullying Can Hamper Free Speech

By Frank D. LoMonte

America is at a "9/12 moment" in responding to the problem of online bullying—a time of incalculable grief in the face of tragedy in which no government response seems too hasty or extreme.

Heartbreaking headlines about young people hounded to suicide by online cruelty are provoking a wave of harsh punitive measures at the state and district levels. Statutes such as North Carolina's School Violence Prevention Act of 2012, which criminalizes using photos of school personnel to mock or satirize them online, are rushing through state legislatures with little debate or opposition and with no apparent consideration of their constitutional implications.

In this panic-reaction climate, it is essential that advocates for children be prepared to defend victims of overzealous, zero-tolerance enforcement who may be suspended, expelled, or even criminally prosecuted for editorial commentary that is—or should be—protected by the First Amendment.

Defending the free expression rights of young people has never been more difficult. Courts traditionally hesitate to second-guess school administrators on disciplinary judgment calls, and school attorneys have successfully argued since the April 1999 Columbine shootings that even greater deference is warranted when dealing with students suspected of being unstable or violent.

Still, it is possible to challenge disciplinary excesses where a school's response to unwelcome speech is unmoored to safety and appears instead to be an exercise in image control or in imposing subjective good-behavior standards on students' personal, off-campus time.

School Punitive Authority Beyond the Schoolhouse Gate
In its seminal pronouncement on the First Amendment in public schools, Tinker v. Des Moines Independent Community School District, the Supreme Court decided in 1969 that schools may not punish students for peaceful protest activity, even on school grounds and during the school day.

Striking a balance between authority and autonomy in light of "the special characteristics of the school environment," the Court decided that a school may not restrain student expression unless there is concrete evidence that the speech has provoked (or imminently will provoke) "material and substantial interference with schoolwork or discipline."

In 2007, the Supreme Court created a narrow exception to Tinker in a case, Morse v. Frederick, that involved speech physically removed from campus (a pro-drug message on a banner that a student unfurled at a school-organized rally). The Court decided that student speech promoting the use of dangerous illegal drugs is so uniquely harmful that it is unprotected by the First Amendment even if no disruption ensues or is likely.

But the Court carefully avoided extending schools' authority to purely off-campus behavior. Rather, the Court equated the rally to a field trip or other school outing—the event took place on a hill across from campus during school hours, under the supervision of school personnel, and categorized the student's banner-waving as "school speech."

In the absence of Supreme Court precedent, lower courts have struggled to arrive at a coherent legal framework under which to decide First Amendment cases involving off-campus speech.

There is a growing, but not unanimous, consensus that the Tinker legal standard applies equally to student speech regardless of where it occurs. Some courts have added an additional factor of foreseeability, but it is not clear whether it is sufficient that the student must foresee the disruptiveness of the speech or if simply foreseeing that the speech will reach a school audience is enough.

Two federal circuits, the Fourth and Eighth, have held outright that off-campus, online speech is punishable if the school can show that a Tinker level of disruption ensued or was likely. Those cases—Kowalski v. Berkeley County Schools (4th Cir. 2011) and D.J.M. v. Hannibal Public School District #60 (8th Cir. 2011)—involved perhaps the most unsympathetic speakers conceivable: a student who created a social-networking page ridiculing a classmate for having a venereal disease (Kowalski) and a student who chatted with classmates about his plans to acquire guns and shoot up the school (D.J.M.).

The Second Circuit flirted with the adoption of the Tinker standard in Doninger v. Niehoff (2d Cir. 2010), a case involving a student blogger who made uncivil remarks about administrators in the context of a school policy dispute in which she was involved.

While the Doninger court treated Tinker as the applicable legal standard at a preliminary stage of the case, it ultimately disposed of the case on the narrower grounds of qualified immunity for the defendant school principal without deciding whether the blog was entitled to the Tinker level of protection or something greater.

In a 2011 ruling, the en banc Third Circuit U.S. Court of Appeals declined to recognize Tinker as the appropriate standard governing speech on an off-campus, social-networking page. In J.S. v. Blue Mountain School District, the court struck down a Pennsylvania middle school's suspension of a student who crudely ridiculed her principal in a mock profile page on MySpace.

While the court did not agree on a single rationale, five concurring judges expressed profound skepticism at the school's argument that online speech is functionally on-campus and should receive no greater protection, saying, "Applying Tinker to off-campus speech would create a precedent with ominous implications. Doing so would empower schools to regulate students' expressive activity no matter where it takes place, when it occurs, or what subject matter it involves—so long as it causes a substantial disruption at school."

The Supreme Court declined in 2012 to entertain petitions to review the J.S. and Kowalski cases. There do not currently appear to be any circuit-level rulings involving the online-speech scenario that are ripe for Supreme Court consideration in the coming term.

It is perilous to generalize from a handful of cases in the absence of Supreme Court guidance. Nevertheless, the takeaway from the first generation of student online-speech rulings appears to be twofold.

First, deference to schools' punitive authority will, understandably, be at its highest when students' speech portends violence, particularly violence directed against classmates. Second, deference to schools' punitive authority will, properly, be at its lowest when speech targets public officials (such as principals) as opposed to vulnerable students.

Challenging School Discipline for Students' Online Speech
There are powerful arguments against equating off-campus speech on the Internet with on-campus speech during school time. Except where bound by precedent, litigants should not lightly concede that the Tinker standard applies equally to all student speech regardless of location.

Tinker is a compromise struck in the unique setting of speech foisted on a captive audience of listeners who are statutorily compelled to attend. When a student speaks off campus to an online audience, the speech must be affirmatively sought out, and it can easily be avoided by clicking away.

When a student speaks on campus, the speech is intended exclusively for an audience of school listeners. Online speech is qualitatively different—it may be directed to a larger public audience. To require that students limit themselves at all times in all settings to speech that would be appropriate inside of a classroom is a radical proposition.

Because Tinker permits preemptive censorship before a disruption arises, schools can demand to preapprove written material students wish to distribute on campus. If an unmodified Tinker standard applies equally to off-campus speech, then a school could constitutionally require preapproval of letters to a local newspaper, interviews with a television station, speeches delivered to the school board, or any other off-campus expression.

A thoughtful court that is apprised of these far-reaching consequences will recognize Tinker as an insufficiently protective standard for speech outside of school.

Advocates should also carefully review the statutes and regulations under which students are punished. Having been hastily enacted in response to headline-grabbing cases, many state anti-bullying statutes encompass conduct well beyond what is punishable under any known constitutional standard.

For example, New Jersey's Anti-Bullying Bill of Rights Act, which took effect at the start of the 2011–2012 school year, defines bullying as including acts based on any actual or perceived characteristic of a student that would reasonably be expected to cause the student emotional harm. The law requires neither that the harm be severe nor that there be any connection between the harmful activity and school.

This definition would include, by way of illustration, an off-campus chat message in which a boyfriend tells his girlfriend, "I'm breaking up with you because you are pregnant." While that is dreadful behavior, it almost certainly is outside the constitutional jurisdiction of a public school to punish.

Because it cannot be assumed that all judges and jurors are fluent with the workings of electronic media, attorneys should familiarize themselves with the applicable platform and be prepared to explain how it works. There is a tendency to regard all electronically transmitted communications as potentially viral speech accessible to a worldwide audience for eternity—even if actual viewership is in the single digits.

For example, if a student's account on Twitter is set to "protected," then the student's tweet posts are viewable only by readers the student has approved. A nonpublic Twitter posting may reach an audience no larger than the student's own cafeteria table, and its ability to disrupt school may be no greater than that of a cartoon scrawled on notebook paper.

Case Study: T.V. v. Smith-Green Community School Corp.
Even if Tinker does supply the standard for determining when online speech is constitutionally unprotected, that is just the starting point. Where speech merely provokes conversation on campus and nothing more, the reaction will not rise to the level of a punishable disruption.

That was the case in T.V. v. Smith-Green Community School Corp. Two Indiana high-school volleyball teammates were disciplined for the content of a comical slumber-party video they shared with their Facebook friends. In the video, the (fully clothed) girls goosed each other playfully with penis-shaped lollipops. The mother of another volleyball player complained to the school that the girls' behavior was causing dissension on the team.

A U.S. district judge overturned the punishment, finding that the school had overstepped its First Amendment boundaries.

The court assumed without deciding that the online video was subject to school authority under the Tinker standard, but found that the alleged level of disruption—basically nothing more than gossip and chatter—did not cross the threshold of "substantial" or "material."

Significantly, the court in Smith-Green rejected the notion that punishment is insufficiently severe to rise to the level of a First Amendment violation if it "only" deprives a student of eligibility for extracurricular activities:

That there is no constitutional right to participate in athletics or other extracurricular activities may be pertinent to an analysis of other sorts of constitutional claims . . . but as Tinker itself notes, not to a freedom of expression claim.

In non-school contexts, the Supreme Court has made clear that government punishment can violate the First Amendment even if it does not deprive a speaker of a constitutionally protected interest. It is sufficient that the punishment is meant to deter further acts of lawful expression and would in fact deter a speaker of reasonable fortitude.

When the speaker is a student, however, some courts have given decisive weight to the relative leniency of the punishment. Schools have been afforded essentially unreviewable discretion to impose minor penalties such as disqualification from a class office (the Second Circuit's Doninger ruling), from cheerleading (Doe v. Silsbee Independent School District, 5th Cir. 2010), or from an athletic team (Lowery v. Euverard, 6th Cir. 2007).

But in July 2012, a New Jersey appellate court found that, under state law, a school could not require a student to sign a blanket waiver of rights as a precondition for taking part in extracurricular activities.

In G.D.M. and T.A.M. v. Board of Education of Ramapo Indian Hills Regional School District, the Superior Court Appellate Division ruled that New Jersey law limited schools to punishing only behavior that "materially and substantially interferes with" school operations. Because the school was asking students to accept punishment for any unlawful off-campus behavior—even speeding or jaywalking—the requirement went beyond the school's statutory authority.

The G.D.M. outcome reemphasizes the importance for litigants of considering the state-law basis for school disciplinary authority as well as any constitutional claims.

A challenge to the withdrawal of extracurricular participation will fare best if there is legal authority in the state that sports and clubs are a part of the bundle of free public education to which students are constitutionally entitled. Even if no such authority exists, the deprivation should still be actionable if it is intended to deter the exercise of First Amendment rights and would be reasonably expected to do so.

Non-First Amendment Bases for Challenge
While the First Amendment is the obvious resort when a student is punished for the content of speech, alternative legal theories at times offer a more promising avenue for relief. Even where speech is of minimal societal value, making a free-speech claim unpalatable, courts that hesitate to protect low-value speech may still be willing to protect the integrity of the disciplinary process.

Discipline is unlawful under the Due Process Clause if the applicable statute or regulation failed to give warning that the behavior was punishable. Under the Due Process Clause, courts have struck down disciplinary action against students under school regulations penalizing the abuse of school personnel (Killion v. Franklin Regional School District (W.D. Pa. 2001)), the wearing of distracting clothing (Miller v. Penn Manor School District (E.D. Pa. 2008)), or behaving with ill will (Sypniewski v. Warren Hills Regional Board of Education (3d Cir. 2002)) where those terms were not carefully defined so as to delimit the boundaries of punishable conduct.

Some state constitutions—for example, those in Arizona, Texas, Oregon, and Vermont—are even more protective of free expression than the U.S. Constitution. Wherever a state has a free-speech clause in its constitution, a federal First Amendment claim should be accompanied by a state claim.

Finally, laws singling out only students for punishment of their off-campus speech may be vulnerable to challenge on equal-protection grounds. This is a point alluded to by Judge Smith's five-judge concurrence in the Third Circuit's J.S. decision:

Adults often say things that give rise to disruptions in public schools. Those who championed desegregation in the 1950s and 60s caused more than a minor disturbance in the southern schools. Of course, the prospect of using Tinker to silence such speakers is absurd.

A statute constraining only students' off-campus expression—such as North Carolina's 2012 criminal prohibition against posting photos of school personnel online with an intent to torment them—is likely violative of equal protection because a nonstudent can engage in the identical behavior in the identical setting without penalty. While this theory has yet to be tested in a published judicial opinion, Smith's reasoning in J.S. suggests at least some judges will receptively entertain it.

Case Study: J.C. v. Beverly Hills Unified School District
In 2009, a California high-school student successfully challenged her two-day suspension over a YouTube video that was created and posted outside of school. The student, "J.C.," shot a video of several friends at a restaurant, swapping crude insults about a classmate, then uploaded the recording to YouTube—and called the classmate at home to make sure that she saw it.

The mocked student and her mother complained to the principal at Beverly Vista High School, who suspended those responsible under school district regulations prohibiting "behavior which disrupts school activities" and the use of "vulgar, obscene or insulting language."

In J.C. v. Beverly Hills Unified School District, a federal district court for the Central District of California ruled in the student's favor on both First Amendment and due-process grounds.

On the due-process theory, the court found that a reasonable person would understand the prohibitions against disruptive behavior and insulting language to apply only during school activities and not on personal time. Fortifying that common understanding was the school district's own rulebook, which provided in part, "A pupil should not be suspended or expelled . . . unless that act is related to school activity or school attendance occurring within a school under the jurisdiction of the superintendent of the school district or principal."

Neglecting to raise a due-process claim at the earliest opportunity can result in a damaging waiver. In the Third Circuit's J.S. case, the student was disciplined under a regulation plainly inapplicable to her behavior—unauthorized use of school computers on school grounds—because the district had no regulation making off-campus speech punishable. But because counsel failed to plead a due-process theory, this "elephant in the room" went overlooked, and an easy constitutional case became a wrenching one.

Justice Brennan famously observed in NAACP v. Button that "[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." The courts too often invert that presumption when the speaker is a student and the government agency is a school. The speaker and not the censor must always be given the benefit of the doubt in uncertain cases, or else speakers will self-censor so as not to cross an indistinct boundary line.

There is a growing recognition that promoting student participation in the dialogue about school policy is an essential part of developing engaged citizens. As Justice O'Connor's Campaign for the Civic Mission of Schools recommended in its September 2010 report, Guardian of Democracy, "Schools should encourage student participation in school governance."

A heavy hand of school censorship is inconsistent with training inquisitive citizens to take ownership of their democracy. Given how avidly many school administrators censor on-campus speech by students engaging in legitimate editorial commentary or whistleblowing activity, giving them equivalent control over off-campus speech carries grave risks.

It may be tolerable in the name of good order for a principal to prevent a student from marching down the hallways during school hours, picketing for the removal of an abusive coach, but off-campus, on personal time, the student must necessarily have the benefit of Justice Brennan's "breathing space" to be certain that his or her protest is constitutionally protected against reprisal—even if the speech causes a strong reaction, as sometimes is entirely appropriate.

Just as we learned after the September 11 terrorist attacks that it is possible to sacrifice too many civil liberties in the pursuit of murderous terrorists, the realization will dawn that panicky legislative responses to cyberbullying can damage as many young lives as they benefit. It is the responsibility of the children's rights bar to resist a generation of false-positive "zero tolerance for unkindness" overreactions that place ceilings on the futures of creative young people who should know no limits.

Keywords: litigation, children's rights, First Amendment, censorship, online speech

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Frank D. LoMonte – September 28, 2012