What happens when cyberbullying laws and policies collide with a student’s First Amendment free-speech claims?
A recent federal district court decision out of New Jersey recently struck the balance in support of cyberbullying laws.
Bryshawn Dunkley, a senior at Cedar Creek High School during the 2013-14 school year, received a two-day suspension for a YouTube video criticizing a football teammate.
A couple of months later, he received an additional nine-day suspension for Twitter postings from an account he co-managed with another student.
The Twitter account featured several messages referring to female students as “hoes” and also used the word “nigga.”
Dunkley filed a First Amendment lawsuit, contending that school officials violated his free-speech rights by punishing him for off-campus student expression that did not cause a material and substantial disruption under Tinker v. Des Moines Indep. Comm. Sch. Dist. (1969).
School officials countered that the New Jersey anti-cyberbullying law required them to punish Dunkley for his harassing, intimidating, and bullying speech.
U.S. District Judge Noel L. Hillman emphasized the language of the New Jersey Anti-Bullying Bill of Rights Act, which provides in part: “Harassment, intimidation, or bullying … is conduct that disrupts both a student’s ability to learn and a school’s ability to educate its students in a safe environment.” This law requires school districts to adopt policies prohibiting bullying.
Dunkley argued that his speech was innocuous and nondisruptive of school activities.
However, the judge found the speech caused disruption at school, because officials had to take the time to investigate the Twitter account and fielded complaints from parents and students about the tweets.
The judge also noted that Dunkley intended for other students to read and watch his postings.
“Consequently, because [Dunkley’s] out-of-school speech reached into the school, constituted harassment, intimation and bullying under the Anti-Bullying Act, the Court cannot find that defendants violated [Dunkley’s] First Amendment rights,” the judge wrote in Dunkley v. Bd. of Educ. of the Greater Egg Harbor Regional High School District.
The decision is significant for several reasons.
First, it shows how importantly courts treat anti-cyberbullying laws and policies.
Second, it explains that time spent investigating Twitter accounts counts in terms of whether there is a disruption.
Third, it clearly explains that school officials can punish students for off-campus, online student expression.
David L. Hudson, Jr. is the author, co-author, or co-editor of more than 40 books, including: “Let The Students Speak!: A History of the Fight for Free Expression in American Schools,” “The First Amendment: Freedom of Speech,” and “Teen Legal Rights.”