There’s no question that harassment is a serious offense that can result in criminal punishment. But things get more complicated when harassment is no longer in person and when students become the offenders.
The explosion of social media and technology has opened doors to new outlets of communication. This has presented school administrators – and judges – with major questions about how First Amendment protections online may differ from those in person. Many of these questions have been spurred by harassment that takes place online, and to complicate things more, what authority schools should have over their students when the school day ends.
When someone hears the word “cyberbullying,” the now-famous stories of Megan Meier and Phoebe Prince often come to mind. Both of their suicides have been blamed on Internet bullying. As a result of these and other tragedies involving young people, legislators across the country have pushed for new laws to fight back.
Today, all states except Montana have laws against bullying, requiring schools to enact anti-bullying policies. In addition, all but five states have laws against electronic harassment.
Movement toward legislation dealing with cyberbullying came about shortly after Meier’s 2006 death, with her home state of Missouri among the first to adopt a law.
More recently, these efforts have evolved to not only make cyberbulling a matter for law enforcement, but to make it a punishable offense at school – in some cases, even when it occurs off campus. This has raised new concerns for First Amendment and student rights advocates who believe schools should not have the right to punish students for what they do outside of class.
So far, eight states have laws that expressly include off-campus behavior as part of their cyberbullying statutes: Arkansas, Connecticut, Louisiana, Massachusetts, New Hampshire, New Jersey, New York and South Dakota. Similar measures have been proposed in several other states.
“I think that school officials can regulate off-campus speech only if it has tangible, real-world consequences at school,” said David Hudson, a scholar at the First Amendment Center and author of the book Let the Students Speak.
“The application of the Tinker standard [is that the speech can be restricted if it] causes a substantial disruption, or a reasonable forecast of substantial disruption, of school activities. Otherwise it’s a matter of parental discipline or law enforcement.”
Despite this legal argument against school officials regulating off-campus speech, some are overcoming it, finding new ways to break out of the schoolhouse gate.
Schools officials are justifying off-campus involvement because they believe that online harassment will upset students at school, possibly even leading to physical altercations.
Perhaps one of the most extreme pieces of legislation in the past year was Indiana’s HB 1169. The bill would have allowed school officials to discipline students to the point of expulsion for doing or saying something that could “reasonably be considered to be an interference with school purposes or an educational function,” even if the speech took place off campus. This bill proposed to expand on the Indiana’s current law by taking out the requirement that the activity to be unlawful before the school can get involved. Sponsors of the bill thought it was necessary to strike the word “unlawful” so that administrators could better address cyberbullying incidents and cheating.
Late opposition from civil liberties groups, including student media advocates, caused legislators to take a second look at the proposal. At the end of the session, the legislature made no changes to existing law, but recommended a special committee study the issue.
Others feel more strongly about the need for schools to become involved in off-campus cyberbullying.
“Cyberbullying is something that schools absolutely need to respond to in many of these situations,” said Nancy Willard of the Center for Safe and Responsible Use of the Internet and author of the book Legal and Ethical Issues Related to K-12 Internet Use Policies.
A major legal question is what can be considered a true “disruption” of school within the meaning of the Supreme Court’s landmark Tinker v. Des Moines decision.
Online posts from students making fun of staff tend not to cause a substantial disruption, where as student-on-student bullying seems to be more detrimental, Willard said.
“The impact of the cyberbullying invariably affects how students are able to interact and engage while they are at school,” Willard said. “So when the actions of one student, regardless of where those actions occur, are legitimately interfering with the ability of another student to receive an education, there is an impact at school and it is significant. And if it is interfering with another student’s rights, then school officials, in my opinion, and also in the opinion of the court, not only have the authority to respond, I believe they should have the responsibility to respond.”
As schools are becoming more involved with punishing online bullying, so is law enforcement. So far 12 states have criminal charges available for online harassment. This includes Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nevada, North Carolina, North Dakota, Tennessee and Wisconsin.
Creating fake social media accounts is also becoming a punishable offense in some states. To date, California, North Carolina, New York and Texas have laws against creation of fake online profiles.
The North Carolina law specifically targets students, making it illegal for them to create an account in the name of a school employee with the intent to “torment” or “intimidate” that person.
Some First Amendment experts have questioned whether the law is constitutional. The ACLU of North Carolina is concerned with vague words being used to define these types of offenses. The ACLU worked with legislators to remove the word “embarrass” from the bill, but the organization remains concerned.
Policy Director Sarah Preston gave an example of how these words could become problematic. If a parent posted a photo online of their child in a funny Halloween costume, she said, this could be considered embarrassing to the child, or could be considered tormenting the child depending on how one interprets the meaning of the word.
More recently, a similar law in Texas resulted in the arrest of two middle school girls for creating a fake Facebook page about a classmate. Because of juvenile privacy rules, it was unclear how long the girls spent in juvenile detention or how the case was progressing. Texas law prohibits anyone from making a fake account with the intent to “harm, defraud, or threaten a person.”
Though these stricter laws may seem over-the-top to First Amendment legal advocates, their constitutionality will have to be determined by a court, Preston said. Since these new criminal offenses have been signed into law so recently, most of them haven’t been used enough to bring about a legal challenge.
Preston said the ACLU usually waits until a complaint has been filed before they take action against legislation they have concerns about.
With laws becoming stricter, it seems Arkansas and Louisiana can be considered the states with the most cyberbullying regulations in place. Both states have criminal sanctions for cyber harassment, as well as school punishment for similar behavior, including speech that occurs off campus.
Montana’s laws appear the most lenient. A person can only be pursued criminally if the person intentionally, “with the purpose to terrify, intimidate, threaten, harass, annoy, or offend, communicates with a person by electronic communication and uses obscene, lewd, or profane language, suggests a lewd or lascivious act, or threatens to inflict injury or physical harm to the person or property of the person.”
With each year, a new round of cyberbullying legislation arises, with schools and law enforcement often gaining more and more control over online speech – and with consequences becoming even more severe.
Despite wrangling between anti-bullying advocates and those concerned about free speech, it’s likely too early to tell if these laws are having the desired effect. And it’s impossible to know whether they can or have prevented the teen suicides that started the legislative trend.
“It’s obviously very disturbing and certainly, in some instances, bullying has played a key role in it,” Hudson said. “I’m not sure that it’s the full cause. It’s hard to generalize because when someone takes their own life, there could be other difficulties and the bullying just simply is the last straw that breaks the camel’s back, so to speak.”
By Nikki McGee, SPLC staff writer