Free Speech 6: Cyberbullying

In 2019, a U.S. District Court in the Eighth Circuit ruled on a case in which a student had been suspended from school for violating the school district’s cyberbullying policy. See A.S. v. Lincoln Cty. R-III Sch. Dist., 429 F. Supp. 3d 659, 669-70 (E.D. Mo. 2019).

In that case, a high school student, A.S., a student who had been bullying C.S., a classmate with depression, created a social media post containing a doctored photograph of C.S., lying in a casket with text referring to C.S.’s funeral and visitation at a funeral home. A.S. shared this with a group of other students and encouraged them to post it on their own social media pages - which they did. The next Monday during class, C.S., upset about another student’s comments about his “death,” put the student in a chokehold. After investigating the incident, the school principal suspended A.S. for ten days for violating the school district's cyberbullying policy. A.S. appealed his suspension.

In its decision, the Court noted that although students don't “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” (citing Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969)), the First Amendment does not protect all speech in the school environment, and school officials may lawfully punish some forms of unprotected student speech (citing S.J.W. ex rel. Wilson v. Lee's Summit R-7 Sch. Dist., 696 F.3d 771, 776 (8th Cir. 2012) (citing Tinker, 393 U.S. at 513, stating: “conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts class, involves substantial disorder, or invades the rights of others is . . . “not immunized by the constitutional guarantee of freedom of speech.”).

The Court further noted that Tinker applies to off-campus student speech where it is "reasonably foreseeable that the speech will reach the school community and cause a substantial disruption to the educational setting” (citing S.J.W., 696 F.3d at 777 (citing D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. # 60, 647 F.3d 754, 766 (8th Cir. 2011)). On this basis, speech that “actually causes” a substantial disruption to the educational environment is not protected by the First Amendment. Id. at 778.

In deciding the case, the Court concluded that although A.S.’s social media post was created off school grounds, it was purposefully designed to bully and harass another student by generating talk among other students at the high school at A.S.'s invitation and encouragement. Not only had it caused an actual disruption at the school, it was reasonably foreseeable to school administrators that, if left unchecked, the disruption would continue given the effect it already had on C.S., as well as the students who expressed concern for him to teachers and administrators, but also on the students who continued to tease and make comments to C.S. about his death. On this basis, the Court held that A.J.’s off-campus speech was not protected by the First Amendment and that the school district was within its authority to discipline A.S. for his speech.