Cyberbullying
Under California Safe Place to Learn Act which deals with student-on-student bullying, “schools must develop and post policies that: set out the process for students and others to report bullying; set out the process for investigation of such reports; require school employees to intervene and stop incidents of suspected bullying; establish an appeal process for a student to follow to challenge a finding of bullying; and prohibit retaliation against anyone who reports suspected bullying”[ CITATION Eng20 \l 1033 ]. To reach the threshold for misdemeanor cyberbullying a person must first disseminate personal information to cause fear and any personal identifying data and a harassing message through a post on social media, or in this case Facebook. The maximum penalty for this crime is one year in jail, a maximum fine of $1,000, or perhaps both. The Huntington Beach Union High School district states that cyberbullying is not an acceptable use of the First Amendment while on school grounds, which is an overly broad statement that would not be able to withstand challenges to it unless it falls under a very narrow standard.
There are limits to freedom of expression, and under the Supreme Court’s Tinker standard, “student speech is protected by the First Amendment unless school officials can demonstrate that the speech creates a substantial risk of a material disruption of the orderly operation of school” (Goldstein, 2017). Apparently, the student has been subjected to bullying through a classmate’s Facebook page. To what extent is not known, but the student who owns the Facebook page can argue that her freedom of speech is being impeded on her own private page. However, under Kara Kowalski w. Berkeley County Schools, the Fourth Circuit determined that the speech “created actual or reasonably foreseeable substantial disorder and disruption” and was not needed to be tolerated nor protected under the First Amendment. The circumstances were similar to each other in that both were hate websites against another student; the only difference that I can see is the private versus the public aspect of each respective website that does not affect the First Amendment of the student. Similarly, in D.J.M. v. Hannibal Public District #60, the Eight Circuit ruled that a student’s First Amendment freedom of speech was not protected because it was either a substantial disruption or a true threat, a threat that any reasonable recipient would take seriously as intent to harm the student and is communicating this through another student. The only difference, in this case, is that the student that was texted the threats came forward with an adult and in this case, the student that was the target of the threat is coming forward after hearing about the Facebook page through her fellow students. In J.S. v. Blue Mountain School District & Layshock v. Hermitage, the students made fake profiles to parody their principals, the court ruled “the First Amendment prohibits the school from reaching beyond the schoolyard to impose what might otherwise be appropriate discipline.” It was obvious to the court that it did not pose a substantial threat to anyone, and while the children should be disciplined, it should be by their parents, not the school. In T.K., M.K. v. Smith-Green Community School Corporations, the girls posted provocative and suggestive photographs of themselves, and the actions happened off-campus, and were not pornographic in any way. Thus, their actions were protected by freedom of expression, and the photographs belonged to whoever took them. Therefore, even if the student being bullied did not want her picture depicted, she posed for them, and they belong to the photographer. The only recourse that she has is to have to school suggest that they take it down.
References
D.J.M. v. Hannibal Public District #60, 647 F. 3d 754 (Eight Circuit US Court of Appeals August 1, 2011).
England, D. (n.d.). Cyberbullying Laws in California. Retrieved January 17, 2020, from https://www.criminaldefenselawyer.com/resources/cyberbullying-laws-california.htm
Goldstein, A. (2017, March 27). A law review article on bullying preaches free speech but proposes limiting it. Retrieved 1 1, 2020, from thefire.org: https://www.thefire.org/law- review-article-on-bullying-preaches-free-speech-but-proposes-limiting-it/
Huntington Beach Union High School District. (2019). Technology Acceptable Use Policy.
Retrieved January 12, 2020, from hbuhsd.edu: https://www.hbuhsd.edu/apps/pages/technology-policy
Jacobellis v. Ohio, 378 U.S. 184 (Supreme Court June 22, 1964).
Kara Kowalski w. Berkeley County Schools, No. 10–1098 (Fourth Circuit US Court of Appeals July 27, 2011).
Layshock v. Hermitage School District, No. 07-2265 (Third Circuit US Court of Appeals February 4, 2010).
New Jersey v. T.L.O., 469 U.S. 325 (Supreme Court January 15, 1985).
Schmike, A. (2016, August 24). How should schools handle Sexting? Retrieved January 1, 2020, from Chalkbeat: https://www.chalkbeat.org/posts/co/2016/08/24/how-should-schools-handle- sexting-not-like-they-are-now-Denver-professor-says/
Snyder v. Blue Mountain School District, No. 08-4138 (Third Circuit US Court of Appeals February 4, 2010).
T.K., M, K. v. Smith-Green Community School Corporations, No. 1: 09-CV-290-PPS, 2011 WL 3501698 (N.D. Ind. August 10, 2011).
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (Supreme Court February 24, 1969).
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Question 
A student notifies you that she has been subjected to bullying through a classmate’s Facebook page.
Cyberbullying
In this assignment, you will answer the following
- Provide the steps you are required to take that are consistent with state statutes, your district’s school board policies, the faculty handbook, and the student handbook;
- Any First Amendment arguments you think the student with the Facebook page may raise; and
- Responses you could make to the First Amendment arguments that are consistent with the cases in the assigned readings.
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