Wisconsin legislators consider anti-bullying bill banning 'annoying' speech

WISCONSIN — The Wisconsin Senate’s Committee on Education voted unanimously last week to move forward on legislation that would add cyberbullying and electronic harassment to the state’s antibullying laws, as well as require school district officials to report certain bullying incidents to law enforcement regardless of where the incident took place.

The amendment would permit administrators to “reasonably discipline” students who bullied others off-campus if the actions create a “hostile environment” on campus or there is “substantial” disruption to school-related operations. If officials have “reasonable cause” to believe the bullying acts violate criminal law, they are required to notify police. Violations would be considered a class B misdemeanor and carry up to a $1,000 fine.

Eight senators and nine representatives have signed on as the bill’s co-sponsors, and representatives have until Oct. 23 to assign it to a house committee, Rep. Robb Kahl said Wednesday. Kahl, a Democrat and one of the bill’s co-sponsors, said he was pleased that lawmakers from both major political parties have recognized the need for cyberbullying protection for K-12 students on and off-campus.

“At the state level here, we had anti-bullying laws in place, but what has really happened is you’ve seen the transformation of where bullying is most likely to occur,” Kahl said. “It’s not happening per se on school grounds. So what we’re doing here with this law is addressing the emergence of cyberbullying and the fact that it doesn’t originate within a school.”

However, the amendment does not clearly define what speech is and is not protected, said Justin Patchin, an associate professor at the University of Wisconsin-Eau Claire and a co-director of the Cyberbullying Research Center.

“At what point does a student’s speech cross the line?” Patchin asked. “Students have free speech in class, but they don’t have the right to disrupt learning environments. They can’t infringe on other students’ rights. But what does that mean? … If I have concern about a particular behavior and I express it inside or outside of the classroom in a way that someone takes offense to, is that bullying?”

The 1969 Tinker v. Des Moines Independent Community School District case states school administrators may not punish or censor student speech “unless they can clearly demonstrate that it will result in a material and substantial disruption of normal school activities or invades the rights of others.”

Student Press Law Center Executive Director Frank LoMonte said the criminal consequences in the law could incite officials to discipline students separately for violating school rules, which would be contrary to the Tinker standard. The amendment states any electronic postings, whether emailed or otherwise, that have “obscene, lewd or profane language” or suggest lewd or lascivious acts would fall under the definition of cyberbullying if they are harassing, annoying or offensive.

“The most problematic thing is to say that you can’t use profane language in a way that annoys other people,” LoMonte said. “If any citizen, including a kid, is moved to cursing about the poor performance of the school superintendent, that’s constitutionally protected even if the superintendent finds it annoying.”

The amendment also does not say it only applies to K-12 students, and it does not take into account speech discussing matters of public concern, he said.

“This (bill) doesn’t limit itself to bullying vulnerable citizens,” LoMonte said. “This is about criminally punishing you more than it is about imposing school discipline. There absolutely has to be an exception for addressing matters of public concern or that penalty is entirely unconstitutional.”

Patchin said that because the proposed legislation is so broad, almost anything could warrant a report to police under the language as it is currently worded, which state actions that “frighten, intimidate, threaten, abuse, or harass another person” or “harass, annoy, or offend another person” constitute bullying.

Kahl said the prevalence of nationwide media coverage about bullied students committing suicide or otherwise hurting themselves inspired him to take steps to ensure Wisconsin schools don’t face such problems. Facebook and Twitter posts could potentially be more harmful to students than physical altercations, he said.

“The days of one-on-one bullying are being supplanted by this type of bullying that’s out there for the world to see,” Kahl said. “A post on a Facebook page could be seen by hundreds or thousands of people.”

Kahl said the amendment only seeks to close a loophole in existing laws that could exempt electronic harassment from discipline. The bill’s language is similar to prior statutes prohibiting other forms of harassment, and legislators were careful to prevent abuse of the new law, he said.

“When I went to school, this type of activity wasn’t out there and didn’t occur,” Kahl said. “Teachers could see with their own two eyes when there’s a problem. But now they don’t see it physically happening. It’s happening in this cyber forum. If you’re at home at 10 o’clock at night posting these things, don’t think you’re exempt from the law.”

By Samantha Vicent, SPLC staff writer. Contact Vicent by email or at (703) 807-1904 ext. 126.