Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Sep 19, 2012

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In Ghostbusters II, after the Ghostbuster team has informed the mayor of New York that the city’s negative attitude has taken physical form as a dangerous slime threatening the city, the mayor angrily responds with a classic quote: Being miserable and treating other people like dirt is every New Yorker’s God-given rightWhile the Constitution doesn’t refer to the right to free speech in quite the same way, our First Amendment rights allow us to express any negative thoughts we have, with some limitations based on the time, place, and potential outcome. 

As social media makes it increasingly easy to bully and tease others in front of a large online audience, concerned parents and teachers find themselves faced with a choice between free speech and the need to limit vicious teasing using sites like Facebook and Twitter that cause serious damage to young victims.  Campaigns against student on student cyberbullying have led to laws in almost every state that curb and punish online cruelty from one teenager to another, and now in North Carolina, protection from student cyberbullying extends to teachers. 

Looking to protect educators from harsh and disparaging words from students over social media outlets, North Carolina has recently passed a law that makes it a misdemeanor for any student to post any online statements that “intimidate or torment” their teachers.  For more information on this law, and why teachers thought it was necessary, click here for an in depth discussion of the legislation.

This broad and aggressive law restricts almost any negative comments towards teachers, and even someone unfamiliar with Constitutional law should have their free speech hackles raised. Traditionally, schools have a limited right to restrict free speech if the intent or outcome is disruptive.  In the 1969 Supreme Court set the standard for student free speech in school with its ruling in Tinker v Des Moines.  The high court found that a student does have free speech rights on campus, but that the school may punish a student for speech that created a “significant disruption to school activities or violated others’ rights.”

Now that social media allows students to widely distribute school related speech that is made off of school grounds, courts must define anew what behavior is sufficient to cause “significant disruption to school activities” as required by Tinker.  Schools across the country have taken action on their own to punish offending students, and a scattering of cases have demonstrated that the legal system has not yet provided an easy answer about what restrictions are acceptable:

  • Last year in Connecticut, the Federal Second U.S. Circuit Court of Appeals found that administrators were within the bounds established by Tinker when they punished a student for encouraging her peers to call school officials a profane name for canceling a school event.  The Court determined that the student’s blog post sufficiently created a substantial disturbance at school, even though the post was not made on school grounds.
  • In Pennsylvania, the Third U.S. Circuit Court of Appeals ruled the other way on two 2011 cases.  In these cases, school administrators wrongfully punished two students who had made insulting comments about their school principals.  In these cases, the insults, made privately on social media pages, were protected by free speech because they did not disrupt school activities or infringe on the rights of the principals.
  • Most recently, in September of 2012, a U.S. District Court in Minnesota ruled that school officials who required a student to provide access to social media accounts violated her 1st and 4th Amendment rights of free speech and due process.  While at home, the student submitted a post expressing her displeasure with a teacher, and school administrators forced her to log on to her social media account while at school the next day before punishing her for the comments she made online.  This court also cited Tinker, stating “out-of-school statements are protected under the First Amendment and not punishable by school authorities unless they are true threats or are reasonably calculated to reach the school environment and are so egregious as to pose a serious safety risk or other substantial disruption in that environment.”

The Supreme Court has yet to weigh in on this issue, but if it accepts a ruling like the recent Minnesota decision, then laws like the one in North Carolina face an uphill battle.  Contained in the District Court’s ruling are a number of factors that are difficult for a school or a prosecutor to show, and it would seem that a student must be overtly threatening a teacher or inciting a disruptive movement order to be punished for social media content. 

Social media provides a perfect outlet for discourteous commentary because it allows someone to express themselves without social consequences such as immediate argument or confrontation – isolation and anonymity embolden incivility.  But however repulsive social content becomes, legislation that punishes online commentators for abusive statements must keep in mind that the First Ammendment rights protect all speech – even the words that make us cringe.