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    Karina Lopez
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    Cyberbullying vs. First Amendment

    “The world would be better off without you…,” that was the last heartbreaking message that thirteen-year-old Megan Meier, victim of cyberbullying, received before she hung herself with her belt and was found in her closet on October 16, 2006 (Sumrall,19). The term cyberbullying has been coined to describe online harassment using any type of electronic device with the intention to cause emotional distress (Hudson,15). Multiple health studies have shown that at least one third of teenagers have reported being victims of online harassment (King,5) and this has contributed to major depression, anxiety and potentially lead to suicide. The accessibility and speed that the internet provides is the perfect shield for perpetrators to bully people with safe anonymity and has made it challenging for schools and lawmakers to ensure the safety and protection of the youth. Recently, there have been high profile cases such as Megan Meier that have raised public awareness, also Ryan Halligan who was thirteen at the time of his suicide after being bullied online, or Phoebe Prince who was called a “slut” and “whore” on Facebook and tragically ended her life (Brunecz,7). Such cases have caused cyberbullying to be perceived as a nationwide epidemic and like previous epidemics, for example drugs and gun violence, it has been the schools who have been forced to step in and create zero tolerance policies (Brunecz,6). Legislation in different states have set some vague laws, however there has been concern on whether regulating what students post on public forums, especially outside of schools, infringes upon the right to freedom of speech. Current laws are failing to protect victims of cyberbullying and more action is needed. The constitutionality of the First Amendment has provided a limitation for current lawmakers to create and enforce laws on cyberbullying. However, “fighting words, true threats, obscenity or speech that incites illegality” (Sumrall,8), is not protected under the First Amendment and legislation needs to specifically put cyberbullying under that category to identify proper punishment.

    Under the First Amendment, “fighting words are defined as those which by their very utterance inflict injury or tend to incite an immediate breach of peace” (Sumrall,8). The definition of cyberbullying is not clear and under current laws in several states, this had led to confusion and inconsistency. Traditional verbal bullying is defined as “any communication that is not a true threat of physical harm, but instead goes only so far as to offend, demean, ridicule, embarrass, harass or intimidate others” (Hostetler,2) and in such cases, courts have been able to clearly stipulate that this type of speech is definitely not protected under the First Amendment. Schools have also been able to fully address and discipline bullies within their jurisdiction when the bullying happens on school grounds. In traditional harassment cases, defamation can be used to prove that a “false and defamatory statement concerning the plaintiff has been made” and could potentially endanger their reputation (Manuel,14). This does not aid in cases of cyberbullying because the defendants can simply say that they are just sharing an opinion and is not defamatory, which is still protected under the First Amendment (King,9). Laws on criminal harassment and stalking are also tricky to apply to cyberbullying cases due to the fact that most cyberbullies in schools are minors and criminalizing minors is difficult plus does not solve the root of the issue.

    It is not only the lack of concrete cyberbully laws that contribute to the problem but the fact that cyberbullying usually takes place outside the school, at home on private electronic devices and posted on public pages or forums. This is where the fine line blurs and the friction with free speech becomes a real restriction. How do the government and school authorities use harassment posted online in the privacy of a home or on private devices, to reprimand cyberbullying? The issue of off-school campus versus on-school campus bullying is a palpable barrier in providing a clear definition of cyberbullying. The jurisdiction of where the bullying takes place plays a large part in traditional bullying cases but is hard to define in online environments.

    The Supreme Court has yet to rule on a cyberbullying case, and this is a vital reason for the deficiency of specific and concise cyberbullying laws. There have been many cases in lower state courts that have been confronted by the conflict of freedom of speech at schools. Past Supreme Court cases regarding student speech has served as crucial guidelines for recent cases (Brunecz,10). One of the oldest and most important cases that set precedence for students’ freedom of speech is the Tinker v. Des Moines Independent Community School district case which successfully established the “substantial disruption test” (Brunecz,11). This landmark case, dating far back in 1969, involved students wearing black armbands to school in protest of the Vietnam War. The school feared a riot and proceeded to suspend them. The court ruled in favor of the students stating that “the political expression did not materially and substantially disrupt school operations, nor did it create a reasonably foreseeable threat of doing so” (Hostetler,4). The Supreme Court felt that unless it “interfered with the school operations and the rights of others, it was protected under the First Amendment” (Manuel,20). Although this case set important parameters, the irregular application of the Tinker substantial disruption test and the lack of defining what a “material and substantial disruption” exactly is, has made it difficult to apply to subsequent student speech cases (Brunescz,16).

    One such case ruling in favor of freedom of speech on the internet was in Layschock v. Hermitage, when a student, Justin Layschock, created a website, accessible to many students and faculty, insulting the school principal. The court upheld that it did not pass the “substantial disruption test” and that the student’s actions were off-campus therefore out of reach of school dominion (Sumrall,8). In another case that reflects a more modern setting with cyberbullying was J.C. v. Beverly Hills Unified School District, where the court chose to protect a student’s freedom of speech for posting a YouTube video ridiculing a fellow classmate. The California court said the situation caused minimal disruption and that they “could not discipline a student for speech simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over harmful comments” (Manuel,23). This case is particularly important because it demonstrates a lack of protection to student’s emotional and mental distress. In a recent New York case, People v. Marquan, a sixteen-year-old “was prosecuted for posting sexual information and photographs of classmates” but later appealed on basis of infringing his First Amendment right. In an attempt to apply an existing cyberbully statute, “the court struck Albany County’s cyberbullying law as too broad and vague” (Hudson), as the decree included any electronic communication done with the intent to threaten, abuse, or inflict significant emotional harm which, in their view, could even include ordinary yelp reviews.

    In 2011, the case of Kowalski v. Berkeley County schools, was with student Kara Kowalski who created a social media page that ridiculed another student Shay N. for having herpes, and it was a page that was seen by hundreds of students. After the victim was unable to attend school because it caused her emotional distress, Kowalski was suspended. Kowalski then proceeded to sue the school for violating her freedom of speech (Hostetler,12). The court ruled in favor of the school, stating that although Kowalski used her private 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 (Hostetler,13). This particular case is exceptionally groundbreaking because although it had no physical or substantial evidence of the harm as some of the other cases required, the court ruled by common sense assumptions and foreseeable effects.

    Given the ambiguous system, the states have taken matters into their own hands to create laws specifically targeting cyberbullies. Currently, there are forty-four states with bullying statutes but only twenty of them directly address cyberbullying (King,14). Some states have also applied cyberstalking statutes which state that it is prohibited to “use the internet or electronic-communication tools to repeatedly harass or threaten an individual” (King,11), however the plaintiff must prove that there is substantial or credible proof that a real threat actually exists. States addressing the issue have attempted to provide a clearer definition of cyberbullying and are also holding school districts responsible for creating policies within the school jurisdiction. For example, Oregon defines cyberbullying as the “use of any electronic communication device to harass, intimidate or bully and requires that all school districts form policies against cyberbullying” (Manuel,24). Taking a firmer approach, Pennsylvania has proposed bills to make cyberbullying a criminal offense. Their current statute states, “that schools shall not be prohibited from defining bullying to encompass acts that occur outside a school setting…or acts that substantially interfere with a student’s education, creating a threatening environment or substantially disrupting school operation” (Manuel,25). Florida and Illinois have created similar statutes that define cyberbullying as prohibited “on campus, during school-sponsored activities, through technology accessed via computer or computer network within the scope of the public school, or even off-campus using non-related computers if the communication substantially interferes with the educational process or operation of the school” (Sumrall,18). However, some states like Oregon or Washington unfittingly limit the behavior to school grounds without accounting for off-campus cyberbullying (Manuel,26). It seems that the states have used the Tinker standard as foundation for the policies involving cyberbullying but lacks uniformity throughout the country.

    Supporting cyberbullying laws on a federal level would provide a much more solid and consistent application all over the nation. Public pressure and notorious cases about cyberbullying have provided a sufficient spark for federal legislation to take action. Referring back to the Megan Meier case, Representative Linda Sanchez of California proposed the Megan Meier Cyberbullying Prevention Act in April 2009 (King,20). The proposition imposes “a fine and up to two years imprisonment for anyone who transmits in interstate and foreign commerce any communication, with the intent to coerce, intimidate, harass or cause substantial emotional distress to a person, using electronic means to support severe, repeated and hostile behavior” (King,20). It also addresses the issue of the jurisdiction of the cyberbullying, which is a big issue in current state laws and regulations. Unfortunately, both Democrats and Republicans equally criticized the bill and deemed it as unconstitutionally restrictive of the freedom of speech (King,21).

    Technology has presented both positive and negative effects in the thriving internet and social media era. One of the most challenging difficulties that schools and the government alike are facing is the lack of clear and concise laws that penalize the cyberbullying behavior in schools. By simply suspending or expelling the offending student, does not solve the main problem and may be infringement of the First Amendment for expressing their opinions online. The use of the substantial disruption test on cyberbullying cases has been proven outdated and inconsistent. Schools have tried forming anti-cyberbullying policies, but it also poses a hurdle because of the strife between off-campus and on-campus cyberbullying. A smarter approach might be to foresee if the off-campus speech could eventually reach school grounds and therefore potentially disrupt school environment. Schools can also provide the means to educate our young generation on the dangers of the internet. Ultimately, the responsibility lies on the federal government who needs to change the First Amendment interpretation of the “fighting words doctrine to include speech that does not occur in a face-to-face scenario”(Sumrall,22) but could potentially have negative psychological effects on the victims. Cyberbullying has become a social problem that must be addressed as a nation with consistent federal laws and uniform school policies to create a safer and more secure online environment for everyone.

     

    Annotated Bibliography:

    Cyber bullying vs. First Amendment

    1. 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.

     

    2. Hostetler, David R. (2014). “Off-campus cyberbullying: First Amendment problems, parameters, and proposal.” Brigham Young University Education and Law Journal, 2014(1), 1-25.

    <u>http://content.ebscohost.com.remote.baruch.cuny.edu/ContentServer.asp?T=P&P=AN&K=95781763&S=R&D=a9h&EbscoContent=dGJyMNHX8kSep7E4zdnyOLCmr1CeqK5Sr6a4SLGWxWXS&ContentCustomer=dGJyMPGqtkiwr65MuePfgeyx44Dt6fIA</u>

      

    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 own computer in the privacy of their her own home, 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.

     

    3. 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.

     file:///Users/karinalopez/Downloads/Bully_fighting_New_Yorks_High_.html

    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 on to say that giving minors criminal records does no good to address the real 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.

     

    4. 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.

    file:///Users/karinalopez/Desktop/MORE_HARM_THAN_GOOD_WHY_SCHOOL%20(1).PDF

    This law journal article focuses on the lack of federal legislation for cyberbully laws (3). As of now, the states have been given the freedom to the school districts to create and enforce 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.

     

    5. Sumrall, Tiffany. “Lethal Words: The Harmful Impact of Cyberbullying and the Need for Federal Criminalization.” Houston Law Review, vol. 53, no. 5, 2016, pp. 1475–1501. http://web.b.ebscohost.com.remote.baruch.cuny.edu/ehost/pdfviewer/pdfviewer?vid=1&sid=d642811f-1d2e-427a-a00b-cfa8a993ce74%40sessionmgr104

     

    6. Manuel, Natasha Rose. “Cyber-Bullying: Its Recent Emergence and Needed Legislation to Protect Adolescent Victims.” Loyola Journal of Public Interest Law, vol. 13, no. 1, 2011, p. 219. http://go.galegroup.com.remote.baruch.cuny.edu/ps/i.do?&id=GALE|A278880774&v=2.1&u=cuny_baruch&it=r&p=AONE&sw=w

     

    Timestamp: Sunday October 28@10:03pm

     

     

     

     

     

     

     

     

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