An Obstacle of Constitutional Proportions: The First Amendment
According to the First Amendment to the United States Constitution, "Congress shall make no law…abridging the freedom of speech." So important was this idea of the right to convey one’s ideas freely and without fear of legal consequences, that our Founding Fathers put it at the top of a list that would eventually become known as the Bill of Rights.
In both Ashcroft v. ACLU and Reno v. ACLU, speech that takes place through electronic mediums is entitled to traditional free speech protections. Although online speech is still protected speech, this right to speak freely is not absolute. In certain situations, schools may respond to cyberbullying and discipline a student, and in other situations, the school must respond. In other words, the legal rules in this area are not black and white; instead, everything is gray. This puts schools and school administrators in a difficult legal predicament: if they respond, they may violate the First Amendment; if they do nothing, they may be reprimanded for failure to act.
According to the standard set forth in
Hazelwood School District v. Kuhlmeier, schools may impose educationally based restrictions on student speech. This standard applies when students are on school property, and most likely when they are using the property of the school district to convey harmful messages (i.e. the district-wide computer system). If the student’s speech constitutes a true threat, then schools must act, and failure to do so can result in expensive and time-consuming lawsuits against both the school and school officials.
An area that is even more unclear is when the harmful speech occurs both online and off school property. In Tinker v. Des Moines Independent Community School District, the U.S. Supreme Court implemented a standard where schools could respond in such precarious situations. According to the Tinker standard, school officials may respond and discipline the cyberbully-student if the speech that he or she produces either causes a material or substantial disruption in the school environment, or infringes on the privacy rights of others. Although this standard gives schools a little leeway in disciplining students for speech that occurs off school property, recent case law suggests that this is a difficult standard to meet.
The U.S. Supreme Court has made it clear that online speech is entitled to the same protections as traditional speech. What has long been protected in the physical community is now protected in the online community. Although some may argue that cyberbullying is a form of anti-social behavior, it is imperative to remember that when we step foot in any community we are subjecting ourselves to dialogue that is often disagreeable, offensive, and sometimes antisocial. As a result of the guarantees provided by the First Amendment, a legal remedy to the problem of cyberbullying is not the most effective solution.
The Court has made it evident that it will not tread on the liberties that were guaranteed to us in a time when the idea of an Internet or cellular phone had yet to become a distant thought or reality. In an area where the rules need to be black and white, we are still living in almost total grayness. The Court has made clear that "[b]road prophylactic rules in the area of free expression are suspect…Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms." In other words, the Court has essentially refrained from giving us clear guidelines when dealing with online free speech situations. So, better laws will have to develop to address cyberbullying (which will likely begin at local and state levels).
Finally, let’s wrap this article up by going over a few key points.