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Abstract

Cyber bullying has generally been dealt with by the courts using one of two legal analyses: the “true threats” doctrine, or the Tinker substantial disruption test. This law review, the Cleveland State Law Review, recently published Anti-Cyber Bullying Statutes: Threat to Student Free Speech (referred to herein as “the Threat to Speech article”), which addressed these two theories, and argued that the current evolution of cyber bullying legislation simply goes too far. For example, Hayward states Anti-cyber bullying laws are the greatest threat to student speech because they seek to censor it anytime it occurs, using “substantial disruption” of school activities as justification and often based only on mere suspicion of potential disruption. The Threat to Speech article advocates greater protection of student speech. While we recognize that any regulation of speech by the state may raise First Amendment concerns, we are not so quick to conclude that cyber bullying regulations “chill student free speech.” Our analysis of the law leads us to the conclusion that school administrators have relatively broad discretion to regulate student speech, provided those regulations either serve legitimate pedagogical ends or protect the rights of other students and the school environment. Indeed, as we will demonstrate below, the evolution of the Supreme Court’s student free speech jurisprudence has followed the trend of granting more and more leeway to administrators. Contrary to the claims in the Threat to Speech article, in our opinion that leeway clearly extends to allowing regulation of speech which originates off campus but has a reasonable likelihood of making its way on campus. We also believe that, in addition to true threats and the Tinker substantial disruption standard described in the Threat to Speech article, school administrators may also regulate student speech consistent with the Court’s holding in Fraser—which set what we refer to as the “fundamental values standard” —and based on the fighting words doctrine.

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