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Cybersecurity Research
  1. I. NOW TRENDING: THE INCREASE IN SOCIAL MEDIA USE AND ITS CONSEQUENCES

After coming across sexually explicit messages between sixteen-yearold Channing Smith and another male student, a peer shared the images to their public Instagram and Snapchat stories.1 Hours later, Smith committed suicide.2 Smith’s story is unfortunately not an isolated event and illustrates the tragic consequences of cyberbullying and online hate speech.3 Although the two interacted in the same classroom, the incident occurred outside the classroom through the use of social media.4 This raises a question that public schools across the country are facing—could school officials have done anything about the posts, or must they helplessly stand by as students like Smith fall victim to cyberbullying?

It goes without saying that social media is a popular way for teens to communicate.5 In 2019, roughly two-thirds of teens had at least one active

1. Kat Tenbarge, A 16-Year-Old Died by Suicide After a Classmate Posted Explicit Messages Between Him and Another Boy on Social Media. Now, His Family Is Seeking Justice, INSIDER (Sept. 28, 2019, 11:09 PM), https://www.insider.com/tennessee-channing-smith-suicide-social-media-bullying-coffee-county-2019-9 [https://perma.cc/6CPX-JY3R] (explaining peer obtained private Facebook messages between Smith and another male).

2. Id. (noting Smith’s family believes these social media posts were “the driving force behind his suicide”). Before taking his life, Smith shared on Instagram that he was taking a break from social media and wrote, “I really hate how I can’t trust anyone because those I did were so fake. Bye . . . .” Id. (internal quotation marks omitted).

3. See Monica Anderson, A Majority of Teens Have Experienced Some Form of Cyberbullying, PEW RES. CTR. (Sept. 27, 2018), https://www.pewresearch.org/internet/2018/09/27/a-majority-of-teens-have-experienced-some-form-of-cyberbullying/ [https://perma.cc/3XKK-LM4T] (revealing survey results that show fifty-nine percent of teens have been cyberbullied).

4. See *Tenbarge, *supra note 1 (explaining Smith likely saw posts while home).

5. See Monica Anderson & JingJing Jiang, Teens, Social Media & Technology 2018, PEW RES. CTR. (May 31, 2018), https://www.pewresearch.org/internet/2018/05/31/teens-social-media-technology-2018/ [https://perma.cc/KF6TN5DB] (acknowledging ninety-five percent of teens have or have access to a smartphone). For purposes of this study, teens were considered ages thirteen to seventeen. See id. When teens were asked what social media platform they use the most, eighty-five percent said YouTube, seventy-two percent said Instagram, sixty-

social media profile, and eighty-nine percent reported being online “almost constantly” or “several times a day.”6 More alarming, however, is that over half reported that they have experienced some form of bullying or harassment while online.7

The COVID-19 pandemic highlighted these concerns, as it increased the world’s reliance on the internet.8 Once students began learning remotely and interacting with peers exclusively online, instances of cyberbullying and social media hate speech increased.9 An April 2020 report published by L1ght revealed that social media hate speech among students increased seventy percent since ceasing in-person learning.10 Overall, ninety percent of teens view this misuse of social media as a problem among their age group, and over fifty percent believe that teachers fail to adequately address the situation.11 Students may have various theories as to why their teachers do not intervene in online bullying or harassment.12 But in reality, confusion as to who has authority to intervene may cause the teachers’ hesitancy to interject.13

nine percent said Snapchat, fifty-one percent said Facebook, and thirty-two percent said Twitter. Id.

6. Id. (noting about nine out of ten teens go online multiple times per day); see also American Academy of Child and Adolescent Psychiatry, Social Media and Teens, AACAP.ORG, https://www.aacap.org/AACAP/Families_and_Youth/Facts_for_Families/FFF-Guide/Social-Media-and-Teens-100.aspx#:~:text=surveys%20show%20that%20ninety%20percent,mobile%20devices%20with%20internet%20capabilities [https://perma.cc/VB7P-DUCC] (last updated Mar. 2018) (explaining that, on average, teens are online for nine hours per day).

7. See Anderson, supra note 3 (emphasizing teens who spend more time online are more likely to experience online harassment). Offensive name-calling and rumor spreading were the most commonly reported forms of online harassment. *See id. *

8. See Lauren Barack, Navigating Cyberbullying More Difficult Amid COVID-19, but There Are Options, K-12 DIVE (Aug. 5, 2020), https://www.educationdive.com/news/navigating-cyberbullying-more-difficult-amid-covid-19-but-there-are-option/582771/ [https://perma.cc/5A2M-7GQN] (recognizing students’ potential increased vulnerability to cyberbullying due to COVID-19 distanced learning requirements).

9. See id. (stating “one of the first things parents and educators may want to do when a student is cyberbullied is get them offline,” but noting the impracticality of taking a student offline “when every one of a student’s friends is probably online, along with many of their classes”).

10. See id. (suggesting social distancing decreased physical bullying but increased cyberbullying). L1ght is a startup that “helps detect and filter abusive and toxic online content.” Id.

11.See Anderson, supra note 3 (“[M]ajorities of young people think key groups, such as teachers, social media companies and politicians are failing at tackling [the online harassment] issue.”). Fifty-eight percent of teenagers said that they had a negative view of how teachers handled incidents of cyberbullying or online harassment. *Id. *

12. See id.

13. See Lisa Smith-Butler, Walking the Regulatory Tightrope: Balancing Bullies’ Free Speech Rights Against the Rights of Victims to Be Let Alone When Regulating Off-Campus K12 Cyber-Speech, 37 NOVA L. REV. 243, 299–301 (2013) (explaining schools are faced

The U.S. Constitution’s First Amendment guarantees citizens the freedom of speech.14 This right extends to online speech as well as speech that is offensive, vulgar, or controversial.15 When students share questionable content on social media, schools struggle to balance this fundamental right with the need to maintain a safe academic environment.16 For example, an Ohio high school suspended several students in 2018 after criticizing the school’s superintendent on Twitter.17 Alternatively,

with “more questions than answers” when it comes to ability to regulate off campus speech that impacts on-campus activities). 14. See U.S. CONST. amend. I (“Congress shall make no law . . . abridging the freedom of speech . . . .”).

15. See *Packingham v. North Carolina, 137 S. Ct. 1730, 1732 (2017) (“A fundamental First Amendment principle is that all persons have access to places where they can speak and listen . . . . [O]ne of the most important places to exchange views is cyberspace, particularly social media . . . .); *see also Snyder v. Phelps, 563 U.S. 443, 458 (2011) (explaining government cannot restrict speech merely because it is offensive).

16. See Smith-Butler, supra note 13, at 299 (noting a principal is “damned if they do and damned if they don’t” when it comes to handling incidents of off campus cyberbullying that impact the on-campus environment (internal quotation marks omitted));* see also Effects of Bullying on Mental Health,* STOPBULLYING.GOV (Oct. 25, 2019), https://www.stopbullying.gov/blog/2019/10/25/effects-bullyingmental-health [https://perma.cc/6GB4-Q64X] (“Research suggests that children and youth who are bullied over time are more likely . . . to experience depression, anxiety, and low self-esteem. They also are more likely to be lonely and want to avoid school.”). Social media is relatively free from parental control and monitoring, which can result in posting students sharing questionable content. See Catherine E. Mendola, Big Brother as Parent: Using Surveillance to Patrol Students’ Internet Speech, 35 B.C. L.J. & SOC. JUST. 153, 155 (2015) (“Absent oversight, students are left to their own devices, able to make independent, potentially dangerous moves in their otherwise micromanaged worlds.”). While cyberbullying is one example of how a student may exercise poor judgment online, there are other ways students use social media in a negative manner. See id. at 156.

Unaware or simply indifferent to the repercussions of public postings on the Internet, students have unveiled violent plans against themselves and others, including bomb threats and school shootings. They have discussed eating disorders, underage drinking, sexual encounters, and drug use. Students have also criticized teachers and school administration. Regardless of a student’s motive—a cry for help, boredom, or peer pressure—a student’s out-of-school Internet speech often has an impact on his educational environment, his peers, and his community.{: .fs-2}

Id. (footnotes omitted).

17. See Emily Mills, Madison Students Get Detention After Criticizing Superintendent on Twitter, MANSFIELD NEWS J., https://www.mansfieldnewsjournal.com/story/ news/local/2018/09/14/madison-students-punished-after-criticizing-superintendent-twitter/1294713002/ [https://perma.cc/79GL-PELU] (last updated Sept. 14, 2018, 6:43 PM) (reporting that eight to ten students were punished for posting negative tweets about their superintendent). One student tweeted a message to the school’s superintendent, writing, “‘A leader wouldn’t let (their) kids be educated in 100-degree heat’ and ‘In my opinion, you should leave the district.’” Id. The student sent the tweet while in school, and school officials asked the student to delete the message. Id. Although the student initially complied, another tweet was posted later that read “standing my ground,” resulting in the three days of inschool detention. Id.

Princeton University recently declined to intervene when a student used a racial insult on Facebook.18

This inconsistent enforcement is prevalent not only in school districts but also in courts.19 In Tinker v. Des Moines Independent Community School District, 20 the Supreme Court clearly delineated students’ First Amendment rights in school.21 But the Court decided Tinker before the invention of modern social media and has not yet extended its precedent to online speech.22 This year, in B.L. ex rel. Levy v. Mahanoy Area School District, 23 the Third Circuit declined to extend the Tinker substantial disruption test (Tinker exception) to off-campus cyberspeech and concluded students retain full First Amendment rights outside of school.24 This marked the broadest circuit court opinion about off-campus student cyberspeech thus far.25 This broad-sweeping rationale differs from the Fourth Circuit’s sufficient nexus test, which is consistent with Tinker and properly addresses off-campus electronic speech cases.26

18. See Imani Mulrain et al., Princeton, It’s 2020: Stop Protecting Racial Slurs, DAILY PRINCETONIAN (Aug. 6, 2020, 6:46 PM), https://www.dailyprincetonian.com /article/2020/08/princeton-free-speech-anti-racism-stop-protecting-racial-slurs [https://perma.cc/VJ4A-FTZH] (stating Vice President for Campus Life Rochelle Calhoun emailed students to express that the student’s use of a racial slur did not violate University policy). Vice President Calhoun sent the message was in response to a petition drafted by students, which asked Princeton to hold a discrimination hearing. Id.

19. Compare Kowalski v. Berkeley Cty. Sch., 652 F.3d 565, 577 (4th Cir. 2011) (finding school could constitutionally suspend student who used MySpace page to bully peer while off campus), with Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 216 (3d Cir. 2011) (holding that school could not constitutionally punish student for parody MySpace page of school principal while off campus).

20. 393 U.S. 503 (1969). For a discussion of Tinker and Supreme Court precedent on student speech, see Section II.A.

21. See Tinker, 393 U.S. at 511 (“In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.”).

22. See id. at 506 (“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”); see also William Calve, Comment, The Amplified Need for Supreme Court Guidance on Student Speech Rights in the Digital Age, 48 ST. MARY’S L.J. 377, 392 (2016) (explaining Supreme Court has not said whether Tinker exception applies to offcampus student speech).

23. 964 F.3d 170 (2020).

24. See id. at 191. While the holding in Tinker consists of multiple parts, for the purposes of this Note, the phrase “Tinker exception” will hereinafter be used to refer to Tinker’s substantial disruption test. For a discussion of Tinker and its substantial disruption test, see infra notes 30–36 and accompanying text.

25. See B.L. ex rel. Levy, 964 F.3d at 196 (Ambro, J., concurring) (noting the Third Circuit is first circuit court to find that students retain full First Amendment rights while off campus).

26. See Kowalski v. Berkeley Cty. Sch., 652 F.3d 565, 572–73 (4th Cir. 2011) (applying Tinker’s sufficient nexus test). For a discussion of the Fourth Circuit’s approach, see infra notes 72–79 and accompanying text.

This Note analyzes the Third Circuit’s conclusion that the Tinker exception does not apply to off campus cyberspeech. Part II summarizes the relevant Supreme Court and Court of Appeals cases, emphasizing the different approaches to off campus electronic speech. Part III discusses the facts and procedural history of B.L. Part IV describes the Third Circuit’s holding in B.L. that students retain full First Amendment rights while using social media off campus. Part V provides a critical analysis of the Third Circuit’s holding and advocates that the Fourth Circuit’s sufficient nexus test offers a more appropriate solution for precedential and policy reasons. Part VI illustrates the impact of B.L. and the need for Supreme Court guidance.

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