A Question of Freedom Adapted from

Free Speech v. Prevention of Cyber-Bullying Is it constitutional for schools to censor online speech or is this a violation of free speech guaranteed to Americans by the First Amendment right? What do you think?

Free Speech v. Prevention of Cyber-Bullying In 1997 the U.S. Supreme Court issued the first ruling on Internet speech. The court’s ruling in the case of Reno v. ACLU began the process of clarifying how Internet speech should be treated in the future.

Schools often consider the following when attempting to regulate student speech on the Internet: If the content was created as part of a school activity, then the speech is considered to be ‘school sponsored,’ and the school has a wider scope in regulating it. If the content was created by a student using a school computer during their free time, then the speech in question is entitled to protection under the First Amendment, as long as it does not (a) cause a material or substantial disruption to the school community, or (b) infringe on the rights of others. (Although the school could argue for regulation because a school computer was used.)

Schools often consider the following when attempting to regulate student speech on the Internet: If the speech takes place on a private Web site, schools must exercise caution before attempting to regulate it. True, educators are vitally concerned with keeping their community safe and if a student produces speech that is deemed to be a "true threat" or an invasion of the rights of others, schools have a responsibility to act. In spite of this, judges have been more likely to defend the free expressions of students in the majority of lawsuits if they have determined that the speech did not constitute a ‘true threat.’

Survey QUESTION Yes No Not Sure Do you think there should be legal consequences for students who engage in cyber-bullying?

Survey QUESTION Yes No Not Sure Do you think there should be a federal cyber-bullying law that sets the standard for all states?

Survey QUESTION Yes No Not Sure Do you think that schools should have the right to intervene in the off-campus behavior or speech of students?

Survey QUESTION Yes No Not Sure Is it constitutional for school officials to censor student online speech, when it threatens the welfare or safety of the school, and when the speech prevents other students from accessing education opportunities?

Survey QUESTION Yes No Not Sure Should someone who threatens you with violence online and then claims this was a joke be protected by the First Amendment from being expelled from school?

Case Study 1: Is it Fair? In 2005, a girl at Musselman High School (WV) created a webpage at home. It suggested that a classmate had a sexually transmitted disease and invited others to comment. The web page creator was the school’s reigning “Queen of Charm.” She was suspended for 5 days and kicked off the cheerleading squad. Officials concluded Kowalski had created a "hate website" in violation of the school's anti-bullying policy. She filed a federal lawsuit, saying her rights were violated.

What would you decide? Should the actions of the accused cheerleader be classified as free speech and protected under the First Amendment since she did not create the web page at school? YES_____ NO_____   Her lawsuit claimed the suspension left her “isolated and depressed.” Does that get your sympathy? If it were up to you, as court judge, how would you rule in this case?   Share your reasons!

What did the Court decide? A West Virginia court upheld the suspension. So did a Federal Court of Appeals in Richmond, VA, ruling that the web page was created primarily for her classmates, so the school had the right to discipline her for disrupting the learning environment. The case went all the way to the U.S. Supreme Court. The Supreme Court rejected the “Queen of Charm’s” appeal, ruling that the suspension was legal. Read more: http://www.huffingtonpost.com/2011/07/27/court-backs-wv-school-in-_n_911510.html

Case Study 2: Prank or Serious Threat? In 2005, a 15-year-old, artistic student from California created a Web site to promote his entertainment career in music and film. Some students at a Los Angeles High School responded by posting graphically violent threats and mocking comments on his site. At the suggestion of the Los Angeles Police, the targeted student was withdrawn from school by his family and moved to another area of California. The student and his family sued six of his fellow students and their parents for hate crimes, defamation, and intentional infliction of emotional distress. One of the defendants claimed that his comment was a "joke" and should not be interpreted as an actual threat. His attorney told the San Francisco Chronicle that the defendant and his parents would appeal to the California Supreme Court. No reasonable person could have interpreted the message as a serious threat, he said, and the ruling "undermines the First Amendment protection for unpopular speech” (qtd. In Egelko). Reference: Egelko, Bob. “Threatening posts not protected free speech.” San Francisco Chronicle. 17 March 2010. Web. 21 Mar. 2011. The defendants filed a motion to dismiss with a California appeals court.

What would you decide? Should the actions of the accused cyber-bullies be classified as free speech and protected under the First Amendment? YES_____ NO_____   Do you think that a joke, if interpreted as a threat, should result in disciplinary action? If it were up to you, as an appeals court judge, would the law suit be allowed to proceed?   Share your reasons!

What did the Court decide? Resolution: A California appeals court upheld the lower court’s opinion that the hate crimes and defamation suit could continue. The majority ruling called the posted messages "unequivocal" and "serious expression[s] of intent to inflict bodily harm." One of the judges disagreed with the ruling, saying that the comments - in which students competed to deliver the most outrageous insults – could not be reasonably interpreted as a serious threat. Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/03/16/BANA1CGRR9.DTL#ixzz1GyMAh47O