Is Cyberbullying Simply an Expression of Free Speech?


A colleague of mine recently posed the following questions after listening to my recent interview on Wisconsin Public Radio:

Q:  If a student were bullying someone & claimed they had the right of freedom of speech to say whatever they want, how would you respond?

Q:  If a public official felt they were being bullied & threatened by constituents who claimed right of freedom of speech to say what they wanted, what would you say?

I thought others might be interested in my perspective, so I post my response here. Freedom of speech is an important issue and it is vital that we protect that freedom.  We have the right to say a lot of things in the United States.  But we don’t have the right to threaten, harass, intimidate, or otherwise mistreat someone.  Moreover, even though the Supreme Court famously said that students ‘do not shed their free speech rights at the schoolhouse gate’ (Tinker v. Des Moines, 1969), they also said that the rules are different at schools for educators who have a responsibility to maintain an appropriate and safe learning environment at school (see, for example, Bethel School Dist. v. Fraser, 1986).  So it is easier to restrict student speech at school than student speech away from school.  Of course this creates many problems from a cyberbullying standpoint to the extent that much cyberbullying occurs away from school, but clearly could significantly affect the school.  There are many legal questions that remain unanswered or have been answered differently depending on various lower court rulings.

As you probably know, for many purposes, teachers are considered public officials.  But the key to your second question is the nature of the speech.  Again, Americans have the right to criticize public officials (including students criticizing teachers).  They simply must do so in a responsible and respectful manner.  From a school perspective, if a student criticizes a teacher in a manner that results in a material and substantial disruption at school, then the school has the authority to formally discipline (they always have the right to informally discipline—calling parents, meeting with principal, etc.).  So a student is free to post on his Facebook page that ‘Mr. Smith is a bad teacher.’  But if he does so in a way that is disruptive at school, discipline could result.  Of course irrespective of the ability of the school to intervene, the target of the criticism could sue the bully civilly for harassment or intentional infliction of emotional distress or libel or something else if he chooses.  It is unclear how a judge would respond to this – I imagine it could vary widely depending on a lot of circumstances.

It is not completely clear how these broad principles would apply to a student criticizing (bullying?) another student.  It’s even muddier in the context of cyberbullying.  The same disruption standard would generally apply—at least for a school to discipline the bully, but I’m not aware of any case law that has addressed this question specifically.

So the bottom line is schools are different and treated as such by the law.  That doesn’t mean that everything is cut and dried, though.  What do you think?  Should educators be able to discipline students for their harassing speech at school?  What about away from school?


  1. I believe that educators should be able to discipline for harassing speech at school. When issues arise in schools that cause distruptions in learning (e.g. harassment – in any form), the school must act. I would hope that "in loco parentis" would support such action in a courtroom setting. I think the same thing would be able to hold true about harassment outside of the school – again as long as it is tied to some disruption of the learning environment. I would like to think that even if the school erred on the side of caution regarding a matter of harassment, that the courts would look more favorably upon it than if the school had done nothing.

  2. Cyberbullying is the indirect way kids now-a-days are expressing their negative feelings about one another. Before the internet, cell phones, texting, etc, bullying was done face to face and rumors were spread by word of mouth, however kids have found a way to abuse technology to get down and dirty and betray and belittle their so-called friends. This form of harassment has taken bullying to the next level and now little work has to be done to have the whole world know how much they despise one another. The result to this kind of technical advancement is becoming detrimental to many lives as they feel the only way out is to commit suicide. Kids have become vicious in the way they treat one another, but what can be done to stop it? I feel that schools do have a responsibility to take action in preventing bullying and in cases of students being bullied. Disciplinary actions must be taken to punish those who are bullying others and their parents should be notified.

    I remember when I was a child I was bullied by the girls on my bus which made my life a living hell. Back then, the internet or cell phones were just becoming popular so it wasn't used to bully me, but I can imagine how horrible that could have been. I used to be the nerdy big glasses girl who was very quiet, shy, and hung out with the nerdy Gothic type guys. Most of my friends were guys and I think that was one of the reasons I was bullied so much (that and the fact I was an easy target). I had things thrown at me; I was called foul names, and had many rumors about me being a slut spread around. Life was hard back then. I told the bus driver, teachers, principle, counselors, and my parents (who thought I somehow caused them to hate me) and no one did anything. One day I had enough of their abuse and got into a fight with the ring leader of the group. That’s when people finally took me serious and transferred me into a different school which I loved deeply graduating with a 4.5 GPA. I always wondered why on earth did it take violence like that for somebody to do something about my bullier? I guess it made it easier to send me away instead of sending a whole group of people to different schools. Bullying now-a-days, I can imagine, has become a living nightmare for those being picked on especially with technology.

  3. Cyber bullying is often anonymous. Bullies are able to create anonymous emails or chat room names and threaten people without knowing who is really attacking them. By being able to hide your identity you are able to bullying another person without worrying about outside factors such as society to stop one from causing harm. If you are able to idle and no one know who you are that gives you more power to bullying because you do not have the pressure of other people knowing it is you, so you have no limitations to what you can say because you are less afraid of what people are going to say because they do not know it is you. If you are not able to say something to someone while revealing your identity then you are pretending to be someone you are not just because you can hide your identity does not mean you can just beginning bullying someone because you have power. I personally thing it’s cowardly to bully someone without knowing who is attacking them. If you have something to say to that person say it and stand behind your words not be a coward and hide.

  4. Another issue in cyber bullying has been blogs and forums. Celebrities more than anyone feel the heat from blogs and forums. Blogs and forums are constantly attacking other people and putting their business out in the open. It is hard for people not to read what is being said about them; therefore people are affected by what is being said about them in these blogs. A lot of times people think that they are not doing anything wrong by commenting on forums or blogs about people but in fact they are part taking in cyber bullying. Now a day’s people have to be careful about what they do or say because blog are taking what they are saying and blowing it out of context, making the person who said something look bad and are being talked about in the internet, therefore, making them victims of cyber bullying.

  5. I know Kiwi Farms is responsible for doing stuff like this, falsely accusing others of being retarded and such. Surprised that the feds haven’t got after them with the suicides under it’s belt.

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