1. Walking the Regulatory Tightrope:
Balancing Bullies’ Free Speech Rights
Against the Rights of Victims
Lisa Smith-Butler
October 2012

2. What’s the issue?
Is it bullying or free speech?
• Words Hurt • Adults too?

3. First Amendment

4. The Standard
• Snyder v. Phelps, 131 S.Ct. 1207, 1215 (2011)
articulates the standard as :
• “Speech is powerful. It can stir people to action, move
them to tears of both joy and sorrow, and –as it did
here—inflict great pain. On the facts before us, we
cannot react to that pain by punishing the speaker. As
a Nation, we have chosen a different course—to
protect hurtful speech on public issues to ensure that
we do not stifle public debate. That choice requires
that we shield Westboro ….”

5. The Problem
• Jared & Delilah, two high school kids
• James Island County High
• Soul mates today
• Break up tomorrow
• Facebook hating
• Facebook libel?
• Classmates share
• Cyberbullying?
• Harassment?

6. Facebook Hating & Youtube Bullying:
The Reality of It

7. How Should Schools Handle?
Questions, Questions
• Can the school principal punish the student for off
campus cyber-speech that has an impact on campus?
• If not, does the principal tell parents that their options
are limited to suing the offending student and his/her
parents for libel?
• What if the behavior constitutes harassment as defined
by the Department of Education, Office of Civil Rights?
Will the school lose its funding if it does not punish?
• Will the school be subjected to liability by states for
failing to adequately address cyber-bullying?
• What is a principal to do?

8. An Attorney’s Advice
Student Speech & the Court: A Legal Perspective
• U. S. Supreme Court decisions on K-12 student
speech at schools are often referred to as the
Morse Quartet.
• The Morse Quartet includes:
– Tinker v. Des Moines (1969)
– Bethel Sch. Dist. v. Fraser (1986)
– Hazelwood Sch. Dist. v. Kuhlmeier (1988)
– Morse v. Frederick (2007)

9. The Tinker Analysis
• “A student’s rights,…do not embrace merely the
classroom hours. When he is in the cafeteria, …
he may express his opinions, even on
controversial subjects like the conflict in Vietnam,
if he does so without ‘materially and
substantially interfer(ing) with the requirements
of appropriate discipline in the operation of the
school’ and without colliding with the rights of
others….”
– Tinker v. Des Moines, 393 U.S. 507, 512-513 (1969.)

10. Limitations on Tinker
• The Court explained the limitations on Tinker
as “…conduct by the student, in class or out of
it, which for any reason—whether it stems
from time, place, or type of behavior—
materially disrupts classwork or involves
substantial disorder or invasion of the rights
of others is, …not immunized by the
constitutional guarantee of freedom of
speech.”
– Tinker 393 U.S. at 512-513.

11. Circuits: Split or Reconcilable?
• Second Circuit Court of Appeals
– Doninger & Wisniewski
• Third Circuit Court of Appeals
– Layshock & Snyder
• Fourth Circuit Court of Appeals
– Kowalaski
• Eighth Circuit Court of Appeals
– D.J.M. v. Hannibal

12. More Confusion:
Cases from United States District Courts
• T.V. v. Smith-Green Cmty
• Evans v. Bayer
• J.C. v. Beverly Hills Unified Sch. Dist.
• Mardis v. Hannibal Public Sch. Dist.
• Requa v. Kent Sch. Dist.
• Flaherty v. Keystone Oaks Sch. Dist.
• Mahaffey v. Aldrich
• Coy v. North Canton

13. Supreme Court of Pennsylvania
• J.S. v. Bethlehem Area Sch. Dist.

14. Department of Education: Office of
Civil Rights
• DOE enforces the Civil Rights statute that imposes
liability for peer harassment that is based on
race, color, national origin, sex or disability.
• In October 2011, the OCR of the DOE issued a
Dear Colleague Letter regarding cyberbullying
and harassment.
• According to the letter, behavior that schools
labeled cyberbullying or bullying might also
constitute harassment under the civil rights
statute.

15. Response of National School Boards
Association
• How can schools avoid the imposition of
liability by the DOE OCR for failing to curb
student behavior that constitutes harassment
yet is also protected by First Amendment?

16. The Question Becomes…
• How can a school deal with Snyder’s hate
speech without running afoul of the
Department of Education’s Office of Civil
Rights laws?

17. More to the Mix
• Besides dealing with the Department of
Education and the First Amendment, many
school principals are dealing with the
requirement, imposed by their state
legislatures, that they provide safe schools
and deal with bullying.
• The National School Boards Association
provides a list of state statutes concerned with
anti-bullying legislation.

18. A Fresh Look at Tinker & a Revised
Analysis
• Is the speech lewd, involving a captive
audience, that occurs on campus? If so, apply
Fraser.
• If not, is it speech that carries the imprimatur
of the school and involves pedagogy? If so,
apply Hazelwood.
• If not, is the speech off campus speech at a
school sponsored event that appears to
promote illegal drug use? If so, apply Morse.

19. • If neither Fraser, Hazelwood or Morse is
applicable, apply Tinker’s substantial
disruption test.
• If none of the above apply, what is next?

20. Suggested Additional Analysis
• Use Tinker’s “collides with the rights of
others” prong if the off campus speech is
directed at school personnel or other students
AND can be described as speech that is:
– Bullying
– Harassing
– Libelous
– Threatening

21. Conclusion
• Ultimate goal:
– Provide safe schools
– That operate without chaos and disruption
– While preserving the political speech of students
– In an environment that neither permits, condones
or ignores student bullying or harassment.