Even though legislation is aimed towards alleviating the problem, legislators run into a large grey area. In years past, the Supreme Court of the United States has dealt with issues that can be cross applied to cyber-bullying legislation. Cases like Tinker v. Des Moines, Bethel School District v. Fraser, Hazelwood School District v. Kuhlmeier, and Morse v. Frederick, have set precedents for how far schools can extend their power into the lives of students and their free speech. Each case has different factors and variables, but schools are only able to restrict speech made by students when they are on school grounds or attending/participating in “school sponsored events” (King, 2010).
The grey area for the courts and school districts is determining whether or not the online world is fair game to restrict students’ speech, especially when it causes disruption in the classroom. According to the Vanderbilt Law Review, “lacking clear guidance from the Supreme Court, lower federal courts and state courts have disagreed whether online speech created off-campus is protected” (King, 2010). If the Supreme Court were to rule that the extension is an overreach of the school district, many of the state laws would be in violation of the Constitution. Such unconstitutionality would decrease the effectiveness of the policies in place.
Of the Supreme Court cases, Tinker v. Des Moines is the most frequently examined ruling when dealing with cyber bullying. The ruling has given schools the constitutional right to prohibit speech if it is “incendiary, disruptive to the enactment of education, or in retention of the potential to incite unrest” (King, 2010). What this case fails to do is solidify what is meant by ‘disruptive’ and where the act has to take place for the schools to legally be able to step in. Current bills define the type of harassment vaguely, leaving a lot of room for interpretation. School districts are left with unanswered questions when it comes to enforcing the policies. Furthermore, legislators face the challenge of whether or not a ‘true’ threat was made to the victim of cyber bullying. In cases like Megan Meier, a fake account told her “the world would be better off without you” (King, 2010).
After reviewing the Meier case, another incident of a teen that took her own life after being bullied online, some argued that the comment was not a true threat since it was not made directly to Meier; instead, it was sent through social media. Even when a court declares that a ‘true threat’ has been made, the Tinker precedent still falls short. According to the Vanderbilt Law Review, “several legal commentators contend that the Tinker benchmark is unreasonably high—too high to capture many cases of cyber bullying” (King, 2010). These complications pose serious questions for further legislative processes that aim towards criminalizing and reprimanding the bullies of the online world.
Some schools fear that further...