Student ‘cyberbully’ wins free speech case
The Bully of the Neighborhood
You have to feel for school administrators these days.
The Internet has made it infinitely harder for them to keep the peace within the student population, and there’s no clear road map as to how proactive they can be in policing student speech without tripping over the First Amendment.
The problem of just how carefully school officials must tread was illustrated in a series of landmark decisions issued recently in a federal lawsuit in California. The case pitted the Beverly Hills Unified School District against a high school student who was suspended after she posted a video on YouTube that mercilessly ridiculed a classmate.
In one of the first cases addressing student “cyberbullying,” U.S. District Judge Stephen Wilson rejected a “geographic” approach in limiting the authority of school officials, instead concluding that a school’s ability to regulate such off-campus speech is measured by the threat that it poses in disrupting school activities.
Further, in addressing due process concerns, Judge Wilson tells school officials that they may well need to reformulate their student conduct policies in order to make it clear to students under what circumstances off-campus speech may result in discipline.
YouTube slam
A group of kids monkeying around, that’s how this story starts.
J.C. was a student at Beverly Vista High School. After school on the afternoon of Tuesday, May 27, 2008, J.C. and several friends gathered at a local restaurant. Goofing around, J.C. recorded on a personal device a four-minute and thirty-six second video of her friends talking about a classmate of theirs, C.C.
On the video, the kids say that C.C. is “spoiled,” a “slut” and other less flattering things.
Naturally, J.C. thinks the video is the most hilarious thing ever, so she goes home and posts it on YouTube. That night, the video received about 90 “hits.”
Of course, C.C. finds out about the video and, being 13 years old, is devastated. C.C. and her mom go to school the next day and talk to a counselor. This launches an investigation by school officials, who order J.C. to delete the video from YouTube and her home computer.
This probably should have been the end of the matter, but unable to leave well enough alone school administrators contact the district’s attorneys, who gave the go ahead to suspend J.C. for two days.
Bad move.
Quicker than you can say “Section 1983,” J.C. is in federal court suing the school district and individual school officials for violating her First Amendment rights.
Freedom of speech
In her lawsuit, J.C. argued that the school district violated her free speech rights by attempting to regulate her off-campus speech.
Given that the legal landscape concerning student cyberbullying is largely uncharted, J.C. proposed that the First Amendment places a “geographic” limitation on what public school officials can do, limiting their authority to regulating conduct that occurs on campus.
But Judge Wilson rejected the notion that school administrators are powerless in the face of off-campus Internet speech.
In a ruling issued last month, he decided that these cases are governed by the U.S. Supreme Court’s decision in Tinker v. DesMoines Independent Community School District.
In the 1969 case, the Court ruled that a school may regulate a student’s speech or expression if such speech causes or is reasonably likely to cause a “material and substantial” disruption to school activities or to the work of the school.
Distilling the caselaw since Tinker, Judge Wilson recognized these parameters:
First, the majority of courts will apply Tinker where speech originating off campus is brought to school or to the attention of school authorities, whether by the author himself or some other means. The end result established by these cases is that any speech, regardless of its geographic origin, which causes or is foreseeably likely to cause a substantial disruption of school activities can be regulated by the school. Second, some courts will apply the Supreme Court’s student speech precedents, including Tinker, only where there is a sufficient nexus between the off-campus speech and the school. It is unclear, however, when such a nexus exists. The Second Circuit has held that a sufficient nexus exists where it is “reasonably foreseeable” that the speech would reach campus. The mere fact that the speech was brought on campus may or may not be sufficient. Third, in unique cases where the speaker took specific efforts to keep the speech off campus, or clearly did not intend the speech to reach campus and publicized it in such a manner that it was unlikely to do so, the student speech precedents likely should not apply. In these latter scenarios, school officials have no authority, beyond the general principles governing speech in a public arena, to regulate such speech.
In this case, Judge Wilson concluded that school officials violated the First Amendment because “no reasonable jury could conclude that J.C.’s YouTube video caused a substantial disruption to school activities, or that there was a reasonably foreseeable risk of substantial disruption as a result of the YouTube video.”
Specifically, the court found that any actual disruption to school activities was minimal and largely the result of the school’s response upon learning of the existence of the YouTube video.
What about poor C.C.?
First, the judge found that there was no reason for school officials to believe that C.C.’s safety was in jeopardy or that any student would try to harm C.C. as a result of the video.
While he recognized that C.C.’s her feelings were hurt and that she understandably did not want to go to class after being embarrassed, the judge concluded that such concerns alone do not justify school discipline.
“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,” Judge Wilson wrote. “However, to allow the School to cast this wide a net and suspend a student simply because another student takes offense to their speech, without any evidence that such speech caused a substantial disruption of the school’s activities, runs afoul of Tinker.”
So the school district is liable under §1983 for violating J.C.’s free speech, and the judge has directed that she submit a proposed judgment for his consideration.
As for the individual school administrators named in the suit, the court found they were immune under §1983 because the law was not clearly established at the time of their transgressions. (J.C. v. Beverly Hills)
Review those student conduct policies
Last week, Judge Wilson issued a second decision in the case, concluding that the school district also violated J.C.’s due process rights.
The judge found that the school’s policies were unconstitutionally vague because they failed to place students on notice that off-campus speech can be regulated.
“[T]he Court finds that the School’s disciplinary policies are unconstitutionally vague because such policies appear, on their face, to limit the School’s authority to discipline students for activities occurring at school, while the students are on the way to or from school, or at a school-sponsored event,” the judge wrote. “Although the School can, within the bounds of the Constitution, regulate off-campus speech that causes a material and substantial disruption to school activities under Tinker, it must put students on notice of such authority so that they can modify their conduct in conformity with the school rules.”
This ruling should send school lawyers scurrying to review their client’s student policies. And it probably would be a good idea to discuss with school officials in advance just how proactive they intend to be in policing student cyberbullies.
— Pat Murphy
patrick.murphy@lawyersusaonline.com
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