Cyber-Bullying – Look to the Victim when A Bully Claims First Amendment Protection

Contributed by Christopher L. Voltz

In light of the recent J.S. v. Blue Mountain School District and Layschock v. Hermitage School District cases, which the U.S. Supreme Court declined to hear, schools may be reluctant to regulate off-campus, online speech. In each of these cases:

  • A student accessed the Internet from a home computer
  • Created a fake MySpace profile of a principalVoltz, Chris
  • Posted vulgar comments, supposedly made by the principal.

In each case, the Third Circuit held that the school failed to demonstrate that the student’s conduct was “materially and substantially” disruptive or that it “reasonably” led the school to forecast a material and substantial disruption.  Accordingly, the court found that he students’ speech was protected by the First Amendment and that the students could not be disciplined.

While the terms “substantial,” “reasonable,” and “material” are often used by judges and lawyers, they are not always easy to apply in real world situations and do not always lead to predicable results.  For example, in Kowalski v. Berkeley County School District, the Fourth Circuit, applying the same constitutional test to a similar fact pattern, reached a different result.  In Kowalski, a student, from a home computer, created a fake MySpace profile to mock a fellow classmate.  The Fourth Circuit found that the student’s conduct was materially and substantially disruptive and that the student could, and should, be punished for creating the internet profile.

In all three cases, the profiles were created from home, spread throughout the school and were analyzed under the same constitutional test.  So why was the result in Kowalski different than the results in J.S. and Layshock?  It is hard to imagine that the MySpace profile Kowalski created was more materially and substantially disruptive than those in the Third Circuit cases.  The real deciding factor may have been that the victim in Kowalski was a student and the victims in J.S. and Layshock were adult employees of the school.

This suggests that a bright-line test may exist to protect students from cyber-bullying.  At the very least, the courts have indicated a willingness to protect bullied students and not allow their attackers to hide behind the First Amendment.

While J.S. and Layshock make it difficult for schools to discipline students for out of school defamatory speech directed at adult employees, schools should still be vigilant about protecting students from cyber-bullying, wherever and whenever it occurs.