This Article is one in a series about bullying and cyberbullying in schools. I argue that the proper analysis for a First Amendment challenge to school discipline for off-campus misuse of the Internet to harm or harass a member of the school community based on the victim’s identity depends on the nature of the offending behavior. For students who are punished for a single incident – what I will call cyberattacking – a Tinker analysis makes sense. But, given that Tinker’s “substantial disruption” standard originated in the context of student protests and that targeted identity-based harassment can create substantial disruptions to the school environment of a different sort, the reach of the “substantial disruption” standard will have to be clarified to include serious impairments to the victim’s right to equal access to education and the impact of the attack on the victim’s community identity. For students who engage in a pattern of repeated incidents of cyberattacking – what I will call cyberbullying – their creation of a hostile educational environment for their victims parallels the behavior of harassers. Therefore, the relative merit of cyberbullies’ First Amendment defenses to lawful punishment should depend more on the interaction between free speech rights and harassment than on the interaction between free speech and a single incident of aggression. And, while the Supreme Court has never explicitly considered a First Amendment challenge to a harassment or stalking statute, it has stated that threats fall outside the protections normally afforded to more valuable speech. In this context, just like the state has a compelling interest in protecting a captive, victimized minorities from hostile environments and abuse in certain contexts, so too does the state have a compelling interest in protecting students who are bullied because of their sexual identity. For these egregious cases, a First Amendment defense to discipline should fail.
71 Md. L. Rev. 705 (2011-2012)