Online Speech Debated in J-Term Course

Can schools punish students for online speech? This question, posed by Dean James Ryan as part of his J-Term seminar, opened the doors to many more questions. Calling the issue a “remarkably difficult” one in the legal and policy sense, Ryan pushed students to think deeply about many of the issues plaguing school officials and courts regarding online speech today.

“As you know, social media is pervasive; students communicate all the time online,” Ryan said. “Sometimes students say incredibly nasty things – beyond nasty – they harass, they torture other students through online postings leading to a new term in our vocabulary, not just bullying, but cyberbullying.”

The dilemma for many school officials is whether or not to intervene. In many cases, schools face the potential of liability with or without intervention. Yet, to date, there are no clear cut rules on the issue.

Over the two-hour discussion, Ryan urged students not to think about what the law might already say, but to move past it. “The law is really unclear. What you won’t get out of this session is a bright-line rule about when schools can intervene or when they have to intervene because unfortunately the law is not yet settled,” Ryan said. “The court has not yet issued a definite ruling about the rights of students in this context. The nice thing is it gives us an opportunity to think about what that rule would look like.”

The class delved into cases examining student activity online, ranging from threats of physical harm to images of sexual acts to inappropriate messages about teachers. Looking through the lens of prior landmark cases between schools and student speech like Tinker v. Des Moines and Bethel v. Fraser, students wrestled with how and whether any of these cases could apply to online speech and schools today.

The students were divided regarding how to judge cases of online speech. While some students thought the line could be drawn based simply on whether the act occurs during school hours on campus, other students struggled with whether the physical location from which online speech originates matters, especially if it has potential to harm the school, staff, or students.

“It’s always foreseeable that online speech could end up on campus,” Ryan reminded them.

Beyond potential issues tied to the school campus, similar questions arise when judging student online speech based on content. How does one determine whether a student’s speech is truly harmful or not? The question creates a scenario in which educators become monitors of speech and potentially violate students’ First Amendment rights.

“You see the problem, right? Schools don’t know what the rules are — that’s a problem,” Ryan said. “If you act, you might get sued. But it’s a problem if you don’t act and harm occurs because you might get sued. So, what school officials would like most of all is clarity, and right now there is no clarity because the court has not spoken about what the rules should be.”

While states have begun to pass their own laws, in particular about cyberbullying, Ryan noted how there was still time for school boards and courts to weigh in on the issue. The issue of online speech isn’t one that will go away, Ryan said, while pointing out that he anticipates this reaching a higher court within the next five years.