Weighing fear against rights

Critics: Cyberbullying hysteria is beating up First Amendment protections for students

Katherine Evans was a frustrated high school student when she posted a rant about a teacher in November 2007 and invited others to "express your feelings of hatred." The three responding comments all supported the teacher instead, and Evans removed the message. But her writing still came to the school's attention ' she was accused of violating the school's policy against cyberbullying and suspended for three days.

Parents and educators trying to crack down on "cyberbullying" tell painful stories about students harassing their classmates with text messages and posting hurtful rumors online ' but as Evans found out, laws and policies against cyberbullying could open new routes to attack substantive student speech.

In the first major case to appeal cyberbullying charges on First Amendment grounds, Evans is suing to get her disciplinary record cleared. Maria Kayanan, associate legal director at the American Civil Liberties Union of Florida, is working on the case. She said policies targeted at "mean girls and mean boys" are dangerous because they include conduct that happens away from school grounds.

"There's clearly a place for protecting children in schools from each other, because sometimes the bullying can pose imminent physical harm," Kayanan said. "But when you talk about the speech like [Evans'] or something that's published in a student newspaper critical of, say, the school administration or a teacher, under many schools' definitions of cyberbullying that would be prohibited. So it's a real smashup between the First Amendment and legitimate concerns, in some instances, to protect children."

Educators and legislators are tackling this new schoolyard menace with a flurry of policies that give administrators control over students' electronic expression. In response to concern about the now-defunct JuicyCampus.com, the New Jersey attorney general told colleges and universities in the state to make sure their codes of conduct included the topic of "cyber-harassment."

Mary-Rose Papandrea, an assistant professor at the Boston College Law School, said the national focus on students cyberbullying each other is a diversion from the actual First Amendment issues, because most cases so far involve a student who posted something offensive about a teacher or administrator.

"It's not really about protecting kids from other kids ' and that could raise a whole host of other issues," she said. "When it is involving students who are poking fun at their teachers, the teachers and principals just need to have a thicker skin."

Even policies created with good intentions like "promoting a safe environment" or "making all students comfortable" could open the door for censorship, said Will Creeley, director of legal and public advocacy for the Foundation for Individual Rights in Education.

It is not clear whether policies aimed at harassing e-mails and text messages could be used to censor online newspapers, students' blogs or comments from readers. One thing is for certain, Creeley said ' some administrator somewhere will try.

"All of these understandable rationales for restricting speech, in the end, lead to abuse," he said.

Harassment policies ' the low-tech older sibling of cyberbullying policies ' have been used to justify censorship of students' opinions, Creeley said. At Tufts University in 2007, a conservative student paper was found guilty of violating the Bedford, Mass., school's harassment policy for satirical articles offensive to minority students. It would not be surprising to see cyberbullying policies used in the same way against online publications, Creeley said.

"Our concern about passing more legislation and much of the cyberbullying legislation we've seen is that it's broadly written, it's typically very vague, and it does threaten to swallow protected speech," he said.

FIRE and the New Jersey chapter of the Society of Professional Journalists joined the Student Press Law Center in a letter of concern to New Jersey Attorney General Anne Milgram about the vagueness of her directive to the state's higher education institutions.

"An open-ended directive that colleges enact codes of conduct that punish the use of computers for 'bullying' will invariably cause some administrators to penalize lawful speech that falls within the protection of the First Amendment," the groups wrote in November 2008.

In contrast to traditional publications, administrators may be even more concerned about online speech because of its potentially global audience.

"A lot of the reasons schools are getting up in arms about the Internet speech are because they feel it reflects badly on the school,"

Papandrea said.

The ramifications of this new medium are perplexing judges trying to apply old precedents to new kinds of speech, she said ' and other people are conflicted about how they feel, too. Student newspapers that were read and promptly recycled in the past are now available to the whole world online, potentially forever.

"Before, if it's on the bathroom wall, you erase it. If it's in the kid's notebook, you throw it away. But this medium is different," said Clay Calvert, a professor and co-director of the Pennsylvania Center for the First Amendment at Pennsylvania State University. "And frankly the kids know the medium far better than many administrators do, and that's probably scary, too."

This underlying perception that technology makes unpleasant or offensive speech "worse" is part of what is troubling about this push to discipline cyberbullying, SPLC Director Frank LoMonte said."The fact is that more people are likely to see graffiti on a bathroom stall at school than a student's blog entry, and as adults we ought not to be feeding the frenzy of vulnerable young people that, just because something is accessible electronically, it means 'the whole world' is reading it and believing it," LoMonte said. "Adults ought to be teaching kids exactly the opposite ' that their value as people is not in any way defined by an anonymous insult on a social-networking page."

reports, Spring 2009