E-Alert Case Updates

Internet Bullying Not Protected by the First Amendment

Kowalski v. Berkeley County Schools
No. 10-1098 (4th Cir. 2011)
by Imran O. Shaukat, Summer Associate
Semmes, Bowen & Semmes (www.semmes.com)

In this recent case, the United States Court of Appeals for the Fourth Circuit held that the First Amendment did not protect a student from school discipline for Internet bullying.

Here, Kara Kowalski, a senior at a public high school in Berkeley County, West Virginia (the “School”), created and posted to a website dedicated to ridiculing a fellow student. The School suspended Kowalski for five (5) days. Kowalski sued the School, contending that it violated her free speech and due process rights under the First and Fourteenth Amendments.

Specifically, Kowalski argued that the punishment was not justified because her speech: (1) did not occur during a school related activity; and (2) was private out-of-school speech. The School argued that the punishment was justified because the speech invited others to indulge in hateful conduct, which caused an in-school disruption. The United States District Court for the Northern District of West Virginia concluded that the School could legitimately take action against Kowalski for her speech.

On appeal, the United States Court of Appeals for the Fourth Circuit affirmed. Relying on Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), the Court recognized that the School had authority to discipline speech that: (1) materially and substantially interfered with the requirements of appropriate discipline in the operation of the school; and (2) collided with the rights of others. Id. at 513. Because Kowalski used the website to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the School’s environment, the trial court’s decision was correct.