Andrew David Postal
American policymakers, from school board members to elected lawmakers, must constantly strike a delicate balance between disciplining students for misconduct and protecting student speech rights. These decisions are often controversial and must adapt to rapidly changing technologies. Nowhere are these tensions more apparent than in laws aiming to address the problems caused by cyberbullying in American K-12 public schools. This paper employs a functional approach to sociotechnical analysis, which identifies a new sociotechnical harm of cyberbullying, the relevant technologies involved, shortcomings in existing laws, and changes that must be made in laws to rectify the shortcomings. This work updates previous research on student speech and the First Amendment by including recently-passed state laws aimed at addressing cyberbullying specifically. Additionally, it looks more broadly at how to balance student speech and moves beyond examining general bullying laws by creating a unique policy framework for evaluating existing cyberbullying laws.
This research accomplishes three main goals. First, it will outline existing legal jurisprudence shaping First Amendment protections to student speech. Second, it will detail how online social media sites and electronic communication methods create and contribute to new sociotechnical problems associated with cyberbullying, which while similar to bullying, is distinctly different. Third, it will analyze the text of state cyberbullying laws from Illinois, Michigan, North Carolina, and California, arguing that broad language giving schools the authority to step beyond their physical and electronic boundaries to punish students for online content created on off-campus, non-school sanctioned computers runs against the constitutional limits placed on schools by the Tinker decision, which states that schools must stay within their geographical boundaries when punishing student speech that administrators believe will cause a substantial disruption to the educational mission.
Overall, this article argues that laws aimed at addressing cyberbullying must limit schools to a jurisdictional substantial disruption approach. By this, I mean schools should not discipline students for content produced outside of the physical boundaries of the school, including its network. While off-campus cyberbullying is still problematic, other entities, such as law enforcement and social media platform terms of service, should govern any content. Instead of focusing on legal solutions to the problems brought on by cyberbullying, lawmakers and schools should focus more on shifting societal norms and teach youth how to properly conduct themselves on the Internet. To more effectively and constitutionally address the problems brought on by cyberbullying, lawmakers and schools should focus on shifting societal norms.