Weighing fear against rights

Katherine Evans was a frustrated high school student when she posted a rantabout a teacher in November 2007 and invited others to “express yourfeelings of hatred.” The three responding comments all supported theteacher instead, and Evans removed the message. But her writing still came tothe school’s attention ‘ she was accused of violating theschool’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 textmessages and posting hurtful rumors online ‘ but as Evans found out, lawsand policies against cyberbullying could open new routes to attack substantivestudent speech.

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

“There’s clearly a place for protecting children in schoolsfrom each other, because sometimes the bullying can pose imminent physicalharm,” Kayanan said. “But when you talk about the speech like[Evans’] or something that’s published in a student newspapercritical of, say, the school administration or a teacher, under manyschools’ definitions of cyberbullying that would be prohibited. Soit’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 aflurry of policies that give administrators control over students’electronic expression. In response to concern about the now-defunctJuicyCampus.com, the New Jersey attorney general told colleges and universitiesin 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 LawSchool, said the national focus on students cyberbullying each other is adiversion from the actual First Amendment issues, because most cases so farinvolve a student who posted something offensive about a teacher oradministrator.

“It’s not really about protecting kids from other kids ‘and that could raise a whole host of other issues,” she said. “Whenit is involving students who are poking fun at their teachers, the teachers andprincipals just need to have a thicker skin.”

Even policies created with good intentions like “promoting a safeenvironment” or “making all students comfortable” could openthe door for censorship, said Will Creeley, director of legal and publicadvocacy for the Foundation for Individual Rights in Education.

It is not clear whether policies aimed at harassing e-mails and textmessages could be used to censor online newspapers, students’ blogs orcomments from readers. One thing is for certain, Creeley said ‘ someadministrator somewhere will try.

“All of these understandable rationales for restricting speech, inthe end, lead to abuse,” he said.

Harassment policies ‘ the low-tech older sibling of cyberbullyingpolicies ‘ have been used to justify censorship of students’opinions, Creeley said. At Tufts University in 2007, a conservative studentpaper was found guilty of violating the Bedford, Mass., school’sharassment policy for satirical articles offensive to minority students. Itwould not be surprising to see cyberbullying policies used in the same wayagainst online publications, Creeley said.

“Our concern about passing more legislation and much of thecyberbullying legislation we’ve seen is that it’s broadly written,it’s typically very vague, and it does threaten to swallow protectedspeech,” he said.

FIRE and the New Jersey chapter of the Society of Professional Journalistsjoined the Student Press Law Center in a letter of concern to New JerseyAttorney General Anne Milgram about the vagueness of her directive to thestate’s higher education institutions.

“An open-ended directive that colleges enact codes of conduct thatpunish the use of computers for ‘bullying’ will invariably causesome administrators to penalize lawful speech that falls within the protectionof the First Amendment,” the groups wrote in November 2008.

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

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

Papandrea said.

The ramifications of this new medium are perplexing judges trying to applyold precedents to new kinds of speech, she said ‘ and other people areconflicted about how they feel, too. Student newspapers that were read andpromptly 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. Ifit’s in the kid’s notebook, you throw it away. But this medium isdifferent,” said Clay Calvert, a professor and co-director of thePennsylvania Center for the First Amendment at Pennsylvania State University.”And frankly the kids know the medium far better than many administratorsdo, and that’s probably scary, too.”

This underlying perception that technology makes unpleasant or offensivespeech “worse” is part of what is troubling about this push todiscipline cyberbullying, SPLC Director Frank LoMonte said.”Thefact is that more people are likely to see graffiti on a bathroom stall atschool than a student’s blog entry, and as adults we ought not to befeeding the frenzy of vulnerable young people that, just because something isaccessible electronically, it means ‘the whole world’ is reading itand believing it,” LoMonte said. “Adults ought to be teaching kidsexactly the opposite ‘ that their value as people is not in any waydefined by an anonymous insult on a social-networking page.”