A Summer of Cyberbullying Law

The Third Circuit seems to have said no; the Fourth Circuit seems to have said yes. But, as with many things in the law, the answer is not so clear cut.

Layshock was not really a Tinker case. At oral argument, the school essentially conceded the point that there was no real or danger of a potential disruption, though counsel still tried to argue that the school had to make some changes to address the page, like cut off Internet access and cancel classes. That sounds like a significant disruption in some circles. Rather, the school's real argument was prior to and independent of any disruption. It argued that the website was vulgar and lewd, and pursuant to Bethel School District v. Fraser, schools can discipline students for lewd and vulgar speech even if it did not cause a disruption (Fraser is one of three exceptions to Tinker's disruption test). The problem was the connection between the school and the speech. In Fraser, the student delivered his lewd speech at a school assembly, on school grounds; in Layshock, the school needed a nexus between the speech and the school. By the school's argument, the fact that the speech made its way on to campus and caused chatter and a reaction from the administration was enough for the nexus to trigger a school's disciplinary authority. The Third Circuit said no, the chatter and official reaction was insufficient both as a nexus and a disruption (addressing both Fraser and Tinker).

Kowalski was treated as a Tinker case and the Fourth Circuit accepted the school's argument that the MySpace page created a "substantial disruption." Here is part of what the court said in this regard:

We are confident that Kowalski’s speech caused the interference and disruption described in Tinker as being immune from First Amendment protection. The “S.A.S.H.” webpage functioned as a platform for Kowalski and her friends to direct verbal attacks towards classmate Shay N. The webpage contained comments accusing Shay N. of having herpes and being a “slut,” as well as photographs reinforcing those defamatory accusations by depicting a sign across her pelvic area, which stated, “Warning: Enter at your own risk” and labeling her portrait as that of a “whore.” One student’s posting dismissed any concern for Shay N.’s reaction with a comment that said, “screw her.” This is not the conduct and speech that our educational system is required to tolerate, as schools attempt to educate students about “habits and manners of civility” or the “fundamental values necessary to the maintenance of a democratic political system.”

That disruption is qualitatively different than the insufficient disruption in Layshock. In the latter case, it was so insufficient that the school conceded the point. In Kowalski, the disruption was bound up with the nature of the aggression, not its effects.

These two decisions raise more questions than provide answers. The two cases seem to conflict when it comes to the nexus necessary between online speech and the school environment. In Layshock, the fact that the speech reached the school or that Mr. Layshock could have anticipated that it would (and even accessed it on campus) was not enough. In Kowalski, less appeared to have been required:

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. She also knew that the dialogue would and did take place among Musselman High School students whom she invited to join the “S.A.S.H.” group and that the fallout from her conduct and the speech within the group would be felt in the school itself. Indeed, the group’s name was “Students Against Sluts Herpes” and a vast majority of its members were Musselman students. As one commentator on the webpage observed, “wait til [Shay N.] sees the page lol.” Moreover, as Kowalski could anticipate, Shay N. and her parents took the attack as having been made in the school context, as they went to the high school to lodge their complaint.

To its credit, the Fourth Circuit recognizes that Tinker referred to "disruption" and impairments to "the rights of others," the latter addendum being something that many judges forget. But, the court's analysis of the disruption shows how little guidance there is for district and appellate courts considering these questions. The court pointed to what the S.A.S.H. page allowed students to do and the nature of the attacks on Shay N. It mentioned only that the attacks caused Shay N. to miss school one day. And, yet, in a similar case, J.C. v. Beverly Hills School District, the nature of the attacks were similar, yet the victim only reported not wanting to go to school for an hour or so. In J.C., the First Amendment barred discipline because there was not enough of a "disruption." So, are we to accept that these cases turn on how the victim reacts or if a judge remembers that Tinker did not only refer to a disciplinary disruption caused by a protest?

How would you have come out on the nexus question? On the "disruption" question? Should we even be using Tinker/Fraser at all?


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.