Cyberbullying in the United States

Cyberbullying Laws

By Barbara Kate Repa. She is a lawyer, writer, and editor in San Francisco.

In today’s world of instant communication, bullying has gone beyond the schoolyard: Students have virtually unlimited ways to be mean. New Sate laws attempt to address cyberbullying, but defining and policing the problem is a huge challenge for school districts.

The U.S. Supreme Court has decided only a few cases weighing students’ First Amendment free speech rights against school officials’ duty to maintain order and safety in a classroom. In the first and best known of them, decided 43 years ago, the Court upheld public high school students’ right to wear black armbands to protest the Vietnam War.

In Tinker v. Des Moines Indep. Comm. Sch. Dist. (393 U.S. 503 (1969)), Justice Abe Fortas famously opined: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” (393 U.S. at 506.) But the Court ultimately ruled that student speech can be constrained if it poses a “material and substantial interference” with schoolwork or discipline. (393 U.S. at 511.)

A trio of cases after Tinker carved out additional categories of expression that may be restricted in school: speech that is lewd, vulgar, or patently offensive (Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986)); speech related to “legitimate pedagogical concerns” (Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988)); and speech promoting illegal drug use (Morse v. Frederick, 551 U.S. 393 (2007)).

Even now, school officials are left without guidance about when an interference is “substantial.” And last winter the Court declined to review several cases involving a more contemporary concern: how schools should deal with “off-campus” cyber-misconduct.

“I’d say 98 percent of our cyberbullying in the last three years is after school and on weekends,” says Silberberg, the superintendent. “When the students separate from the school, then it’s the Wild, Wild West. We’re put in the position of taking reactive rather than proactive action.” (…)

In anonymous online comments, some critics claim that what those who cry “cyberbully” need most is a stiff upper lip. And although such protests surely don’t apply to the most vile of cyber-taunts, they do raise a question or two: Are kids just more thin-skinned these days? Or are “helicopter” parents more apt to swoop in and try to shield them from unpleasantness?

On the Internet, the stakes are higher all around.

“The impulsive act of posting something stupid like a nude photo or writing an angry message creates a permanent record [online] that expands the degree of harm it causes,” says Nancy Willard of Embrace Civility. She emphasizes that cyberspace postings also have the potential to change the balance between the bully and the bullied. “If you’re weak, you may not stand up to others on the playground, but you might do it with a computer,” she says. “That also explains why there are so many postings from students about teachers and principals.”

Indeed, most of the cyberbullying cases that have made it through the courts so far involve allegations that students have abused teachers or principals. (The students’ defense is they have a constitutional right to compose and post freely.) In one example, the Third Circuit Court of Appeals held in 2011 that a middle school student was wrongfully suspended after she created a parody on MySpace describing her principal as a “tightass” and “sex addict” whose child “looks like a gorilla.” (J.S. v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011) (en banc), cert. denied, 132 S.Ct. 1097 (2012).)

“I am surprised by all the First Amendment claims,” says Shipley. “For some reason, the parents who sue tend to be lawyers. It’s pretty laughable.”

For now, the best solutions to cyberbullying by school kids may lie outside the law. Most experts recommend alternatives short of suspension or expulsion, to help mend fences between the bullies and the abused. Options include counseling, mentoring, parent/teacher conferences, education and awareness campaigns, gay/straight alliances, anonymous tip lines for students and parents, and, if necessary, a “provisional suspension” that can be removed from a student’s record after a period of good behavior.

Cyberbullying Stories in the Courts

Cyberbullying highlights clashes between school discipline and students’ free speech rights.

In 2008, a Beverly Hills eighth-grader posted a video on YouTube in which she and her friends called a fellow student a “slut,” “spoiled,” and the “ugliest piece of [expletive] I have ever seen in my whole life.”

The video got 90 hits online that night, and the next day the targeted student complained to school authorities.
The young videographer who posted the YouTube clip was suspended for so-called cyberbullying, but she claimed that being punished for her online diatribe violated her First Amendment rights, and she took the school district to federal court.

In the 2010 fall, an opinion was handed down in the case, making it the most recent decision in California to address cyberbullying, a phenomenon that has created legal uncertainty at the intersection of student speech, school discipline, and emerging technologies.

In its decision, the court sided with the plaintiff, holding that the school had overreached by punishing her (J.C. v. Beverly Hills Unified School District, 2010 WL 1914215 (C.D. Cal.)). Allowing the school to suspend a student “simply because another student takes offense to her speech” runs afoul of decades of settled case law, the opinion states.

The court relied heavily on the oft-cited Tinker v. Des Moines Indep. Comty. School Dist. (393 U.S. 503 (1969)), the carefully delineated U.S. Supreme Court decision that permits educators to regulate only student speech that could cause a “material and substantial disruption” to a school.

But times have changed since Tinker, which involved students who wore armbands to class to protest the Vietnam War. “There are definitely gray areas as to how far a school district’s arms will reach with respect to being able to discipline students,” said Adam Fiss, a shareholder in Littler Mendelson’s San Jose office who works with California school districts. “As students continue to use social networking sites, cyberbullying – and whether a district can discipline students for off-campus conduct – will continue to be an issue.”

Since the Beverly Hills case, other cyberbullying decisions around the United States have followed. A Pennsylvania student, for instance, created an unflattering MySpace page about the school principal, and then allegedly used a school computer to show the site to his classmates (Layshock v. Hermitage School Dist., 593 F.3d 249, 258 (3d Cir. 2010)). After the incident, the school suspended the student and limited computer use on campus. Eventually, the Third Circuit found that the school had improperly limited student speech.

A contradictory ruling by a lower court led the Third Circuit to grant a rehearing in Layshock and another cyberbullying case, J.S. v. Blue Mountain School Dist. (593 F.3d 286 (3rd Cir. 2010)). Both matters were reargued before a 14-judge en banc panel in June, and a decision is pending.

In the meantime, the legal waters remain murky. “It is not that the law has failed to catch up with the public view” of cyberbullying, says UCLA law school professor Eugene Volokh. “I think one issue of many is that the public doesn’t have a clear or suitably narrow definition, and neither do legislators.”

Meanwhile, this ambiguity doesn’t make the job of school officials any easier. “Schools cannot, for the sake of safety, take the position, ‘this [activity] is off-campus and [therefore] they cannot do anything,” says Nancy Willard, executive director of the Center for Safe and Responsible Internet Use. “What I am told by principals is that they are frequently in a damned-if-you-do, damned-if-you-don’t position when they are trying to address these situations.”

Resources

See Also

• Hazelwood School District v. Kuhlmeier
• Tinker v. Des Moines Independent Community School District
• Bethel School District v. Fraser
• Free Speech
• Speech Rights
• Constitutional Law Cases
• Listeners’ Rights
• Membership
• Education Law
• Cyberlaw
• Youth Violence

Cyberbullying in the Criminal Justice System

This section covers the topics below related with Cyberbullying :

Internet Safety

Cyberbullying and Cyberstalking

Resources

See Also

• Internet Safety
• Cyberbullying and Cyberstalking