Social Media
Social Media: Students Behaving Badly
By Meg Hazel
O ne night, after completing tons of homework,
middle-school Johnny decides to log on to
Facebook. He posts a status on his wall that says: My
teacher Mrs. Smith is awful! She is a smelly pig and
should just die. To make his posting entertaining, he
downloads a picture of Mrs. Smith from the school Web
site and gives her a pig nose. Many comments from his
friends soon follow, most of them agreeing that Mrs.
Smith is a rotten teacher. Johnny keeps his postings pri-
vate to his friends list, but one of them decides to share
it on his wall. Soon, like the flu, Johnnys posting has
spread throughout the student body.
Mrs. Smith heard of the posting and is upset. The prin-
cipal decides to suspend Johnny for three days. Johnnys
parents come to you, their attorney, believing that the
school has no right to do this to their son. After all, he
was at home on his own computer when he posted.
How can the school reach into their home and regulate
what Johnny says? Does the school have the authority to
punish Johnny for what he wrote on his Facebook wall?
What if, instead of insulting a teacher, Johnnys com-
ments had been directed at a fellow classmate?
They blog, tweet, and comment.They email, message,
and post. The days are gone when bullying was limited
to graffiti on the bathroom wallnow, a new genera-
tion of bullies uses the arsenal available on the Internet.
About 50 percent of children have experienced cyber-
bullying and between 10 and 20 percent of children
experience cyberbullying on a regular basis.1 Some
are driven to suicide. Teachers and even administrators
often are the brunt of cyberattacks. One of the favored
techniques is to create a fake profile of the administrator.
In one case, the profiles question and answer section
implied that the principal was a sex and drug fiend by
stating he smoked big blunts and was a big whore.2 cases of off-campus speech. In that case, the Supreme
Other bullies create and send hate-filled comments to
a Web page. In recent years, there has been a push for
schools and even legislatures to stop bullying, and many
states have passed laws making cyberbullying a crime.3
Before cyberbullying, schools had weapons to com-
bat this disruptive behavior: The eyes and ears of teach-
ers and administrators. The bullying, seen or heard by
school staff during school hours, clearly was a punishable
Meg Hazel is a lawyer with Moore Taylor Law Firm in West
Columbia, South Carolina.
Volume 32 Number 2 February 2015
offense. But now, the abuse can take place after school
hours and away from the sight of school officials. When
do schools have the authority to reach into the cloud and
punish a student for what they find? The line between
on-campus and off-campus speech has been blurred by
the easy availability of Internet access. Words and pic-
tures that once would only be shared between friends
are now posted for the entire world to see. Do schools
have the right to punish students for things they put on
the Web, on their own time, and in their own home?
When do schools have the authority
to reach into the cloud and punish a
student for what they find? The line
between on-campus and off-campus
speech has been blurred by the easy
availability of Internet access.
The short answer is yes. If a student posts something
on the Web that the administration reasonably believes
will cause a substantial disruption to the operation of
the school, even if the student never intends for the message to
reach the school, the student can be disciplined.4 The prob-
lem lies in how school administrators (and courts) define
reasonably foreseeable substantial disruption. Some
circuit courts imply that a substantial disruption must
occur. Others focus on whether it is reasonably foresee-
able. Still others examine the intent of the speaker. The
US Supreme Court has yet to define the parameters of
when off-campus speech falls under the authority of the
schools. Most circuit courts apply the holding in Tinker v.
Des Moines Independent Community School District to these
Court first addressed the free speech rights of public
school students. There, school administrators suspended
three students for wearing black armbands to school in
protest of the Vietnam War. However, Tinker was decided
in 1969. Should a court decision made before the birth
of the personal computer apply in todays technologi-
cal age? How can the holdings of a case involving stu-
dent protests of the Vietnam War give us guidance on
Facebook postings? Many courts have applied Tinker to
student speech cases where the speech originated off-
campus and on the Internet. However, the intensive and
often contrary factual analysis that accompanies these
The Computer & Internet Lawyer 9
Social Media
decisions provides the practitioner, parents, schools, and
courts little guidance. Although the US Supreme Court
had the opportunity to review three student Internet
cases from the Third and Fourth Circuits in 2012, they
declined to do so.
Regulating Student SpeechA Primer
The Supreme Court held that a school may regu-
late a students speech or expression if school officials
could demonstrate that the forbidden conduct would
materially and substantially interfere with the require-
ments of appropriate discipline in the operation of the
school.5 This standard cannot be met if school officials
are driven by a mere desire to avoid the discomfort
and unpleasantness that always accompany an unpopu-
lar viewpoint.6 School officials must have more than
an undifferentiated fear or apprehension of distur-
bance to overcome the students right to freedom of
expression.7 In a famous passage, the Court stated: It
can hardly be argued that either students or teachers
shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.8
In addition, Tinker held that a school may regulate
student speech that interferes with the the schools
work or [collides] with the rights of other students
to be secure and be let alone.9 Therefore, speech that
intrudes on the rights of other students may be prohib-
ited even if it is not expected to be substantially disrup-
tive.10 It is unclear how courts should apply this second
prong, as it was not developed in Tinker, and few courts
have done so.
Seventeen years later, the Court carved out the first
exception to Tinker. In Bethel School District v. Fraser, the
Court held that there is no First Amendment protection
for lewd, vulgar or patently offensive speech that occurs
in school.11 Fraser, a high school student, gave a speech
at a school assembly that was an elaborate, graphic, and
explicit sexual metaphor.12 The Court upheld the deci-
sion to punish the student, stating that the rights of stu-
dents in public school are not automatically coextensive
with the rights of adults in other settings.13 In other
words, public schools have an obligation to teach students
the boundaries of socially appropriate behavior.14
The Court would visit school speech again in 1988
and 2007, each time adding a new exception to the
Tinker rule.15 Hazelwood School District v. Kuhlmeier gov-
erns school-sponsored speech.16 In Hazelwood, the court
held that a school could edit and censor articles in a
school-sponsored newspaper, so long as their actions
are reasonably related to legitimate pedagogical con-
cerns.17 Morse v. Frederick governs speech promot-
ing illegal drug use.18 In that case, a student displayed
a banner proclaiming BONG HiTS 4 JESUS at a
10 The Computer & Internet Lawyer
school-sponsored event.19 The court held that this
speech could be restricted.20
All of these cases involved speech at school or a
school-sponsored event. There is no Supreme Court
case that addresses speech that occurs off-campus on a
medium that could reach everywhere.
The Court upheld the decision to
punish the student, stating that the
rights of students in public school are
not automatically coextensive with the
rights of adults in other settings.
Bullying the Teacher May Be OK
The Fourth Circuit has not had the opportunity
to review a case in which a teacher was the subject of
cyberbullying. Other circuits have applied the Tinker
reasonably foreseeable substantial disruption test to
these types of cases, but there is still significant disagree-
ment on when a material disruption is foreseeable. For
example, in California, a student posted a slideshow on
YouTube that depicted the killing of a teacher in his
school.21 The teacher came across the slideshow, and was
understandably upset. She became ill and lost sleep.22
The court held this was enough to foresee a material
disruption to the school environment.23 In Mississippi
the courts found the same. A student there posted a
YouTube rap video that criticized a coach and included
the lines: Looking down girls shirts/drool running
down your mouth/messing with wrong one/going to
get a pistol down your mouth and middle fingers up if
you cant stand that nigga/middle fingers up if you want
to cap that nigga.24 The coach stated he felt threatened
and his teaching style was affected. This was enough
for the court to hold that the video in fact caused a
material and/or substantial disruption at school and
that it was reasonably foreseeable it would cause such
a disruption.25 However, the Third Circuit has held that
fake profiles of administrators, as long as they are not
intended to reach the school or are so outrageous that
no one would believe them, are not enough to fore-
cast a substantial disruption.26 In one of those cases, the
fake profile stated that the principal had interests such
as: Detention, being a tight ass, riding the fraintrain,
spending time with my child (who looks like a gorilla),
baseball, my golden pen, fucking in my office, hitting on
students and their parents.27 The About me section
went on to state:
HELLO CHILDREN[.] yes. its your oh so won-
derful, hairy, expressionless, sex addict, fagass, put
Volume 32 Number 2 February 2015

on this world with a small dick PRINCIPAL[.]
Ihave come to myspace so i can pervert the minds
of other principals [sic] to be just like me. I know,
I know, youre all thrilled[.] Another reason I came
to myspace is becauseI am keeping an eye on
you students (who[m] I care for so much)[.] For
those who want to be my friend, and arent in my
school[,] I love children, sex (any kind), dogs, long
walks on the beach, tv, being a dick head, and last
but not least my darling wife who looks like a man
(who satisfies my needs) MY FRAINTRAIN .28
Though the principal was upset, the court held this was
not enough to foresee a substantial disruption.
Bullying a Classmate Is More
Likely to Be Punished
Especially in the case of threatening language, courts
are more likely to uphold punishment by the schools
against cyberbullying of another student. The Eighth
and Ninth Circuits have held that instant messages car-
rying threats of shooting other students, even if meant
as a joke, met the Tinker standard for foreseeable disrup-
tion, because administrators would have to take time to
deal with the repercussions of the threats.29 The Eighth
Circuit held that even racist and sexist comments made
against other students on a Web blog meet the stan-
dard.30 A California District Court, however, held that a
video posted on YouTube that degraded a fellow student
with profane comments was not enough, even though
the creator encouraged her classmates to watch. The
Court did advise, however, that the school could have
met the standard if they had cited to a history of past
disruptions caused by such incidents.31
The case closest to home is Kowalski v. Berkeley
County Schools.32 Kara Kowalski was a high school stu-
dent at Musselman High School in West Virginia. She
was elected Queen of Charm in her junior year and
was a member of the cheerleading squad. She came
home from school on December 1, 2005, and logged
onto the social network site MySpace.While on the site,
she created a new Web page with the heading S.A.S.H.
and which stated No No Herpes, We dont want no
herpes. She claimed it was to make other students
aware of sexually transmitted diseases, and S.A.S.H.
stood for Students Against Sluts Herpes, but the site
was obviously targeted against a student named Shay.33
The advice of the court was direct: Schools have a duty
to protect their students from harassment and bully-
ing in the school environment [S]chool administra-
tors must be able to prevent and punish harassment and
bullying in order to provide a safe school environment
conducive to learning.34 The court stated: [G]iven the
Volume 32 Number 2 February 2015
Social Media
targeted, defamatory nature of Kowalskis speech, aimed
at a fellow classmate, it created actual or nascent sub-
stantial disorder and disruption in the school.35 The
court decided that because she primarily invited her fel-
low students to join the page and encouraged targeted,
harassing, and vulgar postings, her actions fell under the
schools regulation authority.36
The conflicting decisions in the courts make it dif-
ficult, if not impossible, for attorneys, students, par-
ents, teachers, and school administrators to understand
the scope of student speech rightsin effect, leaving
the public to conclude that students have a right to
speak except when they dont.37
Some of the factors considered by the courts to deter-
mine if it is reasonably foreseeable that speech would
cause a substantial disruption are: whether the speech
was targeted toward the school,38 whether the speaker
intended for the speech to reach the school,39 whether
the speech was accessed at school,40 whether disrup-
tion actually occurred,41 whether the speaker encour-
aged student involvement,42 whether administrators had
to expend time and energy to deal with the speech,43
whether the speech was violent or threatening,44 and
whether there was a nexus between the speech and
the foreseeable disruption.45
The conflicting decisions in the courts
make it difficult, if not impossible,
for attorneys, students, parents,
teachers, and school administrators
to understand the scope of student
speech rightsin effect, leaving the
public to conclude that students have
a right to speak except when they
dont.
Few courts have addressed whether cyberbullying
rises to the level of a foreseeable substantial disruption.
In the Kowalski decision, the Fourth Circuit considered
cyberbullying of one student as sufficient:
The S.A.S.H. webpage functioned as a platform
for Kowalski and her friends to direct verbal attacks
towards classmate Shay N.The webpage contained
comments accusing Shay N. of having herpes and
being a slut, as well as photographs reinforcing
those defamatory accusations by depicting a sign
across her pelvic area, which stated, Warning:
Enter at your own risk and labeling her portrait
as that of a whore. One students posting dis-
missed any concern for Shay N.s reaction with
The Computer & Internet Lawyer 11
Social Media
a comment that said, screw her. This is not the
conduct and speech that our educational system is
required to tolerate 46
Of course, there are limitations to what school offi-
cials can do in their efforts to combat bullying cyber
speech. Officials and administrators cannot reach into
a childs home and control his/her actions there to the
same extent that it can control that child when he/
she participates in school sponsored activities.47 In J.S.
exrel. Snyder v. Blue Mountain School District, the princi-
pal asked another student to bring in a print out of an
offensive profile of him. In R.S. ex rel. S.S. v. Minnewaska
Area School District No. 2149, the school impermissibly
obtained the password to the students online accounts
and accessed the sites to view them. In both cases, the
courts held that there was no foreseeable disruption, and
that the school itself may have increased the chance a
disruption would occur. 48 School officials cannot con-
stitutionally reach out to discover, monitor, or punish
any type of out of school speech.49
Lack of a Supreme Court Decision
May Keep Qualified Immunity Alive
Of course, the lack of guidance from the Supreme
Court may give school districts more leeway in escaping
liability under a First Amendment challenge by invok-
ing qualified immunity. The application of the substan-
tial disruption test is highly fact-driven. There is, for
example, no magic number of students or classrooms
that must be affected by the speech.50 A substantial
disruption is more than a mild distraction or curiosity
created by the speech but need not rise to the level of
complete chaos.51 With such a wide range of scenar-
ios, many school officials seek qualified immunity when
brought into court by the parents of a punished student.
Under the doctrine of qualified immunity, school offi-
cials performing discretionary functions generally are
shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known.52 Qualified immunity involves a two-step
inquiry under which a court must consider (1) whether,
[t]aken in the light most favorable to the party asserting
the injury[,] the facts alleged show the officers con-
duct violated a constitutional right; and (2)whether
the right was clearly established.53 Some are granted
immunity, others not, based on whether student speech
rights had been clearly established. A Supreme Court
decision may have made those rights clearer. However,
the division of the courts on the application of Tinker
promotes the uncertainty of student speech rights. As
one court stated: If courts and legal scholars cannot
12 The Computer & Internet Lawyer
discern the contours of First Amendment protections
for student internet speech, then it is certainly unrea-
sonable to expect school administrators to predict
where the line between on and off-campus speech will
be drawn in this new digital era.54
So where does this leave little Johnny and his par-
ents? The court likely will consider the particular facts
of the case, and if a sufficient nexus is found to sub-
stantial disruption, the punishment will stand. Tinker is
still regarded as the leading case in regulation of student
speech. Cyberbullies may have finally met their down-
fall in a case decided 45 years ago.
Notes
1. Cyber Bullying Statistics, http://www.bullyingstatistics.org/content/
cyber-bullying-statistics.html, last visited July 8, 2014.
2. Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d
205, 216 (3d Cir. 2011).
3. Policies and Laws, http://www.stopbullying.gov/laws/, last visited
July 8, 2014.
4. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503
(1969).
5. Id. at 509 (emphasis added) (quotation marks omitted).
6. Id.
7. Id. at 508.
8. Id. at 506.
9. Id. at 508.
10. Id. at 509.
11. Bethel School Dist. v. Fraser, 478 U.S. 675, 684-685 (1986).
12. Id. at 678.
13. Id. at 682.
14. Id. at 681.
15. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); and
Morse v. Frederick, 551 U.S. 393 (2007).
16. Hazelwood, 484 U.S. at 262.
17. Id. at 272-273.
18. Morse, 551 U.S. at 410.
19. Id. at 397.
20. Id. at 403.
21. O.Z. v. Bd. of Trustees of Long Beach Unified Sch. Dist., 2008
WL 4396895, *1 (C.D. Cal. Sept. 9, 2008).
22. Id. at *3.
23. Id. at *9.
24. Bell v. Itawamba Cnty. Sch. Bd., 859 F. Supp. 2d 834, 836 (N.D.
Miss. 2012).
25. Id. at 840.
26. J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915,
930-931 (3d Cir. 2011); Layshock, 650 F.3d at 216.
27. Id. at 929.
Volume 32 Number 2 February 2015

28. Id. at 921.
29. D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 F.3d
754, 764 (8th Cir. 2011);Wynar v. Douglas Cnty. Sch. Dist., 728
F.3d 1062, 1064 (9th Cir. 2013).
30. S.J.W. ex rel. Wilson v. Lees Summit R-7 Sch. Dist., 696 F.3d
771, 773 (8th Cir. 2012).
31. J.C. ex rel. R.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp.
2d 1094, 1120 (C.D. Cal. 2010).
32. Kowalski v. Berkeley Cty Schools, 652 F.3d 565 (4th Cir. 2011),
cert denied, 132 S. Ct. 1095 (2012).
33. Id. at 567-569.
34. Id. at 572.
35. Id. at 574 (internal quotations omitted).
36. Id.
37. Margaret A. Hazel, Student Cyber-Speech After Kowalski v.
Berkeley County Schools, 63 S.C. L. Rev. 1081, 1088-1089
(2012), citing Petition for Writ of Certiorari at 31, Kowalski v.
Berkeley County Sch., 132 S. Ct. 1095 (2012) (No. 11-461),
2011 WL 4874091, at *31 (quoting Morse v. Frederick, 551 U.S.
393, 418 (2007)).
38. Doninger v. Niehoff, 642 F.3d 334, 348 (2d Cir. 2011); J.S., 650
F.3d at 930-933; Kowalski, 652 F.3d at 574; S.J.W., 696 F.3d at
778; Wynar v. Douglas Cnty. Sch. Dist., 728 F.3d 1062, 1071
(9th Cir. 2013); Evans v. Bayer, 684 F. Supp. 2d 1365, 1371 (S.D.
Fla. 2010).
39. Doninger, 642 F.3d at 348; J.S., 650 F.3d at 930; Bell., 859 F.
Supp. 2d at 837-838.
40. J.S., 650 F.3d at 921; Evans, 684 F. Supp. 2d at 1372; J.C., 711
F. Supp. 2d at 1099.
Volume 32 Number 2 February 2015
Social Media
41. Doninger, 642 F.3d at 349; Snyder., 650 F.3d at 929; S.J.W., 696
F.3d at 774; J.S., 859 F. Supp. 2d at 840; Mardis v. Hannibal
Pub. Sch. Dist., 684 F. Supp. 2d 1114, 1123 (E.D. Mo. 2010)
affd sub nom. D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist.
No. 60, 647 F.3d 754 (8th Cir. 2011); Nixon v. Hardin Cnty.
Bd. of Educ., 2013 WL 6843087 , *11 (W.D. Tenn. Dec. 27,
2013).
42. Layshock, 650 F.3d at 214; J.S., 650 F.3d at 929; Kowalski, 652
F.3d at 573; J.C., 711 F. Supp. 2d at 1109.
43. Doninger, 642 F.3d at 349; S.J.W., 696 F.3d at 774; J.C., 711 F.
Supp. 2d at 1114; Mardis, 684 F. Supp. 2d at 1123; Nixon, 2013
WL 6843087 at *11.
44. D.J.M., 647 F.3d at 762; Wynar, 728 F.3d at 1064; R.S., 894 F.
Supp. 2d at 1139; J.C., 711 F. Supp. 2d at 1118; Lack v. Kersey,
2012 WL 1080620 (N.D. Ga. Mar. 30, 2012); Mardis, 684 F.
Supp. 2d at 1123.
45. Layshock, 650 F.3d at 214; Kowalski, 652 F.3d at 573; Wynar, 728
F.3d at 1069.
46. Kowalski, 652 F.3d at 572-573.
47. Layshock, 650 F.3d at 216.
48. J.S., 650 F.3d at 932-933; R.S., 894 F. Supp. 2d at 1139-1140.
49. D.J.M., 647 F.3d at 765.
50. J.C., 711 F. Supp. 2d at 1110.
51. J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 569 Pa. 638, 807
A.2d 847, 868 (2002).
52. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
53. Saucier v. Katz, 533 U.S. 194, 201 (2001).
54. Doninger, 594 F.Supp.2d at 224.
The Computer & Internet Lawyer 13
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