Hot air or harmful speech? Legislation grapples with preventing cyberbulying without squelching students’ free speach

By Kara Carnley-Murree

In this post-Columbine age of zero tolerance for school bullying, school administrators take a tough stance against bullying behaviors that occur on campus. But do schools have the authority to censure the often vicious student-on-student bullying, known as “cyberbullying,” that takes place online and away from campus?

Cyberbullying, or the willful and repeated use of cell phones, computers, and other electronic communication devices to harass, intimidate and threaten others, has collided with the public school system in recent years because of the prevalence of communication technologies in today’s youth culture. Though often compared to schoolyard bullying, a key component that differentiates cyberbullying from traditional schoolyard bullying is the use of this technology to harass the victim.

“Behavioral science research shows that cyberbullying affects children in much the same ways that traditional bullying affects them,” said Lauren G. Fasig, a University of Florida assistant in law and director of research for the Levin College of Law Center on Children and Families. “That is, victims of both types of bullying may experience a wide range of negative outcomes, including academic, personal, and social problems.”

She noted the dichotomy that exists between science and the law in terms of classifying cyberbullying behavior.

“Bullying is considered a public health problem, and the science considers cyberbullying along the same continuum of violence as traditional bullying,” Fasig said. “However, recent legal analyses treat cyberbullying as speech.”

Several instances of cyberbullying recently in the news provide insight to the demarcations between protected and unprotected speech.

School officials in Beverly Hills, Calif., became the target of a student speech lawsuit in June 2008 after suspending a student, whose name has not been published, for her off-campus recording and posting of a video on YouTube that depicted a group of middle school students commenting negatively about one of their classmates. Citing cyberbullying concerns, school officials suspended the student for posting the video. The suspended student’s parents filed suit in the federal district court of Los Angeles, arguing their daughter’s free speech rights were violated when the school suspended her for off-campus speech.

In Florida, Katherine Evans received a three-day suspension from her high school for creating a Facebook page that criticized one of her teachers as the worst teacher she ever had. The page, which she created away from school, also solicited comments about the teacher. Now attending the University of Florida, Evans has sued the school principal for ordering her suspension and she is seeking to have it expunged from her record.

The tragic case involving Hope Witsell — a 13-year-old girl from Tampa, Fla., who became the victim of a “sexting” campaign — demonstrates a more notorious variation of of cybernullying that has recently become prevalent to school-aged teens. An estimated 20 percent ofg teens between the gae sof 13 to 19 have engaged in sexting or the sending of sexually explicit images or messages, according to a report from the the National Campaign to Prevent Teen anf Unplanned Pregnancy. In Hope’s case, a nude photo she sent of herself to a boy she liked was circulated to other students after another girl saw the picture in his phone and fowarded it along. Anguished by the vicious taunting that followed, Hope took her own life.

In perhaps the most infamous case of cyberbullying, 13-year-old Megan Meier commited sucide after becoming the target of a Myspace hoax, in which a schoolmate’s mother, posing as a boy, used the social networking aite to romantically woo and then cruelly reject her.

The case became the focus of anti-bullying campaign and spurred recent congressional legislation in the form of the “Megan Meier Cyberbullying Prevention Act,” which would make cyber bullying a federal crime. The bill came before the House Judiciary Subcomittee on Crime, Terrorism and Homland Security on Sept. 30, where is now appears to be stalled as members struggle with how best to prevent Internet bullying without infringing on free speach.

Although some argue legislation is needed to protect against “online victimization” of children ages  2 to 17, others contend it could pose as a significant threat  to students and student speech.

“In and of itself, cyberbullying was really unknown to most people 10 years ago,” said Scott Bauries, (JD 05) a University of Kentucky assistant professor of law and an expert in education law. “It certainly eas not a front-line concern for most school districts. So every development in the law that relates to cyberbullying as ‘cyberbullying’ is generally less than 10 years old.”

Although the U.S. SUpreme Court has addressed the issue of what constitutes student speech on many ocassions, the court has yet to rule decisively on free speech issues integral to cyberbullying.

“The problem is that the U.S. Supreme Court has neveraddressed a case pitting the First Amendment speech rights of minors in cyberspace against the authority of public schools to punish them for online speech,” said Clay Calvert, who earned his JD from the University of the Pacific in 1991 and now researches First Amendment issues as a professor in the UF college of Journalism and Communications.

“When odd-campus speech negatively targets, harasses or otherwise detrimentally affects other students or teachers and school administrators, we’re seeing schools reaching beyong the proverbial schoolhouse gates to punish students for their off-campus expression.” he said.

In the vois of pfederal legislation, many states have enacted anit-bullying laws. In the last decade, 19 states including Florda, have enacted laws that prohibit cyberbullying within state boundries, according to the National Conference of State Legislatures.

For the most part, it seems that there have been ralatively minor textual changes in the law to account for cyberbullying. These laws have generally amended traditional bullying statutes of technology, Bauries said.

“There were lots of anti-bullying policies on the books that would have arguably covered cyberbullying,” he said. “really the only chnage we are seeing is that technology terms are being added into the cyberbullying policies or statutes to make sure that cyberbullying is covered. But that’s understandable because technology didn’t exist before.”

“So now the technology exists, and we’ve asjusted to it in some states by adding terms such as ‘sexting,’ and ‘blogging,’ if there is a statute.” Bauries said. “And if there isn’t a statute, then often it’s a policy matter at the local level and sometimes those are much more specific.”

Significantly, these statutes have made cyberbullying a matter of the school district, by requiring them to develop policies and procedures for dealing with cyberbullying speeach when it comes to the attention of school administrators.

Maintaining school afety in a post-columbine era is, indeed, a concern for school districts in the lignt of the severe consequences that can arise from online harassing speech.

“Science would say that there are no boundries for regulation os cyberbullying behavior, whether it takes place in the park or on a school campus,” said Fasig. “Yet the law draws arbitrary lines because it has to. The difficult thing is going to be defining this line because the digital era blurs it.”

The issue with these statutes is that cyberbullying often overlaps with off-campus expression, which brings up First Amendment concerns.

“The biggest issue, of course, is the First Amendment because, essentially, if you are creating ways for a school, which is a state actor, to punish a student — and the thing the student is being punshied for is expressive conduct — well then you have to justify that somehow under the First Amendment,” said Bauries. “And I’m not sure it can be justified legitimately unless cyberbullying rises to the level fo fighting words or something like that.”

This is the crux of the cybullying debate and is perhaps why legislation such as the “Megan Meier Cyberbullying Prevention Act,” has not been passes.

So the equation becomes, is there another way to effectively regulate harmful cyberbullying behavior without extending the authority of the school district beyond schoolhouse gates?

Bauries recommends the tort system as a better mechanism for targetting off-campus cyberbullying.

“Since school districts likely can’t constitutionally regulate this stuff, it seems like what the victims of cyberbullying might be left with, once everything shakes out and these policies get challeneged in court, is the tort system, which creates all kinds of causes and action for invasion of privacy, and many of these types of cyberbullying might fall better under the tort system.”

Either way, federal legistlation to control student behavior would hardly seem the way to go. It is unlikely to be effective in deterring children from engaging in cyberbullying behaviors.

“I doubt a 13-year-old girl who wants to pick on a classmateis going to say to herself, ‘Hey, maybe I shouldn’t do this because, like you know, there’s a federal law or something against it,'” Calvert said.