Cyberbullying- no clear precedent

Heather Buechner

4/1/15

Cyberbullying can be anything from teasing texts to harassing someone online. Cyberbullying consists of willful and repeated harm inflicted through phones and computers. Since social media and texting has only really existed in the last few decades, there is no clear legal precedent for cyberbullying yet. The article, “WILL THE SUPREME COURT CONSIDER CYBERBULLYING?”, written by Thomas A. Jacobs, tells us that the Supreme Court has not yet granted certiorari in a case involving off-campus digital speech by a student, and it is not something that will happen anytime soon. There was, however, a bill in 2008, that was introduced by Congress after Megan Meier’s suicide in 2006, called Megan Meier Cyberbullying Prevention Act. As we talked about in class, unfortunately, there was not enough support for the bill to become law.

            The article tells us that although the Supreme Court did not grant certiorari on any cases involving cyberbullying, the Supreme Court did address students’ free speech and expression in four distinct cases. The first case, Tinker v. Des Moines Independent Community School District, was also discussed in class. This case, from 1969, was about whether wearing symbolic armbands to protest the Vietnam War was protected speech or not. It was decided that it was protected, under what was called the disruption test. The disruption test says that student speech is not protected under the First Amendment if it upsets the educational environment or violates the rights of others. In 1986, an exception to this test was created in the case, Bethel School District v. Fraser. It was decided in this case that school authorities could regulate obscene or lewd student speech, and students could be punished. In this particular case, Matthew Fraser referred to what was considered sexually explicit content in a speech in front of an audience of teenage students, and got a three-day suspension. In 1988, in Hazelwood v. Kuhlmeier, it was decided that schools could censor student speech that is “poorly written, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences.” This specific case was about a student journalist that wrote about teen pregnancy and divorce. Lastly, in 2007, in Morse v. Frederick, it was ruled that schools could censor speech that is “reasonably viewed as promoting drug use.” This case was concerned with a banner that read “Bong Hits 4 Jesus”.

            Since these 4 cases, Tinker, Fraser, Hazelwood, and Morse, serve as a foundation for future cases, the Supreme Court does not find it necessary to grant certiorari and create another exception for this new method of communication—computer mediated communication. This article goes on to talk about five cases that have been litigated in federal courts, which all used Tinker or any of the other cases I referred to as foundation. Each of these five cases actually filed a petition for certiorari, but were denied. 

            As well as these case precedents involving student free/protected speech that future cases can use for guidance, states have created laws against cyberbullying as well. Some states have created legislation addressing cyberbullying as “electronic harassment”. Every state has laws that cover stalking, intimidation, harassment, and threatening, which are acts that can be involved in cyberbullying.