free expression, cyberbullying and dignity...

FREE EXPRESSION, CYBERBULLYING AND DIGNITY IN SCHOOLS

M a r i u s H. Sm i t 1

N o r t h -We s t Un i v e r s i t y , So u t h Af r i c a

Freedom o f expression in schools is allowed insofar as it does not result in the substantive disruption of school discipline or unlawfully harms the reputation o f a person. The online publication o f defamatory messages, video clips or images has highlighted the tension between right to freedom o f expression and human dignity. Free expression is vitally important to ensure the advancement o f open and transparent communication o f beliefs, opinions and truths in fields such as the academy, science, art, literature, the press, religion, personal development and political accountability. Controversial ideas should be tolerated to an extent in a democracy, but what are the limits o f free expression? Dilemmas that arise in cases o f protest and free expression that substantially disrupt student discipline or harm a person’s dignity are considered. The discussion culminates with an analysis o f Le Roux v Dey where the South African Constitutional Court held that a manipulated photograph, which was published in cyberspace and at a school, is not protected free expression as it harmed the dignity o f the victims o f this school boy prank. This article also compares the South African jurisprudence with the copious body o f law on free student expression in the United States. It is contended that the principled approach in Le Roux with regard to harmful cyber communication is preferable to the US approach that grapples with the quagmire o f factual complexities in the education realm.

I Introduction

In democracies, such as South Africa and the United States of America, free expression in schools is allowed insofar as it does not result in the substantive disruption of school discipline or harm to other persons.1 However, one of the consequences of the present information era is that students have ready access to the internet which affords opportunities to communicate and send images or video clips from beyond the school without having to be in the physical presence of the recipient o f the message. This has given rise to a form of harassment known as cyberbullying which is defined as bullying using cell phones and the internet.2 The most worrisome aspect of cyberbullying is that crude, insulting, and, perhaps even threatening emails, text messages, manipulated images and photographs, website postings or video clips are sometimes conveyed under the guise of humor. As with traditional forms of bullying, this cyberbullying may have a devastating impact on the lives and psychological welfare of people.3

In view of the above, this article has three purposes: firstly, to discuss the nature and extent of the right to free expression of students in South African educational institutions; secondly, to consider the constitutional relief granted in the notable case of Le Roux v Dey, which involved high school students that committed cyberbullying, in view of the inherent tension between free expression and the right to human dignity; and thirdly, to briefly compare the jurisprudence on freedom of expression of United States with that of South Africa.

1Address for correspondence: Professor Marius H. Smit, Faculty Education Sciences, School of Education, North-West University, Potchefstroom Campus, South Africa. Email: [email protected]

1836-9030 Vol 18, No 2, 2013, pp. 61-71International J ournal of La w & E ducation 61

mailto:[email protected]

The South African Constitution4 protects the broader concept ‘freedom of expression’, which, in addition to speech, includes any manner of human expression. In principle every act by which a person attempts to express some emotion, belief, idea or grievance may qualify as constitutionally protected ‘expression’. The following examples of human activities can also be regarded as forms of expression:

• the creation, display, and dissemination of articles of artistic creativity, such as paintings, films, photographs, music and posters;

• symbolic acts such as flag burning, erecting a cross, wearing a particular hairstyle, wearing black armbands;

• the wearing of religious attire or t-shirts with messages and slogans; and• physical gestures such as signifying a crucifix, etcetera.

Freedom of expression is one strand of a web of rights and is closely related freedom of religion, belief and opinion, the right to human dignity, as well as the right to freedom of association, the right to vote and to stand for public office and the right to assembly. These fundamental rights implicitly recognise of the ability to form and express opinions, whether individually or collectively, even where those views are controversial.5 The corollary of the freedom of expression and its related rights is tolerance by society of different views, opinions and ideas. Tolerance, of course, does not require approbation of a particular view.

III Freedom of Expression and Dem ocracy

Over the centuries the struggle for equal political rights and democracy has been closely allied to the freedom to express philosophical and political ideas without fear for reprisal or censorship from the state. Similarly, the scientific and cultural advances that have been made are attributable to the freedom to question and contest conventional notions about the truth. Many of the cultural advancements in any society would not have occurred if it were not for the right to freely expression ideas, belief and emotions. Democracy, as a condition of a dynamic and progressive society, requires freedom of expression for the following reasons:

1. Scientific, artistic or cultural progress would be impossible if people were not free to express their ideas and discoveries. Currie and De Waal regard this rationale for free expression as the ‘quest for truth’;6

2. Expression is an essential means of fulfilment of the human personality, because to express oneself is a natural part of what it means to be human;

3. The free exchange of ideas and the dissemination of information is essential to inform the citizenry and electorate in a democracy. For people to make political choices they must have access to news, information and critical viewpoint;

4. An inherent aspect of participative democracy is accountability of representatives, leaders and decision-makers. In order to hold the responsible persons accountable, it is essential that the transparent reasons for decisions and the information about the execution of public function would be available. Without freedom of expression a government and society will not be able to function in an open, transparent and accountable manner;

5. Freedom of expression is closely related to the freedom of political rights as explained in the matter of South African National Defense Force Union v Minister o f Defense.7

II N ature and Content of the Right to Freedom of Expression

62 Marius H. Sm it

In Le Roux v Dey the Constitutional Court affirmed the importance of freedom of expression in South Africa by stating that ‘the free and open exchange of ideas is no less important than it is in the United States of America’.8 Bearing South Africa’s troubled history in mind, one must remember that students were not encouraged to think critically and were taught to accept authority without question in the authoritarian political climate of Apartheid. 9 The present state democratisation in South Africa has been likened to a teenager going through a rebellious growth stage of puberty10 and therefore ‘the open market o f ideas is all the more important’11 in order to enable the ‘quest for truth’12 by means of scientific, artistic or cultural expression of ideas and discoveries; to provide access to news, information and critical viewpoints inform the citizenry and electorate; to allow the free expression of the human personality as a natural part of being human; and to ensure accountability, responsiveness, and transparent decision-making.

IV Lim itation of the Right to Freedom of Expression

A debate about an individual’s fundamental right freedom of expression versus the fundamental right to human dignity brings inherent tension between democracy and liberalism to the fore. Briefly, it should be noted, that the right to freedom of expression is not absolute,13 as it may, under appropriate circumstances, firstly be limited by the fundamental rights of others; secondly, by the restriction of the scope and meaning of a fundamental right by virtue of the definitional demarcation or specific internal modifiers o f the right, and in terms of the general limitation provision, section 36 of the Constitution.

Section 36 of the Constitution of South Africa reads as follows:

36. (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including -(a) the nature of the right;(b) the importance of the purpose of the limitation;(c) the nature and extent of the limitation;(d) the relation between the limitation and purpose;(e) less restrictive means to achieve the same purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

In essence the application of section 36 to dilemmas involving the possible limitation of fundamental rights involves a balancing process where the reasonability and justifiability of the limitation is weighed against the objective of the law. In other words, in instances involving free expression, the reasonableness and importance of protecting others from harm or preventing injury to a person’s dignity, would be balanced against the nature and extent of limiting free expression. The essence of this proportionality assessment is to determine whether the ‘benefit to others’ seem to outweigh the ‘cost to the right-holder’.14

The conditions of use of the right of freedom of expression is demarcated by section 16(2) which provides that the right does not extend to propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. This means that the scope and meaning of the right to freedom of expression is limited by definition as certain modes of expression are excluded from constitutional protection.

Free Expression, Cyberbullying and D ignity in Schools 63

South African courts have been called on to apply constitutional standards to determine the limits of freedom of expression in the education context concerning, inter alia, physical symbols (Antonie15, Pillay16) personal expression (Williams17), publication of untrue statements in the media (Hamata18) student protests (Ngubo19) and student-generated electronic cyber expression created outside the school setting but having an effect on school discipline (Le Roux20).

Section 10 of the Constitution states that ‘Everyone has an inherent dignity and the right to have their dignity respected and protected’.21 At times the fundamental rights to dignity and freedom of expression come into conflict with one another. In the context of a school a further complicating factor is that the unlimited exercise of the right of freedom to expression can easily hamper student discipline and undermine the educational purpose of schools.

VI Substantive D isruption of D iscipline

In Antonie v Governing Body, the Settlers High School and Head, Western Cape Education Department11 the School Governing Body suspended a student from school for wearing dreadlocks in contravention of the school’s uniform dress code. The student, Antonie, was a Rastafarian and wore dreadlocks as part of her religious practice. The student’s parents supported her conduct. The matter was taken on review and the High Court held that the infringement of the school’s uniform dress code was not a serious misconduct and did not warrant suspension. The court found that the suspension could not only have a negative effect on her normal development and her future career, but could also submerge her personality, dignity and self-esteem. On the facts the court found that the wearing of dreadlocks by the girl did not cause a substantial disruption of school discipline, to the extent that it impinged upon other students’ right to basic education. The court ruled in favour of the Antonie and the suspension was set aside.

In M EC fo r Education, Kwa-Zulu-Natal v Pillay, the Constitutional Court also upheld the right to freedom of expression of a student at Durban Girls High School, to wear a gold nose-stud to school, in keeping with her South Indian family traditions and culture.23 Reading between the lines it is apparent the main drive force behind the insistence on wearing the nose-stud to school was the student’s mother. The student’s main argument was based on the right to equality and the constitutional prohibition against unfair discrimination based on culture and religion. The Constitutional Court found that the norm embodied by the school’s code was not neutral, but that it enforced mainstream and historically privileged forms of adornment, such as ear studs which also involve the piercing of a body part, at the expense of minority and historically excluded forms.24 The court reiterated that this case was not about the constitutionality of school uniforms. It was about granting religious and cultural exemptions to an existing uniform as symbolic expression. Langa CJ was of the opinion that school uniforms served admirable purposes but that these purposes would not be undermined by allowing for certain exemptions. The school did not present any evidence to show that a student who is granted an exemption from the provisions of the dress code will be any less disciplined or that it will negatively affect the discipline of others. The court thus held that the student’s right to freedom of expression had been unjustifiably limited because her wearing of a nose-stud posed no risk of substantial disruption to school activities and would not impose an undue burden on the school. Langa CJ therefore confirmed that the refusal to allow Pillay to wear the nose-stud amounted to unfair discrimination which unconstitutionally limited the student’s right to express her religion and culture which is central to the right to freedom of expression.

V Freedom of Expression in the South African Education Context

64 Marius H. Sm it

In both the aforementioned cases the courts applied the standard first articulated in the American case of Tinker v Des Moines Independent Community School District25 that a student’s right to free expression may only be limited if ‘substantial disruption of school discipline’ could or would result from the student’s conduct. To put it differently, the authority of the educators and school governing bodies to set rules to establish an orderly and disciplined environment may be limited to allow free expression insofar as the school’s discipline is not substantially disrupted. It is interesting to note that although in both Antonie and Pillay the rights o f parents to direct the education and religious or cultural upbringing of their children played an important role in the perpetuating each student’s adamant disregard for the school rules, the courts dealt with the merits of the issues by considering the constitutional rights of the students (i.e. the children) and not the rights o f the parents.

VII Parents Attem pt to Circum vent School D iscipline and a Sch o o l’sDuty to Educate

In Western Cape Residents’ Association obo Williams v Parow High School16 the parents (with the support o f their friends in the Resident’s Association) applied for an urgent interdict to compel the school to allow a grade 12 learner, Williams, to attend a matric farewell-function.27 The school had refused permission because of her continued ill-discipline during the course of the year. The court considered arguments that the student’s dignity, equality and freedom of expression had been infringed by the school’s refusal, but found that the attendance of a matric farewell-function was an extra-curricular social activity and, as such, was a privilege and could not be claimed as an enforceable right. Also, the court considered the interests of the school, the other students and the applicant and determined on balance that:

Two of the important lessons that a school must teach its learners are discipline and respect for authority. The granting of privilege as a reward for good behaviour is one tool that may be used to teach such lessons. The withholding of such privilege can therefore not be claimed as an infringement of a right to equality or to dignity. Indeed, the granting of the privilege in the absence of its having been earned may well constitute an infringement on the rights to equality and dignity of those who have merited the privilege. The right to freedom of expression of course, does not equate to a right to be ill-disciplined or rude.The system of rewards for good behaviour permeates all walks of life and to learn the system at an early age can only benefit the learner later on in his or her life. I see nothing of constitutional concern in the use of such a system in schools.28

The court thus held that in view of the school’s duty to teach children discipline and respect for authority, the withholding of a privilege in lieu of bad behavior is not an infringement on the rights to dignity, equality or freedom of expression. By excluding the interests of the parents in the matters of Antonie, Pillay and Williams, the courts implicitly affirmed the individual rights of the students by balancing it with the duty of the school authorities to maintain order and discipline. This sensible approach by the courts has undergirded the authority of the school authorities to maintain order and discipline in spite of attempts by the parents of the student to overlook ill- discipline or to attempt to circumvent the resultant punishment.

VIII Untruthful Publication - Suspension of a Student Affirmed

In Hamata v Chairperson, Peninsula Technikon29 a journalism student at the Peninsula Technikon was suspended after the publication of the article ‘Sex for Sale on Campus’ in the Mail


and Guardian newspaper during September 1998. The article refers to prostitution and conveyed the message in no uncertain terms, that the practice of prostitution on the Technikon’s campus was prevalent and that the authorities of the Technikon acquiesced in this practice. On review of the disciplinary proceedings the High Court held that although untrue information could at times be protected under the right to freedom of expression this false dissemination could be limited when balanced against of the constitutional rights. The court held that countervailing interests of the educational institution and of victims harmed by untrue statements would more easily override untrue than true expression. The court upheld the student’s suspension and affirmed that the harmful exercise of the freedom of expression was justifiably limited in this instance.

IX Harm ful Effects of Student Protests and Harassm ent

In Acting Superintendent-General o f KwaZulu-Natal v Ngubo 30 police evicted college students who slept on the property and harassed college staff while protesting. The students contested the legality of this action and applied for a court review of the provincial Head of Education’s decision to have protesting students forcibly evicted. The court held that the freedom of expression of the students had been justifiably limited as ‘freedom of expression does not extend to justify harassment ...’ This affirms that direct, face-to-face expression of protests may be duly limited if the safety of other persons is infringed or the manner of protesting is unduly harmful to the educational institution.

X Cyberbullying and Defam ation

The case of Le Roux v Dey 31 is the only court ruling by South African courts involving students’ use of cyber communication. In this case Le Roux (1st Defendant) had created a computer image at his home in which the faces of the principal and deputy principal of his school were super-imposed on an image of two naked gay bodybuilders sitting in a sexually suggestive posture. The school crests were super-imposed over the genital areas of the two men in the image. Apparently satisfied and amused by his own handiwork, Le Roux shared his achievement with a close friend and sent it to his friend’s cell phone via his computer. This friend (2nd Defendant) then reproduced the image and circulated it to many other students at the high school. Eventually one of the students (3rd Defendant) at the school made photostat copies and affixed the image to the school’s notice board. What thus started out as defamatory conduct utilising cyber communication (i.e. sending the image via cell phones and emails) at the students’ homes then degenerated to bullying behavior at school. Understandably, the principal and deputy principal were embarrassed and felt particularly aggrieved by this. After an internal hearing by the School Governing Body the students were disciplined and their punishments inter alia included the performance of community service at the school and the Pretoria Zoo. However, despite the disciplinary steps against the students, the tag ‘Dey is gay’ was heard in the corridors of the school which perpetuated untrue rumours and continued to infringe the deputy principal’s dignity. As a result o f continued misrepresentation of the truth, innuendos and subtle harassment by more students, the deputy principal eventually felt compelled to institute legal action and claim damages for defamation. Defamation is per definition the wrongful infringement and harm of a person’s good name and reputation. The Supreme Court o f Appeal upheld the decision of the trial court to award damages and legal costs to the plaintiff (Dey).

The matter eventually reached the Constitutional Court which assessed whether the publication was defamatory through the prism of the Constitution. In this case the process involved

66 Marius H. Sm it

the balancing of the rights to dignity and privacy on the one hand, with the rights freedom of expression and the rights of children, on the other. Its focus is the protection of the constitutional rights to dignity and privacy of any person.

The schoolboys defended their conduct by contending that the picture was not defamatory as it was only a schoolboy prank. Also in defense of the actions of the students the Freedom of Expression Institute (1st amicus curiae) stressed the rights o f children to freedom of satirical expression. The court did not accept the defendants’ defense that they lacked animus iniurandi or intent. Defamation does not require that the schoolboys were motivated by malice or ill-will. The court also accepted the evidence of the plaintiff and of another school principal that respect for teachers is an essential precondition for discipline, that discipline in turn is an essential requirement for the proper functioning of the school system, and that there is a growing tendency in South African schools to challenge the status and authority of teachers with a concomitant breakdown in discipline.

Brand J, on behalf of the majority of the Constitutional Court, considered whether the humour of the manipulated image was excusable, but held that a jest is not legitimate, if the joke would be insulting, offensive or degrading to another. The test is whether it is a joke in which the subject cannot share because it is hurtful and defamatory to the subject. A statement or idea which raises a laugh is defamatory when there is an element of contumelia in the joke, that is, when it is insulting or degrading to the butt of the joke. Brand J found that a schoolchild called as a witness for the schoolboys came to exactly the same conclusion; that even though it could be called a schoolboy prank, it humiliated and demeaned the victims of the prank. The court held that the question is not so much whether the attempt at a joke is objectively funny or not. Nor is it o f any real consequence whether we regard the joke as unsavoury or whether we think that those who may laugh at it would be acting improperly. The real question is whether the reasonable observer - perhaps, while laughing - will understand the joke as belittling the victim; as making the victim look foolish and unworthy of respect; or as exposing the victim to ridicule and contempt. If the joke achieves that purpose, then it is defamatory, even when it is hilariously funny to everyone, apart from the victim.

The court thus confirmed that the manipulated computer image was defamatory and ordered that the students had to apologise and to pay compensation to the plaintiff. It follows therefore, that defamatory conduct that infringes the dignity of an educator, a student or anyone for that matter, whether it takes to form of direct face-tot-face insults or originates from a cyber source outside the school, is not only contrary to South African common law but also to the Constitution because it infringes a person’s dignity.

The Constitutional Court thus set a subjective test as the high standard by which the defamatory consequences of insulting or degrading action or content should be measured. In Le Roux the court did not apply the objective standard of ‘substantive disruption of school discipline’ (the Tinker standard)32 as the measuring yardstick to determine the constitutionality of the students’ conduct. The court applied a subjective standard in Le Roux that determines whether a reasonable observer would understand that the expression (in whatever format) infringes the dignity of the victim. Logically, therefore, it matters not whether the injurious or harmful expression originated in the school or whether it had a deleterious effect on school discipline. The effect on a victim’s dignity is the determining factor.

The importance of the Le Roux decision is that the Constitutional Court affirmed that the right to freedom of expression does not make allowance for defamatory conduct. In other words, it is not constitutional to exercise the right to free expression in a manner that defames another


person. This implies, in essence, that the fundamental right to human dignity weighs heavier than the fundamental right to freedom of expression and that the usual defenses in a defamation suit might not hold water.

XI Dam ages Aw arded for Personal In ju ry Due to Bullying

The Australian case of Cox v State o f New South Wales33 is a noteworthy case for states with Common Law legal systems to bear in mind, as it affirms that in addition to damages that may be claimed in a civil suit for defamation, a person might also succeed in claiming damages for personal injury suffered as a result of bullying. Cox, a student, claimed damages for personal injury which he suffered as a consequence of the breach of a duty of care owed to him by the government school and officials. The severe emotional, psychological and psychiatric disorder from which Cox suffered was due to frequent physical bullying (which included assaults, strangulation, choking and harassment) at the hands of an older student. The court reiterated that the schoolmaster, educators, employees of the school and the school authorities owed a duty of care to Cox to take precautionary steps to prevent bullying in whatever form and to ensure his safety as a reasonable parent would in the circumstances. The court found on the balance of evidence that the school authorities had neglected to take adequate steps to protect Cox from the effects o f bullying and awarded damages to the amount of $220 000 and costs in favour of the plaintiff. These legal principles apply to other forms of bullying, such as verbal and cyberbullying, as well. Therefore, the two areas of tort law, i.e. defamation and negligence, have implications for cyberbullying in the education context.

XII Com paring Jurisprudence of the USA and South Africa

The final purpose of this paper is to compare jurisprudence of the USA and South Africa on freedom of expression and cyberbullying. Both these countries have Common Law legal systems, to a greater or lesser extent, and a fruitful comparison in the jurisprudential developments may therefore be made.

The wealth of jurisprudence in the USA on the issue of protection of free speech and cyber communication has highlighted six factors that affect the authority of schools to punish students: the place or origin of the expression (on or off school premises),34 the place of access to the expression (on or off school premises),35 the person(s) who accesses the expression (staff or other students),36 the content of the electronic expression,37 the impact of the expression on the school38 and the authority of schools (or lack thereof) to punish students for off campus cyber as it interacts with the parents’ right to direct the education of their children.39 In essence, the courts in the USA have limited free speech rights of students and have enabled school authorities to discipline students for crude, offensive or harmful cyber communication if it has caused ‘substantial or significant disruption of school discipline’40 or if the school had a responsibility to instill ‘the habits and manners of civility’41 and the school’s actions to discipline a student were ‘reasonably related to legitimate pedagogical concerns’.42 The USA courts have been loath to allow the state (in the guise of public school authorities) to limit student free expression by reaching into a child’s home. In Layshock v. Heritage School District 43 the Third circuit found the school district’s claim that it could punish the student ‘because his speech has reached inside the school’ untenable. As the court allowed the webpage which had been created off-campus and found insufficient nexus to the school, as the webpage ‘was deliberately designed to take place beyond the schoolhouse gate’. The substantive question whether the disciplinary reach of school

68 Marius H. Sm it

officials into the home violates the constitutional rights of the parents to direct the education of their children has only been addressed in J.S. v Blue Mountain School District (Blue Mountain)44 where the en banc panel of the Third Circuit, found that a student’s free speech rights outside the school context were coextensive with the rights of adults.

In Le Roux the South African Constitutional Court circumvented all the factual complexities of freedom of expression of students in the education context, with which the USA court have grappled, by simply focusing on the impact of the expression and effect that the communication had on the victim’s dignity. This principled approach enabled the Constitutional Court to set a high and encompassing standard in Le Roux that limits all expression, whether it originated in or outside the school gate, if a reasonable observer would understand that the expression (in whatever format) subjectively infringes the dignity of the victim.

The contention of this paper is that the Le Roux-standard is preferable, firstly, because it maintains the legal principle that freedom of expression (in whatever context) should not be allowed to harm a person unreasonably or to infringe a person’s dignity; secondly, because it enables the application of pedagogical principles that educates all people (including students) in manners of civility and habits of tolerance; thirdly, because the defenses for defamation receive less prominence in relation to a person’s dignity. Lastly, the Le Roux-standard is to be preferred because it is reasonably practicable for students, educators and parents to discern whether another person’s dignity might in likelihood be infringed by the expression or communication.

XIII Co n clu sio n: South African Jurisprudence

The South African courts have adjudicated right to freedom of expression in the school or education context by considering the nature of the idea or message (e.g. symbolic, cultural, religious, words, innuendo’s, images etc.), the manner of communication or expression (e.g. face-to-face or indirect) and the content of the expression. The cases that dealt with freedom of expression and student discipline in the school or educational context (Antonie, Pillay, Hamata, Ngubo and Le Roux) can be categorised into two factual variants namely, instances where the expressions have not been harmful, and instances where the expressions have been harmful to individuals, other persons or the educational institutions. In essence, therefore, the South African courts have firstly applied the Tinker-standard (albeit without naming it as such) that free expression is allowed in the absence of substantive disruption of student discipline or harm to others, and secondly, the Le Roux-standard and subjective test where the expression has subjectively infringed a person’s dignity or has caused harm to others or the school. It is contended that the Le Roux-standard is preferable to the tests devised by courts in the USA as it is based on a principled and practicable approach to addressing the scourge of defamatory insults and cyberbullying. Although the law is not settled in all respects, the South African courts have upheld the limitation of the students’ right to free expression in order to protect the safety of persons, and the dignity of individuals or educational institutions.

Keywords: freedom of expression; cyberbullying; dignity; defamation; Le Roux v Dey; school discipline; democracy.

Endnotes

1 MEC for Education, KwaZulu-Natal v Pillay 2008 1 SA 474 (CC) [30] (Langa CJ); Tinker v Des Moines Independent Community School District 393 (US) 503 (1969) (Thomas J).


2 Peter K. Smith, Jess Mahdavi, Manuel Carvalho, Sonja Fisher, Shanette Russell & Neil Tippett ‘Cyberbullying: its nature and impact in secondary school pupils.’ (2008) 49(4) Journal o f Child Psychology and Psychiatry, 376.

3 Ibid. 385.4 Section 16 of the South African Bill of Rights provides that:

16. (1) Everyone has the right to freedom of expression, which includes(a) freedom of the press and other media;(b) freedom to receive or impart information or ideas;(c) freedom of artistic creativity; and(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to(a) propaganda for war;(b) enticement of imminent violence; or(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that

constitutes incitement to cause harm.5 1999(4) SA 469 (CC) [8] (O’Regan J).6 Ian Currie & Johan de Waal The New Constitutional and Administrative Law (Juta Publishers, 2001)

65.7 1999(4) SA 469 (CC) [8] (O’Regan J).8 Le Roux v Dey (Freedom o f Expression Institute & Restorative Justice Cente as amici curiae) JOL

27031 (CC) (2011) [47] (Brand J).9 Willem van Vollenhoven, Learners understanding of their right to freedom of expression in South

Africa (PhD thesis, University of Pretoria, 2006) 70.10 Marius Smit & Izak Oosthuizen ‘Improving school governance through deliberative democracy and

the law.’ (2011) 40(1) South African Journal o f Education. 55.11 S vMamabolo (E.TV& others intervening) 2001 (3) SA 409 (CC) [43] (Kriegler J).12 Currie & De Waal, above n 6, 310.13 De Reuck v Director o f Public Prosecutions 2003 (3) SA 389 (W) [89B] (Epstein J).14 Marius Smit ‘Balancing rights in education: applying the proportionality test.’ActaAcademica. (2008)

40(3), 210-233.15 Antonie v Governing Body, the Settlers High School and Head, Western Cape Education Department

2000 (4) SA 738 (WC) (Van Zyl J).16 MEC for Education, Kwazulu-Natal and others v Pillay 2008 (1) SA 474 (CC) (Langa CJ).17 Western Cape Residents’ Association obo Williams and Another v Parow High School 2006 (3) SA

542 (C) (Mitchel AJ).18 Hamata and Another v Chairperson, Peninsula Technikon 2000 (4) SA 621 (C) (Hlophe JP).19 Acting Superintendent-General o f KwaZulu-Natal v Ngubo 1996 (3) BCLR 369 (N) (Hurt J).20 Le Roux v Dey (Freedom o f Expression Institute & Restorative Justice Cente as amici curiae) JOL

27031 (CC) (2011) [47] (Brand J).21 §10 of the Constitution of the Republic of South Africa, Act 108 of 1996.22 2000 (4) SA 738 (WC) (Van Zyl J).23 2008 (1) SA 474 (CC) (Langa CJ).24 Ibid, [44].25 393 U.S. 503 (1969) (Thomas J).26 2006 (3) SA 542 (C) (Mitchell AJ).27 Similar to a prom dance in the USA context.28 Western Cape Residents’ Association obo Williams and Another v Parow High School 2006 (3) SA

(C), 545 [B-C] (Mitchel AJ).29 2000 (4) SA 621 (C).30 1996 (3) BCLR 369 (N).31 Le Roux v Dey (Freedom o f Expression Institute & Restorative Justice Centre as amici curiae) JOL

27031 (CC) (2011) (Brand J).

70 Marius H. Sm it

32 Tinker v Des Moines Independent Community School District, 393 US 503 (1969).33 [2007] NSWSC 471 (Simpson J).34 Bethel School District v Fraser 478 U.S. 675 (1986); Hazelwood School District v. Kuhlmeier 484 U.S.

260 (1988); Morse v. Frederick 551 U.S. 393 (2007).35 J.S. v Bethlehem Area School District 807 A.2d 847 [170 Ed. Law Rep. 302] (Pa. 2002).36 Mahaffey v Aldrich 236 F.Supp.2d 779 (E.D. Mich. 2002).37 Coy v Board o f Education ofthe North Canton City Schools205 F.Supp.2d 791 [166 Ed. Law Rep. 535]

(N.D. Ohio 2002).38 Tinker v Des Moines Independent Community School District 393 U.S. 503 (1969).39 J.S. v Bethlehem Area School District 807 A.2d 847 [170 Ed. Law Rep. 302] (Pa. 2002).40 The Tinker-standard.41 The Fraser-standard.42 The Kuhlmeier-standard.43 F.3d (3d Cir. 2011) (en banc), a ff’ing 593 F.3d 249 [253 Ed. Law Rep. 31] (3d Cir. 2010).44 Above n 35.


free expression, cyberbullying and dignity...

Documents