Over 200 years ago, our founding fathers adopted the Bill of Rights as part of our Constitution. The First Amendment is arguably the most well known liberty we have in this country as it guarantees “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." As we fast forward 220 years, freedom of speech is still a hot button issue that is consistently protected as one of our fundamental rights. With that being said, not every word we speak or write falls under the protection of the First Amendment in large part due to technology; more specifically, the internet and the new phenomenon of cyber bullying.
Cyber bullying, or Cyber harassment as it’s often referred to, is defined in the Idaho Statutes §18-917a as:
“Any intentional gesture, or any intentional written, verbal or physical act or threat that will harm a student, damage their property, place a student in reasonable fear of harm or damage to his/her property. Acts of harassment, intimidation or bullying may be committed in person or through the phone or computer.”
While the definition of this new age school yard bully is clear, the connection between what constitutes free speech is not. Since the U.S. Supreme Court has yet to address a student’s right to free speech in the framework of cyber bullying, the lower courts, attorneys, schools, students, and parents are forced to view relevant case law in determining how to proceed when the issue of cyber bullying and free speech arises.
With regard to a student’s right to free speech, the case precedent was set in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). Here, a group of students wore black arm bands in protest of the Vietnam War. School officials warned the students that they would be suspended if they did not remove the arm bands. When the students refused, they were suspended as previously warned. The case reached the Supreme Court and their decision was in favor of the students, but they also issued a caveat with their ruling. In sum, the high court stated that students and teachers do not relinquish their constitutional rights when they enter the school grounds, but they recognize the need for school officials to “control conduct” in the name of safety. With that being said, the Court concluded that schools can limit the free speech of students if the speech at issue would cause a “material and substantial interference with schoolwork or discipline, or an invasion of the rights of others.” Since this decision, lower courts have continued to apply the “Tinker Standard” when ruling on current cases involving cyber bullying. One such case is J.S. v. Bethlehem Area School District, 569 Pa. 638, 807 A.2d 847 (2002). Here, a student was expelled for creating a graphic web page...