Anomalies in the US Cyberbullying Jurisprudence

Tamás Pongó

Abstract

This article focused on US case law and analyzed the evolution of students’ freedom of speech from 1969 to this date in the US. Therefore, it briefly introduced the tests and doctrines, which were created in the landmark cases of the Supreme Court of the United States (SCOTUS), noting that these cases were dealing with offline, on-campus situations and their determinations are not necessarily fully applicable to situations we might experience today. Nevertheless, the tests and doctrines, which were created in SCOTUS landmark decisions, are still in force and every cyberbullying judgment is still based on them even in the era of the Internet. Taking into consideration that the world has changed since these tests were established, I examined some more recent cyberbullying cases in the US, where these above tests were applied.

Based on the analysis of SCOTUS and some Circuit Court jurisprudence, Certain anomalies were revealed, which serve as a basis to clearly state that the US system suffers from severe deficiencies, like handling the off-campus origin of the speech, or defining the substantial disruption or the sufficient nexus. However, the US courts have worked out tests and doctrines as a basis for their cyberbullying jurisprudence, so they are on the right track, but the jurisprudence will remain ambiguous and unpredictable without a SCOTUS landmark decision regarding cyberbullying.

Keywords

Supreme Court of the United States, Freedom of Speech, Tinker, Substantial Disruption, Snyder, Layshock, Kowalski, Cyberbullying

References

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[1] Auerbach, S. 2008-2009. ‘Screening Out Cyberbullies: Remedies for Victims on the Internet Playground’, Cardozo Law Review, vol. 30, p. 1641.

[2] Bendlin, S., S. 2013. ’Cyberbullying: When is it „School Speech” And When is it Beyond the School’s Reach?’, Northeastern University Law Journal, vol. 5, p. 47.

[3] Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986).

[4] Erb D., T. 2008. ‘A Case For Strengthening School District Jurisdiction To Punish Off-Campus Incidents of Cyberbullying’, Arizona State Law Journal, vol. 40, p. 257.

[5] Greenhill, J. 201-2011. ‘From The Playground To Cyberspace: The Evolution Of Cyberbullying’, Charlestone Law Review, vol. 5. p. 705.

[6] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988).

[7] Horowitz, M. & Bollinger M., D. 2014. Cyberbullying in Social Media within Educational Institutions - Featuring student, employee, and parent information, Rowman & Littlefield, United Kingdom.

[8] Hostetler, R., D. 2014. ‘Off-Campus Cyberbullying: First Amendment Problems, Parameters, and Proposals’, Brigham Young University Education and Law Journal, no. 1.

[9] JS Ex Rel. Snyder v. Blue Mountain Sch. Dist., 650 F. 3d 915 - Court of Appeals, 3rd Circuit 2011 (Snyder I-II).

[10] Kowalski v. Berkeley County Schools, 652 F. 3d 565 - Court of Appeals, 4th Circuit 2011.

[11] Layshock v. Hermitage Sch. Dist., 593 F. 3d 249 - Court of Appeals, 3rd Circuit 2010.

[12] Morse v. Frederick, 551 U.S. 393 (2007).

[13] Pongó, T. 2015. ‘Anglo-Saxon Approaches To Students’ Freedom Of Speech And Cyberbullying: Constitutional Foundations For A Comparative Analysis, ed. S.C. Universul Juridic S.R.L., Timisoara.

[14] Tinker v. Des Moines Sch. Distr., 393 U.S. 503 (1969).

[15] Weil, A., O. 2012-2013. ‘Preserving The Schoolhouse Gates: An Analytical Framework For Curtailing Cyberbullying Without Eroding Students’ Constitutional Rights’, Ave Maria Law Review, vol. 11, p. 541.

DOI: http://dx.doi.org/10.5817/MUJLT2016-2-2


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