A look at ‘Cyberbullying & Public Schools’

Tuesday, March 31, 2009

This article is part of an online symposium on the First Amendment Center Online titled Cyberbullying & Public Schools.

School officials, lawmakers and parents all want a safe environment for students. They should also want an environment that nurtures those freedoms enshrined in the First Amendment. In short, safety and liberty are the goals.

In approaching cyberbullying, the question of just how to strike the best balance between the two is the task of conscientious citizens who value security enough so as not to tolerate cyber-harm, and likewise value freedom enough so as not to invite cyber-tyranny.

If we allow the former, we endanger our children; if we permit the latter, we endanger their liberty. But we need not choose between one and the other: We can have the best of both worlds if only we try — and try hard.

Though they may be unable to define it, many parents of school-age children will tell you that they want “bullying” stopped. School officials and teachers agree. And so do lawmakers. Hence, the call for government action to regulate such expression. Of course, whenever government enters into the picture, the First Amendment is necessarily in the frame of things.

By contrast, some see bullying as a fact of adolescent life and feel kids should just tough it out as if bullying were no more than a rite of passage. The problem is that such blasé attitudes can foster an environment hostile to outsiders, or those who are different, or those who are vulnerable. But these are the very people who the First Amendment so often protects from the excesses of the powerful. Thus, the spirit of the First Amendment also counsels us to be attentive to the plight of the powerless.

Considering the questions
In organizing this online symposium, we solicited some of the top authorities in the field to consider the following questions:

  • What is cyberbullying?
  • How, if at all, does it differ from criminal threats?
  • Should the powers of public school officials to regulate off-campus electronic expression be the same as their power to regulate on-campus expression?
  • What limitations does the First Amendment (and its state analogues) place on the powers of government officials to regulate cyberbullying?

To address such questions calls into play a variety of policy and legal considerations that bear, on the one hand, on our desire to keep students safe and, on the other, to do so in a way consistent with First Amendment law and values. To do this effectively has less to do with ideological posturing than with a good-faith desire to solve a vexing problem. That desire was the motivation in organizing this symposium.

Cyberbullying: what is it?
The derivation of the word “bully” is a sign of the problem. Originally, it referred to someone who was a brother, a dear friend, or a buddy. By that measure, bullying was akin to good-natured teasing, joking around, or friendly horseplay. In time, however, the word assumed a different meaning, namely, a course of action akin to intimidation. By that criterion, a bully was a ruffian, someone who was overbearing and whose conduct frightened others. (See Ernest Weekley, An Etymological Dictionary of Modern English, vol. I, p. 215 (N.Y.: Dover Publications, 1967), The New Shorter Oxford English Dictionary, vol. I, p. 298 (N.Y.: Oxford University Press, 1993.)) The etymological evolution of the word, then, itself indicates why we sometimes have trouble separating bullying that is friendly from bullying that is fierce.

The “cyber” component indicates the medium by which bullying messages are conveyed. That medium can be any electronic technology from a cell phone to a pager to Internet technologies. Such messages can be conveyed by e-mail, text-messaging, in chat rooms, or on social-networking sites like MySpace and Facebook. Their electronic content can be textual, or photographic, or aural, or all of these. The question is: How, if at all, does the medium affect the message? Does electronic communication compound the problem of bullying? Or might it allow for the possibility of mitigating the problem?

A review of the literature and the laws concerning this topic suggest that cyberbullying has some or all of the following essential characteristics:

  • Electronic
  • Often anonymous (e.g., screen names replace real names)
  • Repeated
  • Defamatory
  • Harassing
  • Derogatory or offensive
  • Bigoted
  • Demeaning
  • Exclusionary
  • Revelatory (making secrets or private facts public).

In addition, cyberbullying must be intentional or willful. Typically, it is communicated peer-to-peer. The concept has also been applied to student anti-authoritarian expression, as when a student communicates derogatory messages about a schoolteacher, coach or principal. (See, e.g., Shaheen Shariff, Confronting Cyber-Bullying (Cambridge University Press, 2009), pp. 8, 15, 48, 114-116.) Though anti-authoritarian expression can be offensive, defamatory, obscene or even threatening, it seems odd to place it under the rubric of cyberbullying. For one thing, the power dynamic between a student and a school official is of an entirely different order than that between a student and other students. That power dynamic is a key component of any notion of cyberbullying. Accordingly, it might be prudent to exclude anti-authoritarian student expression from the definition of cyberbullying, at least without special circumstances.

Nonetheless, some school officials disagree and have categorized (perhaps without reflection) such forms of anti-authoritarian expression as cyberbullying. (See “Student Fights Record of ‘Cyberbullying’,” New York Times, Feb. 7, 2000.)

Cyberbullying & unprotected expression
Insofar as cyberbullying is tantamount to other forms of unprotected expression, it can and already is regulated by law. Thus, if cyberbullying is legally obscene, state and federal laws already bar such forms of expression. Likewise, if such expression is defamatory, civil remedies exist to correct such wrongs against a person. If the expression is actually intimidating or amounts to a true threat, existing civil and criminal laws govern it.

In all of the above ways and others, it is apparent that much of what is labeled as cyberbullying is already regulated by law no matter where it occurs. In such instances, it might be best to describe the prohibited expression accordingly. For example, when electronic means of communication are willfully used to place another in real and imminent fear of his or her safety, a criminal threat has occurred. Describing such communication as cyberbullying both diminishes the gravity of the wrong committed and creates confusion about the true nature of that wrong. And as discussed below, how expression is categorized also defines the government’s authority to regulate certain forms of expression.

Regulating cyberbullying on and off campus
As the Supreme Court’s rulings in student free-speech cases indicate, school officials have wide latitude in regulating schoolhouse expression. Of course, such rulings — from Tinker v. Des Moines Independent Community School District (1969) to Morse et al. v. Frederick (2007) — speak solely to the constitutional issues at stake: namely, questions of First and 14th Amendment law bearing on freedom of expression. They do not, by contrast, speak to the underlying authority that is required before any government official, including school officials, can act. That is, before school officials can regulate off-campus expression like cyberbullying, they must first be authorized by state law to do so. Hence, questions of statutory authority precede questions of constitutional law, be it the law of the state or federal constitutions.

As the resource materials in this symposium reveal, statutory law in this area does essentially three things: (1) it defines what authority, if any, school officials have to regulate off-campus expression; (2) it delegates certain powers to school officials and requires them to adopt certain rules and/or policies; and (3) it defines the kinds of off-campus student expression that can be regulated. In all of these instances, then, before there is any constitutional question, there is first a statutory one. Today, when lawyers and government officials are so obsessed with constitutional-law considerations, it is easy for them to be oblivious to the obvious — i.e., exactly what has the state authorized school officials to do?

First Amendment considerations
Constitutional considerations, whether of the federal or state kind, raise any number of questions when it comes to attempts by school officials to regulate off-campus expression that is otherwise duly authorized by law. Such considerations would include the following questions:

  • Is the law unduly vague?
  • Is it legally overbroad?
  • Is it content-neutral, both on its face and as applied?
  • To whom is the speech directed? (Student to student? Student to teacher?)
  • What is the character of the communication? (Religious?)
  • What is the context of the communication? (Social, political?)
  • What is the gravity of the harm allegedly committed and how directly is it linked to the communication in question?
  • Would the same off-campus expression be permissible if it were not communicated electronically?
  • How old are the students whose expression is regulated?
  • What, if any, is the nexus between the off-campus expression and any alleged on-campus harm or disruption?

Though the power of school officials to regulate K-12 student expression on campus is reasonably broad if authorized, there are still limits. For one thing, it is not at all clear that regulation of off-campus expression, even if statutorily authorized, is to be treated the same as on-campus expression. Consider, for example, the following two statements, one from the U.S. Supreme Court, the other from a federal district court:

“[W]hile children assuredly do not shed their constitutional rights at the schoolhouse gate, the nature of those rights is what is appropriate for children in school.” Morse et al v. Frederick (emphasis added)

“Speech within the school that substantially interferes with school discipline may be limited.” Beussink v. Woodland R-IV School District (E.D. Mo., 1998) (emphasis added)

Even when school officials are legally authorized to regulate off-campus expression, the constitutional considerations are likely to be different from those concerning on-campus expression. Otherwise, school officials could all too readily usurp parental rights. Moreover, one can readily envision certain forms of student expression that might readily be regulated on campus but might not so easily be regulated off campus. Consider the following examples:

  • Twenty high school students meet after school at a public park not near their school and play basketball. The game has no connection to the school. During the game several students say highly derogatory things about a fellow student who is not present.
  • A dozen middle school girls meet on Saturday at a shopping mall several miles from their school. Their social gathering is not connected with any school activity. Several of them say offensive things (that are not synonymous with threats or defamation) about their gym coach.

In such situations one would not think that the domain of teacher prerogative would or should extend to regulating such expression, though admittedly derogatory or offensive. This is so even though the same kinds of expression could surely be regulated on campus. Additionally and as previously noted, it is doubtful whether the facts in the second hypothetical amount to “bullying.”

Consider, as well, the following hypothetical:

  • A Christian high school student sincerely believes that homosexuality is a sin and that her duty as a faithful believer is to condemn such practices. To that end, she posts the following on her social Web site: “Homosexuality is a sin! Homosexuals will go to Hell unless they change their ways. God does not forgive those who do not repent.”

Now if such expression were on campus, say on a T-shirt, a school might be able to regulate it for any number of reasons, especially if the shirt caused a disturbance at school. But does the same logic apply when such expression occurs off campus and in cyberspace?

Finally, consider one more hypothetical:

  • A high school student posts derogatory, but non-defamatory, comments about his civics teacher, who he believes is a poor teacher. Such sentiments are shared by a large number of students, as evidenced by teaching evaluations over the years. To protest such “incompetency,” the student posts the following on the RateMyTeacher.com Web site: “Mr. Smith sucks! He’s a total waste. He should do us all a favor and get lost.” (Assume, hypothetically, that the site allowed such expression.)

Of course, the school could be within its rights if it banned such verbal forms of on-campus expression or their print counterpart in the school newspaper. (Here again, while such truthful information might be offensive, it does not really fit the definition of cyberbullying.) All said, is the case for regulation so clear if the expression occurs off campus and in cyberspace? One court thought not, even when the facts were far more egregious. (See A.B. v. State of Indiana (Ind. App., 2002; the ruling was based on the state constitutional guarantee of free speech).) Furthermore, it is not entirely clear that such off-campus cyberspeech could be regulated even if the student expression were instead peer to peer.

Policy considerations
To say that cyberbullying is a problem that invites some kind of government response is not to say that such a response need always be censorial or that it need be solely governmental. That is, there is much middle ground here where concerned parties can and should take action. First and foremost, teachers and parents need to create both an atmosphere and an attitude conducive to mutual respect. Educating students about their First Amendment rights and responsibilities should be part of any such efforts. Next, school officials should consider what meaningful options are available to effectively counter cyberbullying as an alternative to censorship. Such exercises may end the problem, or at least diminish it, while at the same time teaching students an important First Amendment lesson. In the memorable words of Justice Louis Brandeis: “the remedy to be applied is more speech, not enforced silence.” (Whitney v. California, 1927.)  Third, what technological options are available in the private sector that might help to curb actual hurtful expression? The last consideration — i.e., “the marketplace option” — is an important one since the First Amendment is limited, by its terms and judicial interpretation, to government action.

There is another important consideration — parental responsibility. Though the temptation is great, parents ought not to forsake their parental rights and responsibilities by delegating them to some “school nanny” charged with monitoring off-campus expression. Individual and familial autonomy are too precious to abandon simply because the government is willing to step into the breach.

The articles in this symposium, and the related materials, explore the points raised above and still others. The contributions of some tend more to the safety side of the equation, while others lean more toward the liberty side. Collectively, however, they offer the reader ample information by which to make an informed judgment about the nature and scope of the problem and what might be done to curb it, consistent with First Amendment principles. In that respect, this online symposium is akin to the old town-hall meeting, which is as good a metaphor as any for free-speech freedom.

Ronald Collins is a scholar at the First Amendment Center in Washington, D.C.