Cyberbullying Laws vs. the First Amendment: Legal Questions

By Greg Howard – March 25, 2013

Can cyberbullying laws stand up to First Amendment court challenges? Do school leaders have the authority to police off-campus cyberbullying?According to a recent report in the Tampa Bay Times, Florida legislators are seeking to give school leaders the authority to police incidents of cyberbullying that take place off campus. Not everyone is comfortable with the amendments being pushed by legislators, however.

Despite dramatic incidents of cyberbullying that have shocked Floridians in recent months – such as the suicide of a cyberbullied Tampa Bay teenager – some are simply not comfortable with the idea of educators pursuing off-campus abuse.

Some people are questioning the legal authority that school administrators have to punish students for bullying incidents that don’t take place on school property. Others question the legality of off-campus bully policing from the perspective of free speech.

These concerns raise an interesting question. Even if Florida legislators amended state law so educators could punish students for off-campus cyberbullying incidents, would such a law stand up to a First Amendment challenge?

Looking at past legal decisions, the answer to this question is unclear. One critic quoted in the Tampa Bay Times article noted that no Supreme Court decision has expressly given school administrators the authority to go after students for bad behavior off campus.

On the other hand, the Supreme Court has given educators the authority to restrict student speech in certain scenarios. The court’s decision in the 2007 Morse v. Frederick case is an example of this. If educators can restrict student speech at off-campus events, as justices said they could in Morse v. Frederick, could they also pursue students for inappropriate speech in an online forum?

For now, it seems that Floridians can agree on just one thing: something must be done to stop cyberbullying in schools. Unfortunately, it could take years before legislators and the courts have clarified the legal authority of school leaders to police cyberbullying.

While school leaders in Florida and other states wait on these decisions, we urge them to take a look at anonymous bully reporting. Anonymous reporting programs can help troubled students come forward and report bullying and cyberbullying without fear of further abuse from their classmates. Even if educators don’t have the legal authority to punish students for off-campus behavior, they can still address the needs of those being targeted for abuse.

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