COMMENTARY | COLUMNISTS | KATHRYN FEHRMAN

Is it worth 'sounding the First Amendment bugle' for cyberbullies?

Schools may discipline a child when the child speaks at home, outside of school hours, without the use of any school resources. This season, four petitioners have asked the U.S. Supreme Court to guide schools and students when it comes to kids’ speech on the Internet. Where does a school’s reach end? The court should accept these cases; schools need to know.

The free exchange of ideas is crucial to a democratic society. And as Justice Abe Fortas said in the seminal case of Tinker, “That they are educating the young for citizenship is reason for scrupulous protection of constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”

On the other hand, we also depend upon our schools to provide students with a good education, free of disruption. When students bully, the upshot can be deadly. Parents are often ill-equipped to deal with malicious Internet chatter. Schools should not have to risk liability when they act to prevent bullying and its consequences.

Four cases are now poised for possible U.S. Supreme Court review, claiming to address these competing interests. All four involve schools disciplining students for Internet speech created at home on personal equipment.

Here’s the history: In 1969, Fortas made it clear in the case of Tinker that students wearing black armbands to protest the Vietnam War were protected by the First Amendment. Their on-campus, “silent, nonverbal speech” was not disruptive, even though it caused a stir. Our democracy’s need to entertain even uncomfortable dialogue in order to maintain our freedom outweighed whatever difficulties the school may have experienced in dealing with peaceful protest.

But in 2007, Chief Justice John Roberts wrote about young Joseph Frederick’s “Bong Hits 4 Jesus” banner. Frederick himself admitted that his speech was “nonsense”; he just wanted to “get on television.” Frederick held his banner across from school during a school outing. Younger students could see his message, which at worst may be interpreted to celebrate illegal drugs. The Supreme Court held the school was correct to discipline him, although Justices Samuel Alito and Anthony Kennedy said in concurrence that had the speech been political (for example speech arguing for the legalization of medical marijuana), the decision may well have been different.

Sadly, the four current cases show high school students in an even less flattering light. Avery Doninger posted blog messages calling her school administrators “douche bags,” prodded students and parents to complain to the school about a canceled concert, and derogated the school in her talks with media. In the other cases, J.S. made “fun of her high school principal” on her MySpace page. Justin Layshock created a phony MySpace profile of his school principal, calling the principal “fag,” “whore,” “drug addict” and more. On Kara Kowalski’s MySpace, “Students Against Sluts’ Herpes,” invitees posted nasty comments about a fellow student, including a picture of the student with an arrow pointing to her pelvis, and a caption: “Enter at your own risk.”

This is typical, painful bullying. After an apparently less-than-nurturing disciplinary process, the school suspended Kowalski and threw her off the cheerleading squad. Not surprisingly, she was also dethroned as charm queen.

Yes, the Internet is here to stay, creating havoc for schools to deal with. Thus, the U.S. Supreme Court should take these cases and guide schools and students about off-campus Internet speech. When they do, they should consider five important points.

Speech created off campus, at home, on a public forum

Schools act in loco parentis (in the place of parents) when students are in school. But may a school act in loco parentis in a child’s home, when a child is acting as child and not as student? When might a school have the power to reach into a child’s home to administer discipline? May a school reach into a public forum, like courthouse steps, public parks or the Internet to discipline students?

Speech directed at students or the school

Kowalski petitioners say her off-campus speech was “not directed at the school.” Not so. If Kowalski's Web page were “Kids Against …” then her speech might have been unconnected to school. But her choice of title implies school connection. The Supreme Court should determine whether her “student” website undermines her claim that the speech is not school-related.

Who is the speaker?

In Kowalski, the speech was not hers. Kowalski opened the forum, but she did not derogate the student. Other students posted nasty comments and photos. Is the host (like Google or Facebook) to be liable for the comments of the posters?

Speech that bullies and harasses and has no political purpose

Unlike Tinker’s political speech, the speech currently pending is not crucial to our democratic process. Kowalski's speech is not even nonsense like Frederick’s. Kowalski allowed brutal bullying on her website.

“The nation’s future depends upon … wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, (rather) than through any kind of authoritative selection.” — Justice Abe Fortas. Unfortunately for the students currently before the court, harassing fellow students and school personnel does not rise to the level of "discovering truth." Schools must be able to act in such cases without fear of lawsuits. As Roberts said in Frederick, some speech “hardly justifies sounding the First Amendment bugle.”

Discipline: Don’t punish to ensure the least infringement possible upon constitutional rights

When students mess up, schools are provided with great opportunities to teach. Discipline comes from the same root as "disciple." It’s about teaching and learning, following wisdom. When schools reach beyond campus to teach students, the responsibility of teaching does not wane. The further the reach, the greater the responsibility and respect for the duty to teach. This requires schools to discipline students in a balanced manner without infringing more than necessary upon fundamental constitutional rights like free speech. And it requires schools to respect another competing constitutional interest: the right of parents to the care and upbringing of their own children.

So discipline may well be appropriate. However, if discipline results regardless of where the speech originated, it must be with respect and deference to parents, and to the constitutional principles that are challenged when the at-home speech of a child becomes the object of state interest. Shutting kids down will not engender respect or honor, nor will it serve the purposes of democracy. Teaching them thoughtfully and carefully will.

Fehrman is a professor of legal skills at California Western School of Law.

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