Dramatic cases have legislators concerned about online harassment, but civil libertarians worry new laws might end up picking on free speech
Twelve states have laws against cyber-bullying, requiring schools to develop Internet safety programs or policies to control the electronic harassment that many believe is becoming more prevalent. Still, First Amendment advocates and attorneys have expressed concern over the laws’ broad definitions of “bullying” and whether schools should get involved in incidents that happen outside school.
If Maryland’s governor signs HB 199, school districts will have to come up with policies to report, control and provide student counseling in response to cyber-bullying incidents that create a “substantial disruption” at the school — even if the incident takes place off school grounds.
Sometimes a fatal incident causes lawmakers to see a need for cyber-bullying awareness and legislation. The Chicago Tribune reported March 12 that Sen. Ira Silverstein’s (D-Chicago) bill, which passed a state Senate panel March 11, came out of a suburban St. Louis incident in which a 13-year-old girl committed suicide after receiving harassing e-mails. Missouri’s bill, a result of that same incident, was approved by the Senate in February.
And in Florida, both houses of the state legislature recently approved a bill named for 15-year-old Jeffrey Johnston, who committed suicide in 2005; that bill now awaits the governor’s approval.
But bills in other states, such as Rhode Island and Utah, are experiencing problems. Sen. John Tassoni Jr.‘s (D- Smithfield) Rhode Island bill, S 2012, was introduced in January, but on April 2 a Senate committee recommended it be held for further study. The bill “would expand the definition of student discipline codes to include electronic communications.”
Utah’s Deseret Morning News reported Feb. 13 that the state House put Rep. Carol Spackman Moss’ (D-Holladay) bill on hold because members felt the definitions of bullying were too broad.
David Hudson of the First Amendment Center said if the laws do not narrowly define what bullying is, administrators will run into challenges.
“This will depend on whether a court applies a full-fledged First Amendment analysis or whether they feel this is narrowly tailored enough to apply to speech that is harassment and a substantial disruption,” Hudson said.
Trying to regulate what bullying is seems to be an intractable problem, said John Morris of the Center for Democracy and Technology.
Morris, general counsel and director of the Internet Standards, Technology and Policy Project, said some exchanges among students contain “friendly banter,” and there is a mutual understanding between both parties about what the conversation is about. Those harmless conversations could be misconstrued as bullying, he said.
“And if two people engage in a posting on Facebook, it’s not at all clear to me that [it] has anything to do with the school,” Morris said.
Elliot Zimmerman, a Florida cyberlaw attorney, said schools are not equipped to handle cyber-bullying matters that happen off-campus. If one student wants to sue another over slander on MySpace, this is a matter between two individuals and their parents, he said.
But Bonnie Jasso, a counselor at Emporia Middle School in Kansas, said sometimes cyber-bullying that starts at home on a student’s personal computer can create a disruption at school.
“A lot of what’s going on here is outside of school, but the angry feelings and the discussion about it is brought to school,” she said.
Kansas’ Bullying Prevention Policy, which includes electronic bullying, required all schools to have their own policy by Jan. 1. The Emporia School Board policy says it prohibits bullying “in any form on school property.”
Jasso said as long as the incident happens on school grounds, such as on school computers or on a bus, the school can take disciplinary action. Even though school policy prohibits cell phone use during school, Jasso said text messaging is one of the biggest mediums for cyber-bullying. Students also use YouTube — a popular video-sharing Web site — to post embarrassing pictures of their peers and videos of students fighting, she said.
Students have been caught sending threatening e-mails on school computers, which results in taking away e-mail access and sometimes a detention. If a direct threat is involved, the student is suspended, she said.
Cyber-bullying that rises to this level might be better handled by courts than schools, some officials have concluded.
Silverstein said he decided it was better to leave the schools out of his Illinois bill, which amends the Harassing and Obscene Communications Act.
“I thought it was the best way, constitutionally, to do it,” Silverstein said. “It’s a criminal matter so I didn’t want any conflicts with it in education.”
In March, The Eagle-Tribune reported that a juvenile was arrested in Kingston, N.H. for cyber-bullying after a school resource officer reported the incident.
Lucy Carrillo, cyber-crime prosecutor with the New Hampshire Attorney General’s Office, said the state has no law specifically outlawing cyber-bullying. But when someone makes a “direct threat,” which she said may have been the case in this incident, the person can be charged with “criminal threatening” under the state’s crime code.
Carrillo visits schools to educate students on cyber issues, and said cyber-bullying is becoming “very, very prevalent.” Several schools have asked the attorney general’s office to draft them a cyber-bullying policy, she said.
Carrillo said cyber-bullying can actually be more detrimental than in-person bullying “because it can go on all day and all night.”
But Morris said Facebook postings are not significantly different than what was being said on the playground 30 years ago.
“Kids have always mistreated other kids using whatever way is available to them, and perhaps we should all take a deep breath and not be as concerned about it and really focus on education and the impact of one’s words,” he said.
And those words are not always aimed at students. Charles Kyte, executive director of the Minnesota Association of School Administrators, said cyber-bullying directed at school administrators and teachers is a growing problem in the state. There are a number of cases where people comment on a newspaper’s online comments section under an article about one of the schools, he said.
“They are making anonymous and sometimes flagrant comments about [school officials],” he said.
Kyte said he is planning a meeting with the attorneys for the Minnesota Newspapers Association to explore solutions to the problem.
“We’re very possibly beginning to bring suit against somebody if we can find the right case,” Kyte said, adding that while the newspapers’ attorneys are protective of their clients’ First Amendment rights, “they recognize that this whole business of electronic postings is on the edge of what is appropriate and what’s not.”
Society is still getting used to the “immediacy and widespread communication of the Internet,” Morris said, which leads to another question.
“The fact that it’s on the Internet — is that a reason why we should be more concerned with it? Or should we be less concerned? It can really cut both ways.”
More than 40 percent of U.S. teens say they have been cyber-bullied, according to a National Crime Prevention Council survey released in February 2007. The study defines cyber-bullying as “use of the Internet, cell phones, or other technology to send or post text or images to hurt or embarrass another person.”
Almost half of those surveyed think teens engage in cyber-bullying because they do not perceive any real consequences, and most teens do not think schools should address the issue. They feel that much “customary school intervention (large assemblies, etc.) would be largely ineffective.”
Aside from the 12 laws enacted, at least five other states are considering cyber-bullying bills.
Courts have ruled differently in past cases involving students’ First Amendment rights on the Internet. In 1998, Beussink v. Woodland R-IV School District, a federal district court said school officials violated a student’s rights by suspending him for a Web page that was critical of the school.
But in J.S. v. Bethlehem Area School District, the Pennsylvania Supreme Court ruled in 2002 that an 8th-grader’s rights were not violated when he was expelled for creating a Web site that school officials said caused a teacher emotional distress.
In 2005’s Neal, et al. v. Efurd, a federal court ruled that students were wrongfully punished for comments they made on their personal Web sites, which they accessed off campus. And in 2007’s Layshock v. Hermitage School District, a U.S. district court ruled that the school district violated a student’s rights when they suspended him for creating a satirical profile of his principal on MySpace.
Lauren Gelman, law professor and executive director of Stanford’s Center for Internet and Society, said it is unclear which direction courts are taking when deciding these cases.
“There’s a strong speech interest that students have that schools shouldn’t punish them for, and with these major changes that have happened with technology, schools are going to have to learn how to address these issues,” she said.
reports, Spring 2008