Regulating Student Cyberspeech

Abstract

In this symposium contribution, the author proposes a framework for applying the First Amendment to the most common forms of student cyberspeech disputes that arise in public schools. The article describes how these disputes are broadly falling into two different categories and provides an overview of how lower courts are resolving them. It describes how many courts are improperly importing standards developed for dealing with "cyberdissing" disputes (those where school officials have been subjected to online criticism or attacks) to decide cases involving "cyberbullying" (those involving alleged online bullying of one student by another). The author then analyzes what standards should be applied to these various disputes, both in terms of the overall First Amendment doctrinal framework that should govern them, as well as how those standards should be adjusted depending upon the particular type of dispute at issue. It is the author's hope that his proposals will aid courts, when deciding these disputes, to properly balance the functional interests of schools in ensuring an optimal student learning environment against the students' free speech interests at stake in these cases.

Keywords: student speech, First Amendment, schools, cyberbullying, cyberspeech, cyberdissing, Tinker v. Des Moines Indep. Cmty. Sch. Dist., off-campus conduct