Student Expression as Bullying

Olivia T. - LLI Columbus

Student expression is something encouraged among most, if not all, student bodies. They are taught to express their opinions but these opinions are not restricted to just positive thoughts. These indications of feelings are protected under the 1st amendment of the constitution, which states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”. Connecting this amendment to the term “bullying” is the main concern when determining if or when the freedom of speech is protected. There is a very distinctive line between bullying and expressing your opinion.  The definition of a bully is “a blustering, quarrelsome, overbearing person who habitually badgers and intimidates smaller or weaker people” To restrict the publications and posts of students is accordingly restricting and putting limits on an individual which violates the fourth amendment.

According to the cases J.S v. Blue Mountain School District as well as Layshock v. Hermitage School District, both courts decided that the students couldn’t be constitutionally punished for off campus speech just because the comments made by the students about the principal could be seen anywhere. Cyberbullying relates to intimidating an individual online. But what is the line drawn between an offensive statement and a basic opinion?

One statement may seem very harsh to one person but completely agreeable to another. How can we tell the difference?

You can’t change the way the constitution is applied to one person but not another individual. Bullying ultimately depends on the recipient and how they feel. A harmless statement from one person can be unintentionally perceived as harmful to another especially on social media.

In another case Virginia v. Black, the term “true threats”, which are statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual group or person, is applied. This is where the off campus post may be questioned when there are specific threats being made. But as far as general opinionated statements, you can’t determine if one meant harm or not by assumption because that results in restricting the freedom of speech. This is unlike Tinker v. Des Moines, where the students held their expressions during school ultimately causing a disruption within the school, which is different than off campus posts which are conducted at home where officials cannot regulate.

All in all, bullying can be perceived in any general statement made. The actuality of the intentions of harm or threat is to be considered in every situation, especially in off campus situations because you are restricting the limits of one’s first amendment. The only question that must remain is, is there a true threat? Assumption of a statement to be disruptive and punishable is unconstitutional. 

Sources Considered 

  • Kowalski v. Berkely County Schools, 652 F.3d 565 (4th Cir. 2011).
  • Walsh, Mark. "Court Upholds Discipline of Student Over Internet Bullying." The School Law Blog. Education Week. 27 July 2011.
  • LoMonte, Frank. "Supreme Court's Online Speech No-Decision Counts as a "Win" for Student First Amendment Rights." Student Press Law Center. 18 Jan. 2012.
  • "School Authority Over Cyber Bullying." WR150 First Amendment Portfolio. e-Portfolios Directory.
  • Hudson Jr., David, L. "Cyberspeech." K-12 Public School Student Expression Overview. Newseum Institute. 1 Aug. 2008.