For my prewriting this week, I am posting a draft of my annotated bibliography. It is a large component of my paper and it has been very useful in writing my paper so far.
Topic: Cyber bullying vs. First Amendment
King, Alison Virginia. “Constitutionality of Cyberbullying Laws: Keeping the Online Playground Safe for Both Teens and Free Speech.” Vanderbilt Law Review, vol. 63, no. 3, 2010, pp. 845–884. file:///Users/karinalopez/Downloads/Constitutionality_of_cyberbull%20(2).PDF
This law review is intended to explain the friction that exists between the cyberbullying laws and freedom of speech as granted by the Constitution. The internet has become such an important means of communication in present day, but it has also become dangerous especially for the youth. Teens are online now more than ever and have grown up in a tech and digital world. However, they are being exposed to all sorts of issues such as cyberbullying and it is undoubtedly becoming a huge social problem that must be addressed by authorities and schools. In this particular review, the author goes on to explain what some of the current existing cyberbullying laws are in different states of the country and how they are actually creating more confusion or vagueness (11). As she explains, there are currently twenty states that have enacted laws to combat cyberbullying (14). Most of the laws in place now usually protect from online harassment with certain limitations. One of the most common limitations is that the laws only cover on campus situations whereas most cyberbullying usually starts from off campus locations and on public forums. So, the issue is where does the legislation draw the line to penalize online harassment without restricting freedom of speech?
The author of the review goes on to explain four different cases that have some link to restricting students’ freedom of speech in school settings. She sets the Tinker vs. Des Moines Independent school district as an example of how the supreme Court upheld the student’s constitutional right to freedom of speech even within school grounds (22). The other three cases are similar in which the first amendment usually trumps the case against it. I think this review is very informative for my paper since it extensively talks about the cyberbullying laws that are in place now and it explains the limitations that each has. It also dives into some of the challenges legislators face to avoid trampling First Amendment rights.
Hostetler, David R. (2014). Off-campus cyberbullying: First Amendment problems, parameters, and proposal. Brigham Young University Education and Law Journal, 2014(1), 1-25.
This review proves to be helpful in explaining the definition of off campus and on campus, in regard to cyberbullying and how the location of the incident is a major issue in regard to cyber laws. It has been clearer in past cases to discipline or restrict student’s speech when it is done within the schools’ jurisdiction. The problem arises when the cyberbullying is done off campus but creates a ripple effect that can splash into the school environment. This article further expands on the four major cases in the Supreme Court where student’s freedom of speech is being debated (4). These cases have set precedence for protection of student’s first amendment rights. And although these cases are not based on online communities, it does set parameters for how “substantial disruption” is defined and used against the first amendment. The tricky part is when cyber speech is initiated off campus rather than on campus (6). On school grounds, it becomes easier to discipline and demonstrate how the student could’ve disrupted the school’s environment. For example, the case of J.C and C.C, two thirteen-year-old students at a school in Beverly Hills, where one of them, J.C, uploads a public video humiliating and denigrating the other student, where all her classmates were able to see it (7). After a school investigation, the school decides to suspend J.C, who then proceeds to sue the school on the basis of the school violating her right to freedom of speech (8). The judge on the case proceeded to apply the “Tinker’s substantial disruption” standard and concluded that “there was no evidence of a reasonably foreseeable substantial disruption (9).” He also goes on to say that the student was not presented with any physical harm or threats and there was no reasonable evidence for the school to suspend the student “simply because another student takes offense to her speech (10).” This case is particularly important in regard to cyberbullying because it demonstrates the lack of protection to student’s emotional distress, particularly off campus, and how the current laws need to modify to adjust to the changing times. And use the argument that cyberbullying, although not physically harmful, can cause mental disruption that could be a potential catalyst for physical self-harm, including suicide. In another case that was more relevant to off campus cyberbullying, the case reached a conclusion that better reflects the off-campus issues with the current cyber laws. The case of student Kara Kowalski who created a social media page that ridiculed another student Shay about having herpes, and it was a page that was hundreds of students saw. After the victim was unable to attend school because it caused her emotional distress, Kowalski was suspended. She then proceeded to sue the school for violating her freedom of speech among other things (12). The court ruled in favor of the defendants saying that although Kowalski used her house computer, she knew that it “could reasonably be expected to reach the school or impact the school environment,” and that this was enough to suspend her on the grounds of substantial disruption as per the Tinker case (13). I find this particular case to be exceptionally groundbreaking because although it had no physical or substantial evidence of the harm as some of the other cases were asking for, the court ruled by common sense assumptions and foreseeable effects. The review goes into more similar cases about freedom of speech cases at school and how the Tinker standard is used to compare them in court. I find the article useful as it demonstrates the lack of clarity and the need of stronger and clearer cyber laws.
Hudson, David L., Jr. (2014). Bully fighting: New York’s High Court says anti-cyberbullying law won’t pass First Amendment muster. ABA Journal, 100(11), 15-17.
In this journal, David Hudson explains the reason why the cyberbully law placed by Albany county is being rewritten. In the case of People vs. Marquan, where a student created a site that “featured pictures of classmates with descriptions of their sexual practices and preferences (15).” This was a clear case of cyberbullying, and he was charged under the cyberbullying law. The issue with this law was that it defined “the crime of cyberbullying as any act of communicating or causing a communication to be sent by mechanical and electronic means including posting statements on the internet or through a computer or email network; disseminating embarrassing or sexually explicit photographs…(16),” and this is so vague and broad that anything as simple as a yelp review for a business under this definition could be considered cyberbullying. Marquan’s attorney goes on to explain that “communities across the nation should take note that criminalizing First Amendment activity is unlawful and does nothing to address the causes of bullying or prevent it from taking place.” Furthermore, she goes onto say that giving children criminal records also does no good in regard to address the issue. Although he pled guilty to violating the cyberlaw, he appealed on the basis of unconstitutionality of the cyberlaw.
This article does a good job explaining how one specific cyberlaw conflicts with the first amendment and how the courts will usually uphold the freedom of speech if no hard evidence is presented. I could use this article to explain my argument that the law on its own cannot entirely change the cyberbullying environment. The courts have such limitations that there needs to be a community effort to address the issue starting from inside the classrooms. Educating our youth about the dangers and issues with the internet is the direction we need to start focusing on.
Brunecz, Sydney L. (2014). MORE HARM THAN GOOD? WHY SCHOOLS WHO TAKE A ZERO-TOLERANCE STANCE ON CYBERBULLYING CAUSE MORE PROBLEMS THAN SOLUTIONS. Journal of Law, Technology and the Internet, 13.
This law journal article focuses on the lack of federal legislation for cyberbully laws (3). As of now, the states are in charge of creating and enforcing these regulations within school boundaries. Schools are implementing zero tolerance policies against cyberbullying and taking a strong stance against it. It is a schools’ responsibility to create a safe environment for their students, so they have been given the authority to regulate bullying and cyberbullying from their respective legislatures (8). The article also describes important student speech cases and how the substantial disruption test from the 1969 Tinker case is applied to each case. Cyberbullying has been perceived as an epidemic nationwide and like other previous epidemics, such as drugs and gun violence, schools have been forced to step in and create these zero tolerance policies (6). The rise of teen suicide, mental and health issues, have forced schools and legislation to take a stand and create better and stricter regulations for the online community. Although the Supreme Court has not ruled on any cases involving internet speech or cyberbullying, the states have used Supreme Court First Amendment cases as a preliminary outline in regard to cases of student speech. The location of where the events occur plays a major role of how the schools and authorities should proceed with punishment and action. Any type of traditional bullying on-campus that causes disruption in the school environment is not protected by the First Amendment. However, the issue with cyberbullying is that it is often done through electronic devises off campus or at home. But the courts have become a little smarter on how to address this issue by asking if the off-campus speech was made with the expectation that it could potentially reach school grounds (15). In these cases, the courts can uphold the student’s punishment by the school.
Congress has taken little action to pass federal laws. This article describes two acts that have been introduced, and although neither have been enacted, it is the beginning of the road for better cyberbully laws (7). One act is the Megan Meier Cyberbullying Act and the other is the Adolescent Web Awareness Requires Education Act. These have been developed as a result of public pressure after incidents such as Megan Meier, Phoebe Prince and Ryan Halligan who all committed suicide after online harassment and cyberbullying. It seems as though the general public is taking more seriously the negative impact of cyberbullying than to protect the bullies’ First Amendment rights. This article really explains the overlap of the school and government obligations to protect schools and teenagers while sharing the same concern that it might be overlapping with freedom of speech.
Timestamp: Sun Oct. 21st @8:37pm