By Emily Bazelon
In November 2007, the origin story of cyberbullying broke in print and then hit the
internet. The St. Charles Journal published an article about the suicide, a year earlier, of
Megan Meier, a 13-year-old from the St. Louis suburbs. As an 8th grader at a Catholic
school, Megan played volleyball, wore braces, and worried about her weight. When she
persuaded her parents to let her have a MySpace account, she called herself Megan Babi
and chose the instant-messaging handle prettynbling16. Megan exulted when she started
getting messages on MySpace from a 16-year-old boy named Josh Evans. In his profile
picture, he had blue eyes and nice brown hair. He said his goal for the next year was “to
meet a great girl.” Josh said he‟d just moved to a nearby town and was being home
schooled. When Megan posted a picture of herself wearing a tiara, Josh wrote, “You‟re
my beautiful princess.”
Megan asked to talk to Josh on the phone, and he said he didn‟t have a phone yet. Her
mother wondered if Josh was real. Concerned about shielding her daughter, who was
taking medication for depression, Tina Meier called the police to ask if they could verify
a MySpace account. They said they couldn‟t. Meier was right to worry: Josh Evans was
actually the creation of her neighbor, Lori Drew, and an 18-year-old who worked for
Drew‟s direct mail business, Ashley Grills. (The two have disputed who actually set up
the Josh account and wrote the posts but they have both admitted that they knew about
it.) Drew had a 13-year old daughter, with whom Megan had an intense, on-again, off-
again friendship, according to an excellent New Yorker article about the case by Lauren
Collins. Megan had gone on vacation with the Drews, but the girls were fighting at the
time imaginary Josh appeared online. Lori Drew later told the police that the idea behind
the fake account was to find out what Megan was saying about her daughter on MySpace.
In the middle of October, according to Collins, another girl in the neighborhood got the
password to the Josh Evans account and wrote to Megan, “I don't know if I want to be
friends with you anymore because I've heard that you are not very nice to your friends.”
Megan wrote back a series of confused and distressed messages. The next day, an “insult
war,” as Collins calls it, broke out between Megan, fake Josh, and some other kids.
Megan called one girl a slut. The insult was returned in kind. The last message from the
Josh account read, “You‟re a shitty person, and the world would be a better place without
you in it.” Twenty minutes later, Megan hanged herself in her bedroom with a cloth belt
her mother had gotten her from Old Navy.
About a month later, the Meiers learned from a neighbor about Lori Drew‟s role in
creating the Josh account, which had disappeared from MySpace. For nearly a year, they
kept quiet while the police investigated. But after local law enforcement decided Drew
hadn‟t committed a crime, the Meiers told their story to the St. Charles Journal. The
initial newspaper article didn‟t name Drew; the reporter explained that he was trying to
protect her daughter‟s privacy. But enraged readers matched published details with
property records, and posted Drew‟s name and home address online. When the police
dismissed Drew‟s MySpace shenanigans as merely “rude” and “immature,” the story
ricocheted from blogs to the national news to morning television. Lori Drew became the
cyberbullying mother from hell. And outrage over Missouri‟s decision not to prosecute
her fueled a new wave of laws that expanded the definition of harassment, stalking, and
bullying to encompass the Internet.
Missouri was one of the first states to pass such a law, in August 2008. The legislation
expanded the crime of harassment to include harassment by electronic means. And it
increased the penalty from a misdemeanor to a felony, with a maximum four-year prison
sentence. The state “needs tough laws to protect its children,” Governor Max Blount said
in signing the legislation.
Since then, a total of 35 states have passed laws that address electronic harassment and
cyberbullying. Nine of the laws criminalize the online harassment. Most of them,
however, are directed at schools. Some of the laws simply require local school boards to
come up with policies that address bullying and cyberbullying. But others tell the schools
to come up punishments for students. California and Nebraska explicitly state that
cyberbullying may be the basis for suspension or expulsion.
In other words, even though the alarm about online harassment was initially sounded over
a viciously manipulative adult, lawmakers have mostly turned to schools to solve the
problem of cyberbullying. That‟s partly because other well-publicized suicides of
students that have been linked to online attacks from other kids. And it‟s partly because
parents dealing with ordinary and less tragic examples of online cruelty print out the
evidence and come to school asking for help. If administrators take it upon themselves to
intervene, they have the burden of investigating and then playing prosecutor and judge, as
Jan Hoffman pointed out in 2010 in the New York Times. Hoffman‟s story details an
investigation at a middle school in the New Jersey suburbs that sucked up hours of
administrators‟ time, only to lead to a dead end. When Principal Tony Orsini broke that
news to the parents who had begged him for help, he said, “They were still in so much
pain. They wanted us to keep investigating.”
Many schools do. And most of the principals I‟ve talked to say they want to know
whatever they can about online bullying, because of the way it feeds in-person conflicts
in school. But what the principals and their staff can do about online bullying is a tricky
and unsettled legal question. After all, text messages and posts on Facebook and
YouTube are a form of free speech. What kind of authority should schools have over how
kids express themselves while they‟re off campus, however cruelly?
***
The analysis always begins with a famous 1969 Supreme Court decision. In the case
Tinker v. Des Moines Unified School District, three students wore black armbands to
school to protest the Vietnam War. The school ordered them to take off the armbands,
they refused, and they were suspended. A lower court said the suspension was within the
school‟s authority.
The Supreme Court reversed that ruling, and in a passage that‟s been quoted countless
times, Justice Abe Fortas declared, “It can hardly be argued that either students or
teachers shed their constitutional rights to freedom of speech or expression at the
schoolhouse gate.” Given their First Amendment right to freedom of expression, students
could only be punished for their speech in school (the armband counted as speech), the
ruling continued, if they substantially or materially disrupted the school‟s operation, or if
school authorities “reasonably forecast” such a disruption.
In the years since, the Supreme Court has added a few exceptions to Tinker‟s pro-speech
rule. Schools can discipline a student for making “lewd” remarks at a school assembly,
even if the vulgarity doesn‟t cause a substantial disruption. They can delete articles from
a school newspaper, because tolerating a student‟s speech is different than affirmatively
promoting it in a school-sponsored publication. And in a 2007 case decided by a vote of 5
to 4, the Supreme Court ruled 5-4 that a school could suspend a senior named Joseph
Frederick who unfurled a 14-foot banner reading "BONG HiTS 4 JESUS" on the street in
front of his high school, which he was going to the Olympic Torch Relay. The court
rested its decision on the authority of schools to restrict speech that is “reasonably viewed
as promoting illegal drug use."
The Bong Hits 4 Jesus case, as it‟s inevitably known, drove First Amendment
advocates bonkers. There was nothing lewd or offensive about the words on Joseph
Frederick‟s banner. They weren‟t school-sponsored. And he was standing outside
his schoolhouse gates. Shouldn‟t he have had a strong right to free speech, by the
logic of Tinker? But the Supreme Court got around the first objection by carving
out another exception when student speech promotes drug use, and by calling the
students‟ observation of the Torch Relay an “approved social event or a class trip,”
because the principal of Joseph‟s school had given them permission to watch. In
the end, Bong Hits 4 Jesus is a narrow ruling, but also one that bred confusion
about what Tinker stands for. “We continue to distance ourselves from Tinker, but
we neither overrule it nor offer an explanation of when it operates and when it does
not,” Justice Clarence Thomas complained in concurring in the Bong Hits 4 Jesus
ruling. “I am afraid that our jurisprudence now says that students have a right to
speak in schools except when they don‟t.”
Since the Supreme Court has never heard a case about off-campus student speech, the
lower courts have been left to sort out whether, or in what circumstances, schools can
discipline kids who cause trouble online. In these cases, the kids are communicating,
however cruelly, on their own time and off campus, beyond the physical reach of a
teacher or administrator. Often the connection to school is mostly about the relationships
among the students. Is that enough? Should the principal—as opposed to a parent or a
cop—be the person responsible for deciding the punishment for cyberbullying?
It‟s a burden that some schools find overwhelming. Tony Orsini, the principal in
Ridgewood, N.J., made national news by sending parents an email one spring that read:
“There is absolutely NO reason for any middle school student to be part of a social
networking site.” If you think your child is being harassed online, Orsini instructed,
“IMMEDIATELY GO TO THE POLICE!”
But it‟s not clear that‟s the right answer, either. In some cities, the police say they have
more important things to do than deal with Facebook thugs. When they do intervene, they
bring the power of law enforcement with them, for better or worse. Sometimes a warning
from the police helps kids straighten out. But the police have also come down far harder
on kids for cyberbullying—and especially for sending sexually explicit messages or
pictures. In the most extreme cases, kids have been convicted of child pornography,
which means they must register as sex offenders. The National Association of District
Attorneys has said these prosecutions are usually a bad idea, because child pornography
laws written to protect kids shouldn‟t be enforced against them.
This takes us back to parents and their frequent appeals for help to schools—and to the
legal dilemma schools face about how to respond. The constitutional right students have
to free speech is of course rooted in the constitution, which applies equally throughout
the country. And lower courts have come up with very different answers as they‟ve
struggled to apply the old rule of Tinker to the new online world.
Compare the cases of Jessica Cohen and Kara Kowalski. One day after school, Jessica, a
13-year-old 8th grader, went to a restaurant with a few of her friends and made four and a
half minute video. It shows the girls talking about a fellow student named Carina. On
camera, Jessica‟s friends call Carina a slut and “the ugliest piece of shit I‟ve ever seen in
my whole life.” Off camera, Jessica encourages the other girls to “continue with the
Carina rant.” One student asked, “Am I the only one who doesn‟t hate Carina?”
That night, Jessica posted the video on YouTube and told a bunch of other students,
including Carina, about it. Overnight, the video got about 90 hits. The next morning at
school, Jessica said she heard about 10 kids talking about it. Carina came to school with
her mother and showed a counselor the video. Carina cried, said she felt humiliated, and
didn‟t want to go to class. It took the counselor about 25 minutes to convince her to go to
her first period. The school suspended Jessica for two days for making and posting the
video. Jessica‟s father, a music industry lawyer in Los Angeles, sued the school over
Jessica‟s suspension. “What incensed me was that these people were going to suspend my
daughter for something that happened outside of school,” he told the New York Times.
Kara Kowalski brought the same kind of lawsuit in West Virginia. When she was a senior
in high school, Kara created a page on MySpace called S.A.S.H. She invited 100 of her
MySpace friends to join the page, and about two dozen did. According to one of them,
S.A.S.H. stood for “Students Against Shay‟s Herpes,” a reference to another girl at
Kara‟s school. Kara wrote on the page as a subheading, “No No Herpes, We don‟t want
no herpes.” A classmate, Ray, posted a photo of himself and a friend holding their noses,
with a sign that read “Shay Has Herpes.” Kowalski wrote back to him, “You are soo
funny!=)” Ray added two more pictures of Shay. In one, he drew red dots on her face and
added a sign in front of her pelvis that read “Warning: Enter at your own risk.” The
second photo showed Shay‟s face with the caption “portrait of a whore.” Other students
weighed in with approving comments: “Haa… screw her,” “This is great,” “Kara=My
Hero.”
A few hours later, Shay‟s father called Ray furious, and Ray called Kara. She tried to
delete the S.A.S.H. page and take down the photos, but couldn‟t. In the morning, Shay
and her parents went to the school and showed the principal S.A.S.H. on her computer.
Shay missed her classes that day. She said she felt uncomfortable sitting with students
who‟d posted such nasty things about her.
The principal questioned Kara and Ray, and they admitted what they‟d done. The
principal decided that Kara had violated the school‟s policy against harassment, bullying,
and intimidation. Kara was suspended for 10 days, later shorted to five after her parents
protested. Kara also wasn‟t allowed to cheerlead for the rest of the school year. And she
lost the privilege of crowning the high school‟s next Queen of Charm, otherwise hers as
the outgoing Queen.
In the lawsuits they filed, Kara and Jessica‟s lawyers both argued that the girls‟
suspensions violated their First Amendment free speech rights. From a legal standpoint,
the facts in the two cases are virtually identical. The courts that heard the cases started in
the same place with the same law, from Tinker and the other related Supreme Court
precedents.
The U.S. Court of Appeals for the Fourth Circuit, which heard Kara‟s case, treated
S.A.S.H. in essentially the same way it would have treated a mean note passed at school.
Judge Paul V. Niemeyer‟s opinion rejects Kara‟s argument that the school had no power
to discipline her for a post she wrote off campus. Instead, Niemeyer saw the case as
raising a “metaphysical question” about where Kara‟s speech occurred. “Kowalski indeed
pushed her computer‟s keys in her home, but she knew that the electronic response would
be, as it in fact was, published beyond her home and could reasonably be expected to
reach the school or impact the school environment,” the judge wrote.
Pointing out that bullying is a major concern for schools, Niemeyer said that S.A.S.H. “is
not the conduct and speech that our educational system is required to tolerate.” He gave a
nod to the idea that “there is surely a limit to the scope of a high school‟s interest” in off-
campus student speech. But the judge didn‟t try to define that limit, because he concluded
that because Kara‟s MySpace posting was directed at Shay, the connection to school was
strong enough to justify the suspension. Kara‟s school simply had to show that it was
reasonably foreseeable that the MySpace page would create a substantial disruption, just
as it would have to discipline a student for on-campus speech. Instead, Niemeyer said that
the disruption was the “targeted, defamatory nature” of the MySpace page itself, and the
(theoretical) “potential for continuing and more serious harassment of Shay N. as well as
other students.”
Judge Stephen V. Wilson began with a similar approach to Jessica and her YouTube
video. Like Niemeyer, he held that Tinker applies to both on-campus and off-campus
student speech. In other words, on her own time, Jessica didn‟t have the same First
Amendment right an adult would have to say whatever she wanted about Carina (subject
to the law of libel and defamation). Jessica would win or lose depending on whether her
YouTube video created, or was reasonably likely to have created, a substantial disruption
of school activities. Here Wilson parted company from Niemeyer. He found that the
YouTube video had not created such a disturbance: It wasn‟t enough that Carina had
missed part of one class. So Wilson‟s inquiry came down to whether school officials
were reasonable to worry about a disruption when they punished Jessica.
Wilson looked at the school‟s evidence. He said that it had to consist of more than “a
mere desire to avoid the discomfort and unpleasantness that always accompany an
unpopular viewpoint.” This line is from Tinker, and you can feel the strain of applying it
to bullying: Opposing the Vietnam War is taking an unpopular viewpoint; calling a girl a
slut seemed to make Kara Kowalski more popular. In any case, it‟s hardly in any
hallowed tradition of political speech. Never mind, Judge Wilson carried on. He pointed
out that Jessica‟s video was not violent or threatening, and that there was no evidence that
it sparked a whisper campaign against Carina. He acknowledged that she “felt
embarrassed, her feelings were hurt, and she temporarily did not want to go to class,” but
concluded, “these concerns cannot, without more, warrant school discipline.” Wilson
continued:
The Court does not take issue with Defendants' argument that young students
often say hurtful things to each other, and that students with limited maturity may
have emotional conflicts over even minor comments. However, to allow the
School to cast this wide a net and suspend a student simply because another
student takes offense to her speech, without any evidence that such speech caused
a substantial disruption of the school‟s activities, runs afoul of Tinker…. For the
Tinker test to have any reasonable limits, the word „substantial‟ must equate to
something more than the ordinary personality conflicts among middle school
students that may leave one student feeling hurt or insecure.
In the end, Wilson directed Jessica‟s school to wipe out her suspension. In doing so, he
took Tinker at its word: Students have a right to free speech unless that speech really
disrupts the workings of their school. The Fourth Circuit, on the other hand, upheld
Kara‟s punishment without a meaningful inquiry into a real or potential disruption.
Perhaps Judge Niemeyer let his underlying feelings about the case show when inclosing
he chided Kara for suing in the first place: “Rather than respond constructively to the
school‟s efforts to bring order and provide a lesson following the incident, Kowalski has
rejected those efforts and sued school authorities for damages and other relief.
Regretfully, she yet fails to see that such harassment and bullying is inappropriate and
hurtful and that it must be taken seriously by school administrators.”
In one sense, it‟s not that difficult to square these two divergent outcomes. Niemeyer and
Wilson‟s opinions simply represent varying interpretations of similar facts, an
unremarkable feature of judicial decision making. If you think Niemeyer‟s analysis is
unpersuasive, as I do, you can identify his mistake as failing to conduct much if any
inquiry into the actual or potential for substantial disruption. The problem isn‟t
necessarily with the Tinker test, but rather with one judge‟s application of it.
And yet I think that answer is too easy, for two reasons. The first is that Judge Wilson‟s
analysis, though in my view legally more correct than Judge Niemeyers, landed him in a
strange place. Wilson concluded that a school shouldn‟t be able to suspend a student
simply because “simply because another student takes offense to her speech.” But of
course, schools punish students all the time for taunting or ganging up on each other in
school. It‟s the off-campus context of Jessica‟s video that changes the equation. Once he
decided that he was constrained by the case law to ignore this key feature of the case,
Judge Wilson (inadvertently, I imagine) callously minimized the meanness of Jessica and
her friends.
The second larger problem with Tinker is its deeply subjective nature. In these two
virtually identical cases, one court seemed inclined to give schools broad authority to
punish online bullying, and did so. The other court seemed more concerned about
protecting the free speech of students, and did that. The conjectural nature of the test—
what school officials think might have happened if they hadn‟t acted—makes it
extremely malleable. Perhaps the Supreme Court should revisit Tinker for this reason. Or
at least, perhaps Tinker should not apply at all to off-campus speech, given the scope of
student expression that schools in these cases are trying to control.
The dilemma is this: What‟s the difference between the cruelty of S.A.S.H. and the
cruelty of screaming insults at a fellow student at a mall or in a parking lot? If Kara had
yelled “Students against Shay‟s herpes!” at Shay, goading other students to pile on, and
Shay had caught Kara‟s voices on her iPhone‟s recording device and brought that to the
principal, would Kara have been suspended? Should she have been? Niemeyer‟s opinion
states that there‟s a limit to the off-campus speech that schools can address. But it‟s hard
to see how his analysis actually provides for one. When Niemeyer framed S.A.S.H. as
speech that the “educational system is required to tolerate,” (my italics) he opened the
door to school discipline for any bullying that a parent brings to the school‟s attention, no
matter where it takes place. Flash back to Principal Orsini: In this era of No Child Left
Behind, when schools are under increasing pressure to boost student achievement, is
misconduct online a burden we can reasonably expect them to shoulder? Do they have
the resources? Do we want this level of intrusion into the lives of kids and their families?
We don‟t expect principals to punish kids for physical fights they have outside of school.
Should they take on the task of punishing students for off-campus conflict just because
the evidence can be downloaded from the internet?
I don‟t think you have to be a First Amendment zealot to worry over these questions. As
Judge D. Brooks Smith wrote in a student speech case before the U.S. Court of Appeals
for the Third Circuit:
Suppose a high school student, while at home after school hours, were to write a
blog entry defending gay marriage. Suppose further that several of the student„s
classmates got wind of the entry, took issue with it, and caused a significant
disturbance at school. While the school could clearly punish the students who
acted disruptively, if Tinker were held to apply to off-campus speech, the school
could also punish the student whose blog entry brought about the disruption. That
cannot be, nor is it, the law.
****
The Supreme Court has, in fact, offered up an alternative to the substantial disruption
test. It‟s a legal road-rarely-taken that also comes from Tinker. Along with allowing
schools to punish students for speech that causes a substantial disruption, the Supreme
Court also said schools can discipline for speech when it interferes “with the rights of
other students to be secure and let alone.” The court has not elaborated on what this
means. Perhaps it relates in some way to the legal concept of a hostile work environment,
tailored to schools, as Connecticut suggests in its recently enacted cyberbullying statute.
The state directs schools to address online bullying if it “creates a hostile environment at
school for the victim, or infringes on the rights of the victim at school,” as well as if it
“substantially disrupts the education process or the orderly operation of a school.”
In Jessica Cohen‟s case, Judge Wilson mentioned the “right to be secure and let alone.”
But he correctly said that its scope is unclear and that lower courts have rarely used it.
Then he brought up the exception that helps explain the way in which this test can
swallow the rule of student free speech: A California case called Harper v. Poway.
Harper‟s facts all take place on the school campus. In 2004, the Gay-Straight Alliance at
Poway High School held a Day of Silence to draw attention to homophobia. The next
day, sophomore Tyler Chase Harper wore a T-shirt to school with the words “BE
ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED,” on the
front, and “HOMOSEXUALITY IS SHAMEFUL „Romans 1:27‟” on the back. A teacher
sent Tyler to the principal‟s office. The principal told him the shirt was “inflammatory”
and reminded him that the year before, the Day of Silence had provoked tension between
students who observed it and students who opposed its message accepting homosexuality.
When administrators asked him to take off the T-shirt, Harper asked to be suspended.
Instead, they kept him in the principal‟s office for the day. It was a mild sanction that
didn‟t go on his record. But Harper sued anyway, arguing that his free speech rights had
been violated.
When the U.S. Court of Appeals for the Ninth Circuit got the case, Reinhardt rejected
Harper‟s suit for the majority, over a dissent by Judge Alex Kozinski. Reinhardt found
that being “secure,” as Tinker provides for, “involves not only freedom from physical
assaults but from psychological attacks that cause young people to question their self-
worth and their rightful place in society.” Poway could stop Harper from wearing his T-
shirt because it “was injurious to gay and lesbian students and interfered with their right
to learn.” Reinhardt continued,
Such disagreements may justify social or political debate, but they do not justify
students in high schools or elementary schools assaulting their fellow students
with demeaning statements: by calling gay students shameful, by labeling black
students inferior or by wearing T-shirts saying that Jews are doomed to Hell. …
There are numerous locations and opportunities available to those who wish to
advance such an argument. It is not necessary to do so by directly condemning, to
their faces, young students trying to obtain a fair and full education in our public
schools.
Judge Kozinski saw this as an assault on core First Amendment rights. He analyzed the
facts through the traditional lens of Tinker‟s disruption test, and found them lacking.
Then he wrote:
But there is a more fundamental issue here. The record reveals quite clearly that
Harper's t-shirt was not an out-of-the-blue affront to fellow students who were
minding their own business. Rather, Harper wore his t-shirt in response to the Day
of Silence, a political activity that was sponsored or at the very least tolerated by
school authorities….I find it far more problematic—and more than a little
ironic—to try to solve the problem of violent confrontations by gagging only
those who oppose the Day of Silence and the point of view it represents.
The Supreme Court vacated the judgment in Harper as moot. Still, Reinhardt and
Kozinski are worth reading because they articulate the tension between protecting
vulnerable high school students (gay teenagers are far more likely than straight ones to be
harassed and to attempt suicide) and treating them as close-to-mature political actors.
The underlying question here is which view better serves the students and their
development. High school students “should not be „raised in an intellectual bubble,‟” as
Judge Richard Posner has written. The rule, he continued, is that “the younger the
children, the more latitude the school authorities have in limiting expression.”
Posner wrote this in a case much like Harper. Following a Day of Silence at a high
school in Naperville, Ill., students who objected to homosexuality observed a
conservative Christian national event called the Day of Truth. A student named Heidi
Zamecnik, wore a T-shirt with the words “Be Happy, Not Gay,” on the back. A school
official inked out the phrase “Not Gay” as a violation of a school rule forbidding
derogatory comments about race, ethnicity, religion, gender, sexual orientation, or
disability. Like Kozinski, but writing for the majority on the U.S. Court of Appeals for
the Seventh Circuit, Posner found that:
a school that permits advocacy of the rights of homosexual students cannot be
allowed to stifle criticism of homosexuality. The school argued (and still argues)
that banning “Be Happy, Not Gay” was just a matter of protecting the “rights” of
the students against whom derogatory comments are directed. But people in our
society do not have a legal right to prevent criticism of their beliefs or even their
way of life.
Surveying the case law, Posner observed that it does not establish “a generalized „hurt
feelings‟ defense to a high school‟s violation of the First Amendment rights of its
students.” Since the school had little or no evidence of a potential disruption, he found
after a fact-specific inquiry, its act of censorship was unconstitutional.
Unlike Wilson, Posner didn‟t reach this conclusion by minimizing the damage unkind
teenagers can do. He acknowledged that severe harassment “blends insensibly into
bullying, intimidation, and provocation, which can cause serious disruption of the
decorum and peaceable atmosphere of an institution dedicated to the
education of youth.” And within the bounds of Tinker, he would give school authorities
discretion to determine when the line has been crossed “between hurt feelings and
substantial disruption of the educational mission.”
But Posner didn‟t have to decide whether the same holds true when the speech at issue
takes place on Facebook or YouTube or MySpace. No one questioned Heidi‟s right to
wear her “Be Happy, Not Gay” T-shirt outside of school.
***
Let‟s say that Judge Smith is right, and Tinker‟s restrictions should not apply to the
content students post online. The question that remains is how to help Carina and Shay
and deal with Jessica and Kara. If you were a parent at one of these schools—not the
mother or father of one of these four kids, but of a classmate—would you want to leave
Jessica and Kara‟s punishment up to their parents? Or would you want them also to face
some kind of school sanction?
My own reaction to this gut-check question is that once a post like S.A.S.H. circulates
widely among kids, some public reckoning is due. When I‟ve discussed this with
psychologists who work on bullying prevention, they‟ve agreed. Yet crucially, they‟ve
pointed out that even if schools don‟t have the legal authority to suspend or otherwise
discipline for online bullying, they can still talk to the students and parents involved.
Administrators and guidance counselors can still use a nasty Facebook thread that comes
to their attention to teach a lesson.
When I ran this idea by a few principals, some agreed and others expressed doubt. The
doubters told me that if they‟re going to take on cyberbullying, they need all the tools of
discipline at their disposal.
I‟m not sure the principals trump the psychologists. In my reporting, I‟ve found that
serious instances of cyberbullying have an in-school component: The bullies live in the
real world and in the virtual one, and their taunting or other tactics moves back and forth
with them. If suspension is the best solution, how much would we lose by requiring
schools to base it on what happens inside the school? Another related and also unresolved
question: If the courts stopped schools from punishing kids for cyberbullying, how many
more of these cases would wind up in the hands of the police?
Here‟s a sunnier possibility: Perhaps if schools couldn‟t punish kids for starting an online
page like S.A.S.H. or for wearing a T-shirt like Chase Harper‟s, they‟d come up with
more creative ways of responding to the issues the controversial speech raises. Most of
the cases don‟t treat school as a marketplace of ideas, to use the classic formulation for a
strong First Amendment. They have good reason not to: Kids are more vulnerable and
subject to greater legal protection than adults.
At the same time, I‟m struck by a coda to Heidi Zamecnik‟s case. Judge Posner tells us
that after Heidi filed her suit against the school, someone created a Facebook page called
“Be Happy! Not Heidi.” OK, that sounds mean (though also fairly clever). But Posner
said that of hundreds of comments posted there, only one was a threat: “someone tells me
where she lives, i will fuck up her house, car, and whatever else i can find”, and that this
prompted a sensible comment from another student: “you sound just as stupid as she
does.”
Posner continued, “Many of the comments addressed substantial issues involving First
Amendment claims, school policies, treatment of homosexual students, and the role of
the media in the dispute; and apart from the obsessive use of expletives—a defining
feature of modern American culture, by no means limited to teenagers—the discussion of
the issues was substantive, and even, to a degree, thoughtful.”
The judge gave a few examples:
“More than anything, this case boils down to an issue of constitutional rights.
And frankly, school rules override the constitutional rights of minors in the public
school system. The school has the right to search and seizure at any time, despite
constitutional law. Similarly, „free speech‟ doesn‟t apply in public schools,
because school rules are more specific.”
“I‟m very glad that so many people are banding together against discrimination,
just please go about it in a classy and mature way.”
“Heidi isn‟t suing because she hates gays, she‟s suing because she was harassed
for being active in what she believes in. I also think that if you were put in her
situation, you‟d fight tooth and nail to get whatever fucking point it is you are
trying to get across. With every good, there is the bad. You have to take it in
stride, not make up some stupid community making fun of someone.”
The high school students in Naperville, at least, apparently deserve more credit than their
school gave them. Jessica Cohen and Kara Kowalski, by contrast, put a less appealing
face on adolescence. Schools of course have to deal with all kinds of teenagers. Still, as
courts continue to grapple with cases in which schools police students online, it‟s worth
remembering the old adage that sometimes the best answer to speech is more speech. For
teenagers as well as adults.
Sources:
Steve Pokin, MySpace Hoax Ends with Death of Dardenne Prairie Teen, St. Charles
Journal, Nov. 11, 2007.
Lauren Collins, Friend Game, New Yorker, Jan. 21, 2008.
Jan Hoffman, Online Bullies Pull Schools into the Fray, New York Times, June 27, 2010.
Sameer Hinduja and Justin Patchin, State Cyberbullying Laws, www.cyberbullying.us,
updated Sept. 2011. http://www.cyberbullying.us/Bullying_and_Cyberbullying_Laws.pdf
Tinker v. Des Moines Unified School District, 393 U.S. 503 (1969).
Bethel School District v. Fraser, 478 U.S. 675 (1986).
Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988).
Morse v. Frederick, 551 U.S. 393 (2007).
J.C. v. Beverly Hills Unified School District, 711 F.Supp.2d 1094 (C.D.Cal. 2010).
Kowalski v. Berkeley County Schools, 2011 U.S. App. LEXIS 15419 (4th Cir. 2011).
Harper v. Poway Unified School District, 445 F.3d 1166 (9th Cir. 2006) (vacated as moot
549 U.S. 1262 (2007)).
Zamecnik v. Indian Prairie School District #204, 636 F.3d 874 (7th Cir. 2011).