Censorship is bullying

Tuesday, March 31, 2009

This article is part of an online symposium on the First Amendment Center Online titled Cyberbullying & Public Schools.

Let’s be clear up front: Bullying is always wrong. Terrorizing a less-powerful person — whether it is in school, at home or in the workplace — is reprehensible, and when it places the victim in fear of physical danger, it is also illegal. And rightly so.

That does not change when the bullying is carried out by means of instant messaging or Web site postings rather than a confrontation in the locker room. But because of a few high-profile instances in which young people have hounded and humiliated others with electronic messages — sometimes with tragic consequences — too many legislatures, school boards and courts are hastily making policy in the grip of panic that every young person with a Facebook page is a predator waiting to strike. As a consequence, they are ceding dangerously open-ended authority to school administrators — the same people whose inability to make rational disciplinary judgments resulted in the “zero-tolerance” suspensions of innocent students for bringing cake-cutters or Midol to school.

While bullying undeniably can and does ruin lives, misfired school discipline has its own casualties. When a student is branded “disruptive” or consigned to “alternative school,” that young person’s future may be inalterably limited. And beyond the terrible impact on individual students who are stigmatized as lawbreakers, freedom of speech is itself threatened by the expansionist view that schools can punish entirely off-campus conduct based on the way people react to it at school. If that view is allowed to prevail, then America literally will have a constitutional underclass of students — many thousands of whom are legally adults — who never, even in their own homes, enjoy the full protection of the First Amendment.

Online speech and the ‘special characteristics’ of school
Forty years ago, the Supreme Court recognized in its landmark ruling, Tinker v. Des Moines Independent Community School Dist. (1969), that while students are entitled to the protection of the First Amendment, their rights are not necessarily coextensive with those of adults. Rather, their free-speech rights are to be viewed “in light of the special characteristics of the school environment.” While Tinker requires an exceptional showing to justify censorship — speech is punishable if it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others” — the Court has since lowered the bar in discrete settings. Schools have a freer hand in restraining or punishing speech where: (1) the speaker uses “lewd” language in front of a captive audience of students attending a mandatory school assembly (Bethel School District No. 403 v. Fraser (1986)); (2) the speech may reasonably be interpreted as the official voice of the school because it is expressed in a curricular publication (Hazelwood School District v. Kuhlmeier (1988)), or (3) the speaker promotes the use of illegal drugs during a school-sanctioned gathering (Morse v. Frederick (2007)).

Common to all of these cases is the principle that keeping order during school hours at school functions is a vital state interest that may, in some instances, override the rights of students to express themselves. But none of these cases can be read as issuing school authorities a free-floating license to police students’ expressive conduct around the clock. To the contrary, the Court emphasized as recently as Morse that, while it was permissible in Fraser to discipline a speaker for using foul language during a school assembly, had the student “delivered the same speech in a public forum outside the school context, it would have been protected.” Indeed, school disciplinary codes that are unmoored to school facilities or events are routinely struck down as unconstitutionally overbroad. (See, e.g., Killion v. Franklin Regional School District, 136 F. Supp. 2d 446 (W.D. Pa. 2001); Flaherty v. Keystone Oaks School District, 247 F. Supp. 2d 698 (W.D. Pa. 2003).

The litany of abuses since the Supreme Court’s 1988 decision in Hazelwood teaches us that, given unbridled discretion, many school officials will wield their authority to protect their own images, not to protect vulnerable bullying targets. Hazelwood has been invoked to suppress truthful disclosures about inadequate libraries, unsanitary bathrooms and dangerous gang activity, and to retaliate against student whistleblowers and their teachers. And the impact of school censorship falls disproportionately on gay and lesbian students, who routinely are told that their very existence is too “offensive” even be acknowledged in student publications. If school officials are empowered to penalize purely off-campus speech created on personal time, then young people never, even in their own homes, can write confidently about controversial topics that concern them.

School authority belongs inside the schoolhouse gate
Of course, if students act disruptively on campus during the school day — if they waste class time text-messaging each other or misuse school computers to access recreational Web sites — they can be disciplined without relation to the content of their expression. Schools have always had this authority, and so the rationale for new cyberbullying penalties must necessarily be to punish conduct that does not involve acting disruptively on school property or under school supervision. But if school authority is not bounded by a geographic or sponsorship connection with school, then it is effectively boundless.

Schools have most notably pushed the boundaries of their jurisdiction when seeking to punish online speech not because it bullies students, but because it disrespects school administrators. Perhaps understandably, when that speech is seen as portending violence (no matter how remotely), courts hesitate to second-guess school judgments. For instance, in Wisniewski v. Board of Education, 494 F.3d 34 (2d Cir. 2007), a federal appeals court permitted discipline of a student for his use of an Instant Messaging icon designed to look like a cartoon of his teacher being shot. The student did not use school computers to create or send his message, and there was no evidence that he showed the icon to anyone while on school grounds or that he intended for his classmates to do so. Nevertheless, the court found that it was reasonably foreseeable that the caricature would come to the attention of the teacher and of school officials, and that was enough to justify punishment.

But when no violence is threatened, the better view is that off-campus speech is, like any other off-campus conduct, a private matter to be dealt with by parents and through the civil and criminal-justice systems. Thus, in Layshock v. Hermitage School District, 496 F. Supp. 2d 587 (W.D. Pa. 2007), the court properly concluded that a Pennsylvania high school principal ridiculed by a bogus MySpace profile could not use school authority to settle his grudge with the student creator, but rather, should be left to pursue the defamation claim he had filed.

Cyberbullying regulation is corrosive to the extent that it implies (as the court did in Wisniewski) that schools have jurisdiction over students’ off-campus conduct based solely on the way others react to that conduct on-campus. While government can enforce reasonable, nondiscriminatory speech regulations on public property, government has never been allowed to restrict the content of speech because it affects public property. We would not countenance a principal’s use of state power to punish Justin Layshock if he had wrecked the principal’s car at the grocery store or impregnated the principal’s daughter, and we cannot place speech in a uniquely disfavored category.

The Internet is (not so much) different
Behind recent moves to empower school administrators to punish online speech is the misconception that the Internet fundamentally changes the nature of speech, so that conduct never before considered punishable (e.g., gossiping off campus about classmates) becomes sanctionable when students use the tools of digital communication. This analysis is unsound in two respects.

First, the First Amendment is not volumetric. The line between protected and unprotected speech has never depended on the size of the audience or the ease of transmittal, nor should it. Courts did not discard First Amendment orthodoxy when carbon paper gave way to copiers, and a homeowner has the same right to post a yard sign whether his house fronts a suburban cul-de-sac or Interstate 95. As Tinker counsels, school officials’ concern is whether the speech causes disruption at school, and students have always had ample ability to reach enough people to disrupt class. That online speech may be accessible halfway around the world is of no concern in a Tinker analysis, since the viewer in Madagascar is in no position to disturb school in Minnesota.

Second, the theoretical global audience for online speech is just that — theoretical. The student newspaper reaches the entire school community in a day, and a sign on a school bulletin board will be seen by hundreds of passersby. Conversely, in the Wisniewski case, all of 15 people received the student’s instant message depicting the teacher being shot. Wisniewski, 494 F.3d at 36. And in another case involving cyberspeech mocking a school employee, J.S. v. Blue Mountain School District, 2008 WL 4279517 (M.D. Pa. Sept. 11, 2008), the student’s MySpace page spoofing her principal was (after briefly being available to any MySpace user) placed on an invitation-only basis so that it was viewable only by 22 approved friends. There is no factual evidence that electronic communications are such a radically more effective way of reaching a student audience that established First Amendment doctrine must be abandoned (and indeed, since many schools block access to MySpace, YouTube and other popular user-driven Web sites, the Web may be a uniquely ineffective means of disrupting school).

The notion that communications can be made punishable simply because they use electronic conduits should be ringing familiar alarm bells for free-speech advocates with long memories. Three decades ago in FCC v. Pacifica Foundation (1978) (the “seven dirty words” case), the Supreme Court determined that over-the-air broadcasting is so uniquely intrusive and accessible to youth that the government may restrict mere “indecency” rather than legal obscenity. Cyberbullying regulation inescapably points to a similar two-tiered status, with online speech enjoying less protection than the printed word.

We are all disturbed when bullying does lasting damage to young people, whether by a punch in the mouth or by a blast e-mail. But at least some of what we have come to call cyberbullying is really the venting of student frustration with school policies and personnel. Schools should embrace and nurture campus newspapers, Web sites and broadcasts as forums for the candid discussion of student views — however unpleasant to hear — with the benefit of coaching from a trained journalism instructor. Schools must appreciate that censorship of the student media does not extinguish dissent; it merely relocates it.

The dictionary defines bullying as: “to hurt, frighten, or tyrannize over those who are smaller or weaker.” When a gay student is told that his existence is so repulsive to members of the community that the principal will not defend his right to speak, but instead will cast his lot with the bigots, that student suffers a blow that is as palpable as a playground beating. When a teacher is threatened with firing for refusing to stifle her students’ lawful criticism of the school, that teacher is “hurt, frightened and tyrannized” far more than if she is made the target of a childish student prank. We must expand the cyberbullying dialogue so that America’s education leaders — people we trust to exercise better judgment than a 15-year-old — understand that censorship is bullying, and that bullies have no business running our schools.

Frank D. LoMonte is a former daily newspaper reporter and columnist who, after clerking with the 11th U.S. Circuit U.S. Court of Appeals, practiced law with Sutherland Asbill & Brennan LLP. Since January 2008 he has been executive director of the Student Press Law Center (www.splc.org), a nonprofit advocacy group based in Arlington, Va. that supports the rights of college and high school students to publish in all media free from unlawful censorship.