Cyberbullying: When a Students’ Right to Free Speech Goes Too Far

Author: Jordie Bacon, Associate Member, University of Cincinnati Law Review

In October 2003, Ryan Halligan, a thirteen year-old from Vermont, hung himself after his personal and embarrassing secrets were disclosed by his “friend” on AOL Instant Messenger.[1] In October 2006, Megan Meier, a thirteen year-old from Missouri, hung herself because her neighbor, disguised as a potential suitor, sent her messages on MySpace telling her to kill herself and that the “world would be a better place without her.”[2] In 2008, Jessica Logan, a Cincinnati native and high school senior, committed suicide after nude photos of her were sent to students at seven different Cincinnati high schools.[3] In April 2013, Rehtaeh Parsons took her life after photos of her having sex with a fellow student were disseminated throughout her school.[4] While these stories present the worst-case scenarios of the result of cyberbullying, they point to the disturbing prevalence of cyberbullying in the modern-day middle and high school students’ lives.

Presently, states have been left on their own to determine the best way to combat cyberbullying.[5] However, this means that each state has a different definition of cyberbullying, as well as different sanctions for the bullies.[6] Cyberbullying needs to be brought into the national conversation with federally regulated, nation-wide definitions and sanctions to ensure that victims of cyberbullying, regardless of their home state, receive the help they need.

Cyberbullying Statistics

Cyberbullying is generally defined as “willful and repeated harm inflicted through the use of computers, cell phones, and other electronic devices.”[7] The relative anonymity between cyberbullies and their victims lessens accountability and increases the potential for cruel and abusive behavior over traditional methods of bullying.[8] The prevalence of technology in our everyday lives, and the lack of accountability, has led to a steady increase of cyberbullying.[9] While some of the abovementioned cases started in the 1990s the growth in social media sites like MySpace and Facebook have made it easier for teens to cyberbully one another. In 2007, 18.8% of middle and high school students reported being cyberbullied, compared with 34% of students in 2015.[10] Of the 34% that reported being cyberbullied in 2015, 12.8% had experienced mean or hurtful comments in the past 30 days, and 19.4% had experienced rumors being spread about them online in the past 30 days.[11]

Cyberbullying Laws

As accounts of cyberbullying have increased, states have moved to criminalize cyberbullying by implementing “bullying statutes” into their education and criminal codes.[12] Statutes under the criminal code impose sanctions on youth for their bullying and cyberbullying behavior.[13] As of January 2015, forty-nine states (all but Montana) have enacted bullying laws, and almost all deal with some sort of electronic harassment.[14] Specifically, in the four years between 2006 and 2010, thirty-five states enacted cyberbullying laws in their education or criminal codes.[15]

Since cyberbullying is still a relatively new phenomenon, and often occurs off-campus, schools are struggling to find a way to enforce cyberbullying policies without over-stepping their legal authority.[16] Responding to off-campus cyberbullying has been a challenge, and many states have balked at the idea of implementing cyberbullying legislation.[17] This is partly because of the Supreme Court’s holding in Tinker v. Des Moines Independent Community School District, where the Court found that the suspension of students for wearing black armbands in protest of the Vietnam War violated the students’ First Amendment rights.[18] Under the Tinker standard, a school may regulate student speech that “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school.”[19] School jurisdiction over off-campus conduct is particularly relevant to cyberbullying since much of it happens on personal technology outside of school.[20] Examples of educational codes that address off-campus cyberbullying include Arkansas, where bullying by an electronic act “whether or not the electronic act originated on school property or with school equipment…is directed specifically at students or school personnel and maliciously intended for the purpose of disrupting school . . . .”[21] Another example is Louisiana, where the statute has a provision that covers cyberbullying off-campus if the “actions are intended to have an effect on the student when the student is on school property.”[22]

Education Codes Allowing Off-Campus Regulation

While some schools are afraid to regulate off-campus cyberbullying because they believe it will fail the Tinker standard, many courts have upheld the actions of schools in disciplining students for online behavior that occurred off-campus.[23] In J.S. v. Bethlehem Area School District, a student was expelled from school for creating a webpage that included threatening and derogatory comments about school personnel.[24] The Supreme Court of Pennsylvania found that schools had a right to discipline students for off-campus behavior when the result was a clear disruption of the school environment.[25] Similarly, in Kowalski v. Berkeley County Schools, the Fourth Circuit found that suspending a student for creating a MySpace page to harass a fellow student did not violate the student’s First Amendment rights.[26] The Court held that “Kowalski used the Internet to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the School District’s recognized authority to discipline speech which ‘materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school and collid[es] with the rights of others.’”[27]

Education Codes Disallowing Off-Campus Regulation

Even though schools can intervene in incidents of off-campus cyberbullying, however, it does not mean that they always have authority to do so.[28] There are cases from Washington and Pennsylvania where courts have sided with the bullying student and found that their First Amendment rights were infringed upon.[29] Therefore, victims of cyberbullying must sometimes look outside the school or educational statutes to receive the remedies they need.

Criminalization Codes

Off-campus cyberbullying may not be addressed in a school’s education code, so many states have implemented bullying statutes into their criminal codes. For example, North Carolina passed a law to criminalize cyberbullying, making it a misdemeanor for youths under 18 years-old.[30] Idaho has bullying legislation under Title 18 of their criminal code that defines and prohibits harassment through the use of technology.[31] Kentucky created the Golden Rule Act, which amended the state’s criminal code to include “harassing behavior” and “harassing communications”.[32] While these new anti-cyberbullying state statutes and relevant case law are a step in the right direction, they do not provide all the necessary help.

Next Steps

Although the stories mentioned earlier are in the minority for how cyberbullying cases often turn out, the over-arching themes are applicable to all cyberbullying cases. States have made great strides in both their educational and criminal codes to protect teenagers from the harms of cyberbullying, but more needs to be done, particularly on a federal level. Currently, while most states have some sort of statute dealing with cyberbullying, there are discrepancies in the definition of cyberbullying, the availability of criminal or school sanctions, and the inclusion of off-campus behavior.[33] A nationwide strategy for combating cyberbullying would help to stop the discrepancies between state legislation, and would provide better protection for the millions of teens that are cyberbullied every year. There is currently an anti-harassment in higher education bill in front of Congress, but nothing regarding cyberbullying or online harassment in middle or high schools.[34]

In 2010, Virginia considered criminal legislation that would make the most serious cases of cyberbullying punishable by a fine of $2,500 and up to a year in prison.[35] While this may seem overly harsh to some, this law would solidify the idea that cyberbullying is a crime that should be taken seriously, and the punishment should reflect the severity of the crime. In Kowalski, the cyberbully was initially suspended for ten days, but that was reduced to a five-day suspension.[36] But a five-day suspension does not invoke the gravity of the student’s actions as the penalty of serving jail time does. The bullying student in Kowalski was contacted to take the page down the same day, and it was only disseminated to two-dozen students, making it a much less serious case than some of the previously mentioned incidents that lead to death.[37] Since this would most likely not be deemed a serious case under the proposed Virginia statute, the cyberbully would not have to serve time. But paying a fine, performing community service, and having the incident go on the bully’s permanent record would discourage other teens from bullying a classmate in the future more effectively than a simple suspension.

A national cyberbullying policy would create one standard, which would provide much less room for state interpretation on a case-by-case basis. Arkansas’s current state laws surrounding bullying and cyberbullying would provide an effective blueprint for a national cyberbullying regulation. As previously mentioned, Arkansas’s general code addresses the issue of cyberbullying off campus, while also clearly defining harassment and cyberbullying and laying out consequences for engaging in the prohibited conduct.[38] The code allows the sanctions to vary depending on the age or grade of the student involved, and the severity of the bullying.[39] The clear definitions and guidelines ensure that students who participate in cyberbullying will be punished, but still allows flexibility based on the incident. Using Arkansas as a blue print for national cyberbullying regulation would ensure that students had a clear understanding of the seriousness of the issue, while still providing some leeway for younger students who may not understand the severity of their actions, or first time offenders who made a genuine mistake.

Conclusion

Creating a national cyberbullying strategy would help set a precedent that cyberbullying will not be tolerated in the future. A clear, consistent strategy would help students better understand the results of cyberbullying and the consequences of engaging in this behavior. As more stories come out of teens committing suicide because of online harassment, it is more important than ever that the discussion of cyberbullying and the harms it causes is brought into a larger, national conversation at the federal level.

[1] Ryan Halligan loses his life to Taunts, Rumors and Cyber Bullying, No Bullying (May 21, 2015), http://nobullying.com/ryan-halligan/.

[2] The Tragic Megan Meier Story, No Bullying (Sept. 10, 2015), http://nobullying.com/the-megan-meier-story/.

[3] Jessica Logan – The Rest of the Story, No Bullying (March 16, 2015), http://nobullying.com/jessica-logan/.

[4] Murray D. Segal, Independent Review of the Police and Prosecution Response to the Rehtaeh Parsons Case, (Oct. 8, 2015).

[5] Sameer Hinduja & Justin Patchin, Cyberbullying Legislation and Case Law: Implications for School Policy and Practice, 1 (January, 2015), http://cyberbullying.org/cyberbullying-legal-issues.pdf.

[6] Id at 1.

[7] Stuart-Cassel, et al., Analysis of State Bullying Laws and Policies, U.S. Department of Education, 1 (2011), https://www2.ed.gov/rschstat/eval/bullying/state-bullying-laws/state-bullying-laws.pdf.

[8] Id.

[9] Sameer Hinduja & Justin Patchin, Summary of Our Cyberbullying Research (2004-2015), Cyberbullying Research Center (May 1, 2015), http://cyberbullying.org/summary-of-our-cyberbullying-research/.

[10] Id.

[11] Sameer Hinduja & Justin Patchin, 2015 Cyberbullying Data, Cyberbullying Research Center (May 1, 2015), http://cyberbullying.org/2015-data/.

[12] Stuart-Cassel, et al., Analysis of State Bullying Laws and Policies, U.S. Department of Education, 16 (2011).

[13] Id at 7.

[14] Sameer Hinduja & Justin Patchin, Cyberbullying Legislation and Case Law: Implications for School Policy and Practice, 1 (January, 2015).

[15] Stuart-Cassel, et al., Analysis of State Bullying Laws and Policies, U.S. Department of Education, 1 (2011).

[16] Sameer Hinduja & Justin Patchin, Cyberbullying Legislation and Case Law: Implications for School Policy and Practice, 1 (January, 2015).

[17] Sameer Hinduja & Justin Patchin, Cyberbullying Legislation and Case Law: Implications for School Policy and Practice, 1 (January, 2015).

[18] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).

[19] Id at 503.

[20] Stuart-Cassel, et al., Analysis of State Bullying Laws and Policies, U.S. Department of Education, 24 (2011).

[21] Ark. Code Ann. §6-18-514 (Current through the 2015 Regular Session and First Extraordinary Session).

[22] La. R.S. §17:416.13 (Current through all 2015 legislation).

[23] Sameer Hinduja & Justin Patchin, Cyberbullying Legislation and Case Law: Implications for School Policy and Practice, 2 (January, 2015).

[24] J.S. v. Bethlehem Area Sch. Dist., 569 Pa. 638 (2002).

[25] See id at 650.

[26] Kowalski v. Berkeley County Sch., 652 F.3d 565 (4th Cir. 2011).

[27] Id at 567.

[28] Sameer Hinduja & Justin Patchin, Cyberbullying Legislation and Case Law: Implications for School Policy and Practice, 2 (January, 2015).

[29] Emmett v. Kent Sch. Dist. No. 415, 92 F. Supp. 2d 1088 (W.D. Wash. 2000).; J.S. v. Blue Mt. Sch. Dist., 650 F.3d 915 (3d Cir. 2011).

[30] N.C. Gen. Stat. §14-458.1 (Statutes current through the 2014 Regular Session).

[31] Idaho Code §18-917A (Statutes current through the 2015 regular and 1st extraordinary sessions).

[32] Ky. Rev. Stat. Ann. §158.444 (Current through 2015 Regular Session).

[33] Sameer Hinduja & Justin Patchin, State Cyberbullying Laws: A Brief Review of State Cyberbullying Laws and Policies, 1 (July 2015).

[34] S. 2164 (113th): Tyler Clementi Higher Education Anti-Harassment Act of 2014 (Mar. 27, 2017), https://www.govtrack.us/congress/bills/113/s2164.

[35] Stuart-Cassel, et al., Analysis of State Bullying Laws and Policies, U.S. Department of Education, 20 (2011).

[36] 652 F.3d 565, at 569.

[37] See id.

[38] Ark. Code Ann. §6-18-514 (Current through the 2015 Regular Session and First Extraordinary Session).

[39] Id.

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