After the vast publicity surrounding the suicides of cyberbullying victims, such as Phoebe Prince and Tyler Clementi, legislators began focusing on solving this problem and deterring future occurrences of these devastating tragedies.  They believed the solution to be in the form of cyberbullying laws, which could make online statements subject to academic disciplinary proceedings.  Several states have enacted such laws, which give school officials the authority to take action against bullying outside school grounds.  The reason why authority was given specifically to school officials is that children who are being bullied tend to perform worse academically, and when cyberbullying affects students’ performance in school, the schools should have the ability to get involved.

While it is critical to take action to prevent these types of hate crimes, it is also essential to not infringe on First Amendment rights.  School board members argue that there is no free speech violation because these words negatively impact other students and hurt their feelings.  However, schools need to be careful when enforcing this law, as there is not clear precedent yet on the matter.  Even though the Second Circuit upheld the punishment of a high school girl after she called school officials “douchebags” online, past cases, such as Tinker v. Des Moines, in which three students wore black armbands protesting the Vietnam War, have indicated that student free speech is favored.  However, with the invention of the internet and websites such as Facebook and YouTube, where people are at liberty to post whatever they wish, the balance between free speech and protecting the public has become difficult to strike.

The bottom line is that finding a balance is easier said than done, but there are certainly measures to be taken that lead in the right direction.  To begin, the law should be as specific as possible and provide definitions to vague words such as “bullying,” as this word can be read subjectively, making it difficult to enforce the law.  Broader laws with vague definitions also have a higher likelihood of not being enforced by courts or declared unconstitutional.  For instance, Connecticut’s new cyberbullying law is relatively expansive, so it is uncertain whether enforcement will be an issue for the courts.  Furthermore, a more precise law provides predictability and consistency, and students should be aware of the legal boundaries of their actions ex ante.

Also, another option would be to focus more on the grass roots level and educate children at a young age about the power of the internet and the dangers that can result from freely expressing one’s feelings online.  With the internet being a new technology, adults might have previously been unsure of how to properly expose their children to the internet world, but now we can begin to be more cautious of allowing children to surf the web at their leisure, unaware of their consequences.

Either way, it is an incredibly sensitive issue, and we eagerly await the Supreme Court’s decision on this controversial topic.

– Marina Visan

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3 Responses to Cyberbullying Laws: Targeting Bullies and (Possibly) Their First Amendment Rights

  1. Virginia Maynard says:

    The stories of cyber-bullying are sad in their details, and frightening in the likelihood that they are just samples of a greater number of incidents. As the internet has become the cyber-playground for the modern era, I think Nadia raises an important point about the difficult issues surrounding the reach of school administrators’ regulation of students behavior. Though arguably Morse v. Frederick extended the ability of schools to regulate outside of school grounds, it remains unclear how strictly schools may regulate student speech, particularly in high school. The current Supreme Court has evidenced significant deference toward the cause of free speech, even when it causes emotional harm in its recent decision Snyder v. Phelps.

  2. JL says:

    Marina,

    Very interesting blog post. I had a thought regarding your comment about increased parental caution:

    The FTC regulates websites that collect personal information from children under the Children’s Online Privacy Protection Act (COPPA). While the current COPPA Rule requires that these websites acquire parental consent before children may access their content or provide personal information, many children falsify parental consent in order to gain website access. The FTC recently proposed amendments to its COPPA Rule that would mandate enhanced parental consent mechanisms for these websites to better ensure validity of consent.

    While the FTC’s proposed consent mechanisms are not specifically geared toward preventing cyberbullying, the requirements would unquestionably apply to popular social networking websites that are used for cyberbullying. Because these enhanced requirements encourage increased parental monitoring, perhaps they would also aid in the prevention of cyberbullying on social networking websites.

    See: http://www.ftc.gov/opa/2011/09/coppa.shtm

  3. Nadia Mozaffar says:

    I agree.. I can’t wait until the Supreme Court rules on this issue!

    In addition to balancing free speech and protecting the public, cyberbullying policies also have to properly define how far school officials can reach into the private lives of students. This is an especially difficult balance because we don’t always want schools to discipline students for activities they engage in completely off campus. However, social media websites also allow off-campus activities to interfere with the school environment in a way that they didn’t before.

    Lots of tough questions for legislators!