Widely publicized suicides have once again shed light on the harm that bullying, especially with help from the Internet, can cause. But as schools and legislatures across the country update laws, or pass new ones, that attempt to regulate “cyberbullying,” freedom of speech advocates worry students’ rights could be in jeopardy.
At least 28 states have enacted legislation specifically targeting cyberbullying — 22 of them within just the past four years, according to the National Coalition Against Censorship. And the recent student deaths have put the issue back on the minds of parents, journalists and lawmakers alike.
The U.S. Department of Education even felt the need to step in, sending out a memorandum at the end of October, reminding schools, colleges and universities that bullying may also violate federal law.
“I am writing to remind you, however, that some student misconduct that falls under a school’s anti-bullying policy also may trigger responsibilities under one or more of the federal antidiscrimination laws enforced by the Department’s Office for Civil Rights,” wrote Assistant Secretary for Civil Rights Russlynn Ali in the letter.
Ali went on to write, “harassing conduct may take many forms, including verbal acts and name-calling; graphic and written statements, which may include use of cell phones or the Internet; or other conduct that may be physically threatening, harmful, or humiliating.”
There is broad agreement that schools should confront the problems bullying creates, but there is great potential for principals and teachers to abuse the power given to them when laws allow them to punish students for speech made off campus at a non-school-sponsored events.
Eugene Volokh, a professor at University of California Los Angeles School of Law who specializes in free speech law, said schools generally have a great deal of flexibility when it comes to regulating cyberbullying and Internet harassment.
He said the main question state laws have raised is to what extent schools have control over off-campus speech.
“Some lower courts say schools don’t have this power, but other courts say it can restrict off-campus speech as long as it has substantial chance of causing a material disruption,” he said.
He added a lot of statutes are very general, so anti-cyberbullying laws could apply to students’ Facebook statuses, speech they make on newspapers’ websites and other open forums on the Internet.
“[Those laws] would be almost certainly unconstitutional unless they were limited to things like threats or one-on-one communication,” he said.
Regardless of whether states adopt anti-cyberbullying laws, Volokh said students’ speech is limited at school.
“It doesn’t take an anti-cyberbullying law for schools to restrict speech by their students in their administrative capacity,” he said. “Even without such a law a principal can say ‘look you’re disrupting school, I’m going to suspend or expel you.’ So it’s not clear to me why you need a law for that unless you think that principals are not doing a sufficiently good job of protecting students.”
So how should states go about regulating threatening speech made by student to other students?
Professor Justin Patchin, co-director of the Cyberbullying Research Center, an organization that provides information on the causes and consequences of cyberbullying, said the most important thing is to provide resources and education to administrators and teachers on how to deal with bullying.
Patchin, along with Professor Sameer Hinguja, began their research on cyberbullying in 2001, and the two launched a website in 2005 that aims to educate students, parents and educators about the dangers of cyberbullying.
As for state laws, Patchin pointed out that the majority of states instruct the department of education or individual school districts to include “bullying through technology” in their bullying policies. He said this is problematic because the laws often do not provide schools with additional resources or training.
He said without a clear definition of what constitutes cyberbullying and proposed actions on how to deal with it, regulating and enforcing bullying policies becomes difficult.
“The vast majority that have been passed just say schools have to deal with it,” he said.
When it comes to states that have taken a more active approach to regulating cyberbullying, Patchin said he realizes administrators and teachers may abuse their powers.
“We certainly don’t advocate principals policing the Internet, but they should do something when the find out about it,” he said. “You don’t have the right to threaten anyone, no matter what.”
Despite the potential problems, state legislatures have still made attempts to put a stop to cyberbullying. Most of the existing laws simply require local school districts to adopt their own policies or provide education on the issue. A few, however, make a criminal offense.
Of the states that have some type of bullying law, five specifically address “cyberbullying” and 30 include some mention of “electronic harassment,” according to the Cyberbullying Research Center.
Following the death of Rutgers University freshman Tyler Clementi, who jumped off the George Washington Bridge after a clandestinely recorded sexual encounter with another male was broadcast over the Internet, New Jersey state legislators adopted the “Anti-Bullying Bill of Rights” on Nov. 22. The bill was awaiting Gov. Chris Christie’s signature or veto as of press time.
If signed, the bill would require and provide training about harassment for school and district administrators, teachers, school board members and school resource officers. It would also require public colleges and universities to add anti-bullying policies as well as enforcement plans.
The bill further states that the school district’s policy on harassment and bullying must include responses and actions to instances of bullying that occur off school grounds. The bill specifies that the harm a student may experience could be physical or emotional. It also adds to the definition that “the creation of a hostile environment at school and the infringement on the rights of the student at school” is considered bullying, while eliminating the requirement that the “disruption or interference” at school must be “substantial.”
The law, which passed in July, gives schools permission to take action in response to cyberbullying that occurs either on school property or at a school-sponsored event. It also allows schools to take action if the bullying occurs off school property, provided the conduct interferes with a student’s education or causes a substantial disruption.
State Rep. Donna Schlachman (D-Exeter), who helped draft the legislation, said several parents contacted her after their children had been bullied at school. She realized the laws needed to be revamped and put together a committee to start work on the bill.
“We knew there were some curriculums that schools were using that were just bogus,” she said.
The bill also requires schools to provide annual training for school staff, which was a big fight, Schlachman said.
“Information is always changing,” she said. “We wanted it to be clear this was something they needed to do.”
Schlachman said sponsors chose to use the words “substantial disruption” in the bill to give administrators more power since bullying happens off campus so frequently. The Supreme Court’s Tinker standard enables administrators to prevent or punish speech in traditional school settings if it is substantially disruptive of school operations, so importing that standard for off-campus speech suggests that principals may police off-campus conduct up to the constitutional limit for on-campus conduct.
As for whether principals or teachers may take advantage of the law, Schlachman said she had not given much thought to it.
“You know, that didn’t even come up on our radar,” she said. “This law was very much focused on kid-on-kid, serious harassment.”
In July, the state of Louisiana passed two laws dealing with cyberbullying.
The first makes cyberbullying someone under the age of 17 a crime. Under the new law, offenders can be punished for acting with the intent to “coerce, abuse, torment, intimidate, harass, embarrass, or cause emotional distress to a person under the age of seventeen.”
State Rep. Roy Burrell (D- Shreveport), who authored the legislation, said he wrote the bill as a proactive measure after he heard on the news about a number of incidents that involved bullying.
“I thought we needed to do something about this,” he said.
Burrell said a key element of Louisiana’s law is that it lays out two distinct courses of punishment: one for those under the age of 17 and one for those 18 and older.
Those over the age of 18 convicted of cyberbullying can be fined up to $500 and receive up to six months in jail. On the third offense, the offender can be fined up to $5,000 and receive up to three years in jail.
Burrell said it was important to have some kind of penalty for students, but he did not want the outcome to be jail. After talking to other legislators, Burrell added a clause stating that those 17 years old and younger must undergo counseling.
The second law, authored by Rep. John LaBruzzo (R-Metairie), makes schools review and update policies to specifically “address the nature, extent, causes, and consequences of cyberbullying.”
Additionally, the law prohibits cyberbullying on and off school campus.
Illinois takes a less punitive approach with “The Internet Safety Act,” a law passed in 2009 that requires all students in third grade and above to attend an Internet safety class at least once a year.
The Illinois State Board of Education and the Attorney General worked together to produce the bill and a recommended curriculum for schools.
Matt Vanover, spokesman for the Illinois State Board of Education, said since the state saw a greater use of the Internet and its dangers, officials felt it was important to teach students how to use the Web safely.
Vanover said the state is leaving it up to individual school districts and schools to decide what to include in the safety classes, but the state department of education recommends the classes include sections on safe and responsible use of the Internet, the risks posed by online predators, identity theft, cyberbullying and harassment, and illegal downloading.
“It’s important because as the Internet becomes more and more of a tool there is more and more of a likelihood it will be abused,” he said. “We have staff teach students drivers’ education and health, so it makes sense to teach something that is so prominent in your life.”
The national spotlight was thrust on Missouri after a 13-year-old girl committed suicide in 2006 when her 49-year-old neighbor posed as a teenage boy and sent her harassing messages over MySpace.
In 2008, the state enacted a law that made harassment from computers, text messages and other electronic devices illegal. It also mandates that schools have a written policy requiring administrators to report crimes of harassment and stalking.
State Rep. Sara Lampe (D-Springfield) said the bill is a good start but still flawed.
“This law is a small piece of a bigger, larger, more complex issue,” she said.
Lampe, a former elementary school principal, proposed a more specific bill that included a clause with enumerated categories of people who should be protected from bullying — students of a different race, ethnicity, religion or sexual orientation.
She said this was considered too controversial and voted down by the majority party, adding the party said all students need protecting so there is no need to have categories.
“It’s about keeping kids safe,” she said. “It comes back to having core decency and respect for humans, and that’s hard to legislate.”
Lampe also agreed that teachers and administrators should have more training on how to deal with bullying, both traditional and cyberbulling.
“Schools are supposed to be places where a kid can go and feel safe,” she said. “Our children deserve our protection.”
A First Amendment risk
Following Clementi’s death, greater focus has been placed on internet harassment at the college level. However, First Amendment experts warn that regulating expression by college students raises even greater free speech concerns.
“I think we’ll see more of it,” said David Hudson, a scholar the First Amendment Center in Nashville, Tenn. “I think it’s a little more troubling because there’s traditionally been a dichotomy between governmental control of secondary school student speech and those who are over the age of majority. So I think it’s a little more problematic.”
Hudson said legislators should confine cyberbullying statutes to existing case law, regulating only speech that’s truly threatening or falls into a recognized free speech exception. Otherwise, the laws risk being struck down by judges.
Ultimately, Hudson said the U.S. Supreme Court may provide some guidance on the issue.
“I do think the Court is going to take a student internet speech case for sure,” Hudson said. “I don’t know if it’ll be in the context of a cyberbullying case. But in my mind there’s no doubt that they’re going to have to take a student internet speech case because there’s just so much uncertainty and there’s a growing number of cases, and the legal landscape is quite muddled.”
By Chelsea Keenan, SPLC staff writer