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Bills to curb cyber-bullying raise free-speech concerns
February 4, 2008
Craig L. Rice, a Democratic delegate in Maryland,
introduced HB199 in January. The bill broadens the definition of bullying to
include "any intentional written, verbal, or physical act, including any
published communication," that could physically harm an individual,
substantially interfere with an individual's education or substantially
disrupt the orderly operation of the school.
The bill would require the
Maryland State Board of Education to develop standards for investigating
complaints of bullying and disciplining individuals who have violated the
policy. It also requires the state board to establish a procedure for
protecting victims of bullying.
Anti-cyber-bullying bills also are active
in Florida, Kentucky, Missouri and Rhode Island.
Alex Grudger, a
legislative aide for Rice, said legislative staffers still are working out legal
questions such as whether school administrators are allowed to take part in
punishing students who bully off-campus, and if so, how this would fit into
their disciplinary policies.
"Although many people are interested in
[this bill], the legal language has been more difficult than we'd
thought," Grudger said.
In Florida, Rep. Nick Thompson's
HB669 allows administrators to punish cyber-bullying that happens off-campus as
long as it "has the effect of substantially interfering with a
student's educational performance, opportunities, or benefits; or has the
effect of substantially disrupting the orderly operation of a
school."
"It may be an incident that started outside of school
online, but when the kids come to school, they continue the bullying,"
Thompson said.
"The physical location or time of access of a
computer-related incident cannot be raised as a defense in any disciplinary
action initiated under this section," the bill reads.
States that
have passed anti-cyber-bullying legislation include Arkansas, Oregon, Minnesota,
South Carolina, Idaho, Washington, Iowa, New Jersey and Delaware.
Arkansas' HB1072, approved in February 2007, prohibits
cyber-bullying "whether or not the electronic act originated on school
property or with school equipment, if the electronic act is directed
specifically at students or school personnel, and maliciously intended for the
purpose of disrupting school."
Elliot Zimmerman, a veteran Florida
cyberlaw attorney, said schools should not be allowed to get involved in matters
outside school grounds. If one student, for example, sues another over slander
on MySpace, this is a matter between two individuals and their parents, not the
school, he said.
"I don't think schools are equipped to handle these
kinds of matters," he said. "As a disruption occurs in school, then
they would have the jurisdiction to get involved as it happens ... I would
contend that the school had absolutely no jurisdiction."
Zimmerman
said schools take on liability if legislators give them this responsibility.
"Imagine if they don't take action – if they miss
something. Wouldn't they be opening themselves up for a lawsuit?"
Zimmerman also said these laws might be constitutionally void for
vagueness, meaning they are unenforceable because their language is so broad.
Ronald Collins of the First Amendment Center in Washington, D.C., said
that although a lot of people use the phrase "cyber-bullying," he is
not sure as a legal matter what that means and how it is defined. If it is not
defined very narrowly, it is almost sure to raise First Amendment problems, he
said.
"Is there a difference between bullying and ranting? Is there a
difference between bullying and harassment? Bullying and threats? ... Unless the
law is specifically and narrowly defined, it is an abstraction," he said.
"When abstractions become law, that is a formula for
tyranny."
Student and parental rights should not be abridged by the
school off-campus, he said, unless the school is directly affected.
"Is the school going to get involved every time a distraught boy and
girl break up?" Collins said.
Some legislators have decided to leave
the schools out of their bills. Nicholaus R. Kipke, a Republican delegate in
Maryland, introduced a bill that would make cyber-bullying a misdemeanor
punishable by a $500 fine — an approach that places responsibility on law
enforcement rather than on schools, he said.
Others feel school
administrators should be involved, but only to a certain extent.
Justin
Patchin, an assistant professor of criminal justice at the University of
Wisconsin – Eau Claire, and Sameer Hinduja, an assistant professor at
Florida Atlantic University, have been researching cyber-bullying for five
years. They recommend schools get "informally involved" early on by
educating students on respectful Internet use to prevent
cyber-bullying.
"It's a very slippery slope. At what point does
a matter become so disruptive that the school should get involved?"
Patchin said.
By Kathleen Fitzgerald, SPLC staff writer
© 2008 Student Press Law Center
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