Legislation targets 'cyberbullies'
But student press advocates worry new laws could inhibit student expression
State lawmakers across the country are introducing bills intended to curtail bullying in schools via text messaging and the Internet, but critics charge that the legislation could trample students’ rights to free expression.
Bills that mandate public schools create policies against so-called “cyberbullying” have been considered by legislatures in Arkansas, Florida, Minnesota, Nebraska, Oregon and Washington. Laws have already been enacted in South Carolina and Iowa.
As described in the bills, instances of cyberbullying can range from posting offensive content on personal Web sites to sending harassing e-mails or text messages via cellular phones.
Proponents of the measures say they are necessary to protect children’s emotional well-being, but opponents remain wary that vague language in the legislation could limit legitimate student expression.
Cabell Gathman, a researcher at the Massachusetts Institute of Technology who specializes in social networking sites such as MySpace and Facebook, said most cyberbullying on the Web arises when users publish inflammatory comments on other users’ profiles.
“You can delete things [from your profile], but you can only delete it when you know it’s there,” Gathman said. “There’s no screening system that makes [posts] invisible.”
Robin Kowalski, a professor of psychology at Clemson University who has researched cyberbullying’s effects on children, said in a survey she conducted with 3,500 middle school students, 18 percent of respondents said they had been victims of cyberbullying.
Like traditional face-to-face bullying, cyberbullying can have a broad range of effects, from minor depression to severe drops in class grades — even remote instances of suicide, Kowalski said.
“The damage being done to these kids who are being cyberbullied is just unbelievable,” said Kowalski.
Because it is a new phenomenon, the long-term effects of cyberbullying on children are unknown, Kowalski said.
“We don’t know the psychological effects that cyberbullying can have,” Kowalksi said. “We think that they can have the same effects as traditional bullying.”
Henry Jenkins, director of comparative media studies at the Massachusetts Institute of Technology, said the indirect nature of the MySpace and other social networking Web sites makes it easier for people to post derogatory comments online.
“MySpace can be like the local locker room, on occasion. The kid who is isolated can be picked on [by several people] all at once,” Jenkin said. “If you can’t see that pain on their face, you may push farther and deeper.”
Critics of cyberbullying legislation say that dealing with bullies is part of growing up.
Bennett Haselton, founder of Peacefire, a youth free speech advocacy group, said students have encountered bullies “since people have been passing notes in schools.”
“Now it’s in a form that is visible to administrators, but that doesn’t mean that kids haven’t been dealing with it for a long time,” he said.
Mark Goodman, executive director of the Student Press Law Center, said that children need to learn how to handle criticism from their peers.
“What some people refer to as bullying is simply criticism, and we do our children no favors if we protect them from the criticism that is a part of life in this world,” Goodman said. “Speech that’s harsh or critical has to be protected by the First Amendment whether it’s being expressed by a 16 year old or a 60 year old.”
Kowalski said while she supports policies that prohibit all forms of bullying, schools need to remain cognizant of student rights.
“You kind of have got to balance First Amendment rights, which I don’t want to discount in any way with the mental health of kids in the school,” she said.
Free speech or harassment?
Justin Layshock has experienced the consequences of being accused of cyberbullying firsthand.
But rather than being charged with victimizing another student during his senior year at Hickory High School in Hermitage, Pa., Layshock was punished in December 2005 for creating a parody of principal Eric Trosch on MySpace, a popular social networking Web site.
“Any person with brain function that’s not, like, a small child, knows that this wasn’t done [by Trosch] himself,” Layshock said.
Layshock’s situation shows that cyberbullying does not always involve student-on-student intimidation.
The MySpace page included a photo of Trosch and included short responses to an online survey, which Trosch alleged has defamed his reputation. He said he created the page on a computer at his grandmother’s house because he “was bored and just joking around.”
Other students created different false profiles of Trosch on MySpace at the time, but Layshock said he was the only student who admitted to creating one of the pages, and felt pressured into taking responsibility.
“I think they just wanted someone’s head on the platter to make an example,” he said. “[The administration] had the same amount of proof [about the others] as they did with me, but [the other students] didn’t get caught because they didn’t admit to it,”
Layshock was given a 10-day suspension from school after admitting to creating the page and spent two months in alternative classes. He and his parents have sued the school district for violating his First Amendment free speech rights, excessive punishment and interfering with his parents’ right to judge how to raise their son.
Today, Layshock has graduated and currently studies at St. John’s University in New York. But new legal matters surrounding the phony page continue to unfold.
In April 2007, Trosch filed a lawsuit against Layshock and former students Thomas Cooper, and brothers Christopher and Brendan Gephart for creating different false MySpace pages that he claims defamed his reputation.
If he could go back, Layshock said he would not have participated at all.
“It’s caused a lot of trouble for me and my family, a lot of unneeded stress,” he said. “If [others] want to do something like this, be ready for the consequences.”
What divides harassment from protected free expression by students on the Internet remains uncertain. States have been aiming to make that definition more clear.
In general, language in anti-cyberbullying legislation would call for school boards to draft policies against electronic harassment that involves students and school employees — on school grounds or during school activities.
Governors in South Carolina and Iowa have already signed laws that prohibit cyberbullying in schools.
Similar to antibullying legislation in states such as Washington, Oregon and Arkansas, the Iowa law mandates school districts to adopt an policy that prohibits school employees, volunteers and students from “harassment and bullying in schools, on school property, and at any school function or school-sponsored activity regardless of its location.”
Looking closer at the Iowa statute, harassment and bullying includes “any electronic, written, verbal or physical act” that creates a hostile school environment. It defines “electronic” as communication that “includes but is not limited to communication via electronic mail, Internet-based communications, pager service, cell phones and electronic text messaging.”
Layshock said administrators should be able to govern what goes on at schools.
“I think that if [bullying is] done at school using school computers, of course [administrators] should have some right to govern what’s going on there,” Layshock said. “But if it’s done outside of school I don’t see what kind of right they have on it.”
Most of the bills do not cover bullying that occurs off of school property or outside of school, except in Minnesota, where the bill simply reads that school policies “shall address intimidation and bullying in all forms, including, but not limited to, electronic forms and forms involving Internet use.” The bill passed the Minnesota Senate and has moved to the state’s House of Representatives.
In Florida, a bill under consideration states that school cyberbullying policies must be approved by the state Department of Education as prerequisites to receive state funding. The bill was approved by the Florida House of Representatives in April, but did not pass through the state Senate before the legislative session ended.
But schools have to walk a tightrope between stepping on student rights and protecting bullied students, said Thomas Hutton, staff attorney with the National School Boards Association.
“Lots of forms of harassment are in the forms of expression — so school districts have to evaluate where you draw those lines to avoid encroaching on expression you just don’t like — but then they have to consider the well being of all the students under their care,” Hutton said.
Jenkins said many schools already prohibit access to social networking sites on school computers, but he says sites such as MySpace.com and Facebook.com “are a place where young people learn how to network.”
“It’s much better to teach kids how to use them in a rational way rather than lock them away,” Jenkins said.
Goodman said that unlike harassment laws, which have “legal ways” to define harassment language, cyberbullying bills leave much to be interpreted and could step on student rights.
“I don’t think many people would oppose the idea of legal limitations on actual harassments,” Goodman said, “but the difficulty with these proposals is the language is vague enough that it’s not entirely clear what would be covered.”
Haselton said while harassment laws already define unprotected speech, the anonymity of the Internet would make it virtually impossible to find those responsible.
“If it’s something that’s insulting somebody anonymously, that’s not illegal and generally not trackable,” Haselton said.
Anti-cyberbullying advocates say that states need to change their anti-bullying policies to include electronic speech, such as phone text messages or on the Web. But critics say that vague language in the laws could allow administrators to use the policy to censor protected speech.
A bill in Washington would require cyberbullying prohibition to be included in school districts’ conduct policies initially would have also attempted to regulate student behavior outside of school grounds. The state’s House and Senate have passed the bill.
But after the state’s American Civil Liberties Union chapter raised its concerns about school administrators potentially overstepping their bounds, the bill was amended and addresses behavior that occurs during school hours and on school grounds.
Doug Honig, spokesman for the ACLU of Washington, said he sees the bill as “taking the typical school concerns about bullying and adding speech in cyberspace at school.”
“Schools don’t have authority to control what students say off campus on their own time,” Honig said. “They do have ability to and the authority to say what happens at school” when it crosses a legal boundary.
Haselton said bills that look to curb cyberbullying at school would do little to stop it.
“It’s a case of them saying they can’t prevent it — they just don’t want to be accountable,” Haselton said. “It’s not a case of them preventing something from happening, it’s just them wanting to wash their hands of it.”
Goodman said laws that were intended to stop bullying could open the door for other forms of muting student expression in schools.
“Under some of these bills, I think school officials would feel empowered to justify acts of censorship of expression simply because they could claim it is harassment in some way,” Goodman said. “I think most people would say if we don’t have the right to criticize our government officials, we have no meaningful First Amendment rights at all.”
And with the constant changes of how social networking sites have developed on the Web, legislation could quickly become outdated, Jenkins said.
“You’re trying to fix into law something that is constantly in flux and you’re never going to be able to adapt,” Jenkins said. “You’ve got a system that starts out rational and becomes irrational very quickly.”
Making the call
Cyberbullying policy decisions should be left to local school boards — as prescribed in much of the states’ current legislation — otherwise problems for schools could arise, Hutton said.
“It can put a school board in a very tricky situation where if you follow the law handed down by state legislature, it could you get sued,” Hutton said. “The more prescriptive [legislation] gets, there are some liability tradeoffs that school districts have to think about, and that decision is left best at the local level.”
Hutton said while he is not opposed to state governments examining a continuously changing area such as the Internet and cyberbullying, but drafting policies that affect students should be left to the schools.
“It’s a lot easier for a school board to change a policy than a state legislature to change a statute,” Hutton said. “I don’t mean to be suggesting that states have no business doing this, but there’s a lot of things that need to be thought about.”
Any law that would curb online expression could not keep up with technology, Jenkins said.
Any attempts — at the state or local level — to stop anonymous speech on the Web will likely prove to be ineffective, Haselton said.
“As long as it’s something that students can just as easily do from home as they could from school, it’s just for show, anyway,” Haselton said. “You wouldn’t usually be able to find out who it was no matter what laws they pass.”
A deciding factor in student Internet expression cases has involved whether the controversial expression took place on or off school grounds.
In Beussink v. Woodland R-IV School District, a federal district court ruled that school officials violated student Brandon Beussink’s First Amendment rights when they suspended him for 10 days for creating a Web page that contained vulgar language that was critical of the school.
The judge cited Tinker v. Des Moines Independent Community School District, a landmark U.S. Supreme Court decision that said administrators may not censor student expression unless it causes a substantial disruption of school activities or violates the right of others.
“Disliking or being upset by the content of a student’s speech is not an acceptable justification for limiting student speech under Tinker,” the Beussink decision read.
But in J.S. v. Bethlehem Area School District, an unidentified 8th grade student who created a Web site at home that criticized his math teacher and principal, comparing the teacher to Adolf Hitler, the case was decided very differently.
The student was expelled for the site after the school said it inflicted emotional distress upon the teacher and caused a disruption among students at the school. The student sued the school district, saying his Web site was protected speech, but the Pennsylvania Supreme Court sided with the school.
“We hold that where speech that is aimed at a specific school and/or its personnel is brought onto the school campus or accessed at school by its originator, the speech will be considered on-campus speech,” the decision read.
Hutton said school districts think carefully before creating policies on constitutional matters.
“Once you’ve asserted your authority to do something, there’s an argument that you’ve asserted the responsibility to do something,” he said.
As more cyberbullying bills become cyberbullying laws, students will likely encounter free expression problems, Goodman said.
Kowalski said schools could attempt to create policies against cyberbullying outside of school, although parents would have to sign off on such a proposal.
“Once they’re signed and agreed upon, then they are enforceable,” she said.
Jenkins said with restrictions against expression that could be interpreted as bullying, an environment could develop where administrators “encroach on more speech than they mean to,” such as statements that are critical of political or ideological viewpoints.
“All of those will be abuses of the [antibullying] laws on the books and the consequences will be severe on young peoples’ free expression rights,” Jenkins said.
Ultimately, Goodman said the deciding line between free expression and cyberbullying could be left to the courts, should the bills become law.
“What I think we’re going to see later is there’s going to be cases in court testing the constitutionality of these restrictions,” he said. “I think it may end with the courts ultimately rejecting some of these provisions.”
Hutton said while the Internet has revolutionized learning, cyberbullying is “the dark side of it.”
“It’s unfortunate if the way we have to figure this stuff out is because of lawsuits, because the money comes out of some kid’s education,” Hutton said. “It’s fortunate in how it’s revolutionizing the way we live and how schools can teach and [cyberbullying] is sort of the dark side of it, but the upside is very powerful.”
reports, Spring 2007