Combating cyberbullying within the metes and bounds of existing Supreme Court precedent.

• Author: McHenry, Amanda

INTRODUCTION

Phoebe Nora Mary Prince, a pretty blue-eyed Irish teenager, moved to South Hadley, Massachusetts, in the summer of 2009. (1) A troubled girl, Phoebe had a history of bipolar disorder, depression, and self-mutilation. (2) The move to America seemed like the perfect opportunity to make a fresh start. She started her freshman year at South Hadley High School that fall. (3) Unfortunately, the new girl quickly became the target of ruthless and insufferable harassment at the hands of her peers. (4)

Much of the bullying stemmed from Phoebe's relationships with certain boys. (5) One female classmate, jealous that a boy she liked was taking Phoebe to a school dance, told Phoebe she should kill herself. (6) Other students called Phoebe an "Irish slut," physically threatened her, and knocked books from her hands on a daily basis. (7) Someone also scribbled her out of a class picture hanging up at school. (8) Even at home, Phoebe found no safe haven. Her bullies mocked her on Facebook (9) and harassed her via text messages. (10)

It all became too much for Phoebe. In January 2010, while Phoebe was walking home from school, some students hurled a crumpled soda can and shouted obscenities at her from a passing car. (11) Although she had endured similar treatment over the past several months, (12) at that moment Phoebe's suffering crescendoed, and she text-messaged a friend that she "[couldn't] do it anymore." (13) Her little sister found her hanging from a stairwell later that afternoon. (14)

Phoebe is just one of the many teens who have taken their lives in response to relentless bullying. In Ohio, four students from the same high school killed themselves within a three-year span as the result of teen bullying. (15) One of the students, Jennifer Eyring, was bullied because of her learning disability. (16) She pleaded with her mother every morning to let her stay home and, when forced into school, needed Pepto-Bismol to calm her stomach. (17) Jennifer overdosed on antidepressant pills in 2006. (18) Eric Mohat and Meredith Rezak, close friends, faced ruthless harassment because their peers believed they were gay. (19) In 2007, the friends shot themselves to escape their pain. (20) A year later, Sladjana Vidovic also committed suicide after months of ridicule from fellow students. (21) Classmates called Sladjana a "slut" and made fun of her thick Croatian accent. (22) She ultimately jumped out of her bedroom window with a rope tied around her neck. (23)

While these Ohio students were all victims of traditional bullying, modern technology now plays a significant role in many teen suicides. For example, Jessica Logan, a student in the Cincinnati suburb of Montgomery, Ohio, (24) hanged herself in 2008 after an ex-boyfriend disseminated nude photographs of her to hundreds of students. (25) Female classmates called her a "slut" and "whore." (26) According to her mother, Jessica committed suicide because the harassment became unbearable. (27) Tyler Clementi committed suicide after his roommate, Dharun Ravi, allegedly broadcast a live sexual encounter between Tyler and another male over the Internet. (28) When Tyler learned of the broadcast, he jumped off the George Washington Bridge into the Hudson River. (29)

Stories such as these have led the media to suggest that bullying has reached pandemic levels. (30) Indeed, bullying is a growing problem in American schools. One hundred sixty thousand children will miss school today for fear of being bullied. (31) With the advent and popularization of the Internet, an age-old practice has taken on an entirely new form. Victimization that was once limited to buses and playgrounds now extends to the home computer and cell phone. (32) Victims can no longer find a safe haven in their bedrooms. (33)

This Note explores the cyberbullying controversy, focusing on the conflict between the desire of schools to provide a safe learning environment and the First Amendment rights of their students. (34) Part I discusses the seriousness of bullying and why it is particularly harmful in the cyber age. Part II then details the Supreme Court's treatment of student speech and a school's ability to regulate that speech when it materially or substantially disrupts the work and discipline of the school or invades the rights of others under Tinker v. Des Moines Independent Community School District. (35) Part III explains that the majority of lower courts have extended the Tinker standard to off-campus speech. These holdings suggest that, because it ostensibly occurs within the school environment, cyberbullying can be regulated by school officials as student speech. But, Part IV argues that this approach is misguided, resulting from the application of the Tinker standard to circumstances that the Supreme Court never intended, and that schools, in fact, lack the constitutional authority to regulate off-campus student Internet speech. Finally, Part V explores alternative methods to combat cyberbullying and proposes a legislative approach that would compel schools to promote awareness within their communities and implement stringent on-campus bullying policies. The inclusion of such a model policy could also clarify the line between constitutionally protected speech and unprotected bullying that is subject to school discipline.

1. THE CYBERBULLY1NG PROBLEM

   The Center for Safe and Responsible Use of the Internet defines cyberbullying as "being cruel to others by sending or posting harmful material or engaging in other forms of social cruelty using the Internet or other digital technologies." (36) Cyberbullying takes many forms: a bully may create a website that makes fun of the victim, circulate cruel or harmful material about the victim, or exclude the victim from buddy lists and chat rooms. (37) Bullying of any kind may result in depression, anxiety, chronic illness, poor self-esteem, substance abuse, family problems, and suicidal ideation. (38) Moreover, victims of cyberbullying are nearly twice as likely to commit suicide as compared to the general population. (39)

   Cyberbullying is more harmful than traditional bullying for several reasons. For instance, online content is "harder to wash away than comments scrawled on a bathroom wall," (40) and its cruelty thus constantly plagues its victim. (41) Cyberbullying's victims are also unable to escape torment, even in their own home (42) and may be in perpetual fear of another attack. (43) This anxiety often results in poor academic performance and increased absences from school. (44) Moreover, because cyberbullies can cloak their identities through screen names and e-mail addresses, victims may not even know who is tormenting them, (45) which can add to the anonymity that often motivates the bullying in the first place, and transforms school into an unwelcome and unsafe environment. (46)

   Cyberbullying's electronic medium can also lead bullies to be crueler to their victims. Because cyberbullying occurs "from a physically distant location ... the bully does [not] ... see the immediate response of the target." (47) As a result, cyber-attacks can be particularly brutal. Psychologists have concluded that "'the [physical] distance between bully and victim ... is leading to an unprecedented--and often unintentional--degree of brutality, especially when combined with a typical adolescent's lack of impulse control and underdeveloped empathy skills.'" (48)

   Finally, unlike in the lunchroom or on the playground, there is little supervision in cyberspace. (49) Parents who lack technological savvy may not realize that their children are bullies. (50) Even if parents discover that their son or daughter is harassing another student through the Internet or a cell phone, they may believe that bullying is a common form of schoolyard behavior. (51) Moreover, victims of cyberbullying may find it difficult to disclose their victimization. (52) Dominique Napolitano, a fifteen-year-old who testified before a House committee on the issue in June 2010, explained that victims are afraid that the bullying will become worse if they seek help from an adult. (53) Unfortunately, when parents, schools, and communities fail to intervene--because of unfamiliarity with modem technology, indifference toward the situation, or any other reason--children learn that such behavior is tolerable. (54)

   The number of students who fall victim to cyberbullying is unclear because of definitional uncertainty and significant variation among research findings. (55) One fact, however, is clear--cyberbullying is a major societal problem without a simple solution. If school officials attempt to restrict cyberbullying to protect some of their students, they risk infringing upon the First Amendment rights of others.

2. FIRST AMENDMENT CONSIDERATIONS

   Even though cyberbullying has harmful, and sometimes deadly, consequences, even bullies have constitutional rights. Interact speech may be entitled to First Amendment protection. Schools must, therefore, have the constitutional authority to regulate this expression if they wish to address the cyberbullying problem. (56)

   Students are "persons" under the Constitution and are thus unquestionably entitled to free speech rights. In Tinker v. Des Moines Independent Community School District, (57) the Supreme Court famously held that "[i]t can hardly be argued that ... students ... shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (58) In fact, the First Amendment plays an important role in public education. As the Supreme Court noted in Keyishian v. Board of Regents (59):

   The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. The classroom is peculiarly the marketplace of ideas. The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through...