Protecting kids while protecting free speech
This article is part of an online symposium on the First Amendment Center Online titled Cyberbullying & Public Schools.
If Wikipedia is to be believed, cyberbullying involves “the use of information and communication technologies to support deliberate, repeated and hostile behavior by an individual or group that is intended to harm others.” Cyberbullying has eclipsed sexual predators on the Internet as the number one concern of policymakers, parents and kids themselves. It is a growing phenomenon taking many forms and is perpetrated on a growing range of platforms, devices, sites and Web-based services.
With the advent of this new technology, schoolyard behavior such as teasing and starting rumors can continue to affect a child’s day long after the school day is over. Text and instant messaging, Twittering and MySpace postings are the new playground for adolescents. The increasing use of technology to bully creates a dilemma for parents, legislators and educators trying to deal with the cyber-savvy schoolyard bully who, rather than picking a physical fight, now uses MySpace.
One third of teens using the Internet have experienced online harassment (Amanda Lenhart, “Cyber-bullying and Online Teens,” Pew Internet & American Life Project, June 27, 2007, at 1). This is a growing concern for families dealing with the emotional impact of bullied children and it is also a problem for legislators trying to take action to stop the harmful effects of this behavior.
Cyberbullying, not surprisingly, has the greatest impact on teens spending a large portion of their time online and teens creating Internet content about themselves. A Pew Internet and American Life study found that teens “who share their identities and thoughts online are more likely to be targets than are those who lead less active online lives” (Lenhart).
The Centers for Disease Control and Prevention studied cyberbullying and found, “It’s difficult to say how severe online harassment is as a public health issue, because a posting or e-mail that might upset some children is shrugged off by others” (FoxNews.com, “CDC: Cyber-bullying Growing Public Health Concern,” Nov. 28, 2007). This is not to say that cyberbullying does not cause problems. While some students report no impact from online harassment, cyberbullying can have a negative effect on others. “Consistent with previous research, youth who are harassed online report a mix of psychological problems. They are significantly more likely to be targeted by victimization offline” (Michele Ybarra et al., “Examining the Overlap in Internet Harassment and School Bullying: Implications for School Intervention,” Journal of Adolescent Health 41 (2007) S49). Some students may be upset because of what is said to them online and these feelings may carry over into their performances at school or interactions with classmates.
Legislators and educators need to be aware that teasing or making mean comments is different than actual harassment. Authorities shouldn’t react to middle school drama with intense regulation but should be proactive and try to prevent the conflicts. Criminalizing cyberbullying won’t solve the problem.
News headlines make bad laws
In the past few years, several high-profile cases emerged and created a loud cry for legislation to punish cyberbullying rather than address the actual problem. Vermont, for example, recently enacted anti-cyberbullying legislation after Ryan Halligan, a 13-year-old Vermont student was taunted online and at school and committed suicide in 2003.
The most high-profile case is that of Megan Meier, a troubled Missouri teen who took her life after being harassed online by the mother of a classmate pretending to be a teenage boy. This case may be more unique than what most teens face because the person behind the bullying was an adult. What is also different is that Lori Drew, the perpetrator of the computer hoax, was not charged with a crime related to her bullying behavior; instead, she was charged under a “federal statute designed to combat computer crimes that was used to prosecute what were essentially abuses of a user agreement on a social networking site” (Jennifer Steinhauer, “Verdict in MySpace Suicide Case,” The New York Times, Nov. 26, 2008). The prosecutor in the Meier case may have been overreaching by using this computer hacking law to punish bullying.
There are additional high-profile examples of cyberbullying contributing to the psychological problems of teens, but a handful of tragedies should not be used to quickly push through laws that may punish but not eradicate the problem of cyberbullying.
Respond quickly — legislate slowly
Lawmakers should proceed cautiously before enacting legislation governing off-campus speech that does not “substantially interfere” with school activities. School districts have the most authority to intervene with cyberbullying when the actions occur on school property or on the school computer network. Currently, some states have adopted laws that criminalize cyberbullying or use school discipline codes to punish students for online behavior occurring off campus and after school time.
States with higher profile cases tend to have more stringent anti-cyberbullying legislation passed in reaction to the publicity of a cyberbullying case. If there is going to be legislation at all, there should be a national definition of the problem and a uniform way to address it. States must be aware that there is potential danger of infringing on free-speech rights of students through current and proposed legislation.
There could also be jurisdiction problems from criminalizing cyberbullying in some states, but not in others. In the Megan Meier case, Missouri prosecutors determined that Lori Drew had not violated any local laws, but federal prosecutors used the location of the MySpace servers to charge Drew in California. If bullying occurs via social-networking sites in states without cyberbullying statutes, students might face disciplinary action or criminal charges based on the server location.
U.S. Rep. Linda Sanchez, D-Calif., introduced legislation in 2008 to criminalize cyberbullying. The Megan Meier Cyber-bullying Prevention Act called for a fine or imprisonment of up two years for cyberbullying (H.R. 6123, 110th Cong. 2nd Sess. (2008)). This legislation, which was referred to a House subcommittee but failed to pass, ensured that only “severe, repeated, and hostile behavior” should be punished. The bill, however, went too far by making imprisonment a punishment for cyberbullying.
Do we really want to criminalize what is, sadly, fairly normal adolescent behavior? Lawmakers need to be cautious not to criminalize posting embarrassing pictures or spreading rumors, and must not restrict speech any more than necessary. Legislation should focus on alternatives to punishment and encourage educational solutions.
Technology as a problem and a solution
Text messaging, social networking and online video sharing extend the boundaries of the schoolyard. As students adapt to changing technology, cyberbullying will continue to be a problem. Advances in technology allow students to bully others after school, but the technology also improves students’ knowledge. Students need to learn better digital citizenship and how to use technology not as a weapon but as a resource.
The Internet industry is working to do more than just monitor Web sites and take down offensive material. Industry leaders are involved in groups to evaluate the problems and work with researchers and others to discuss solutions. There are software programs available for parents to keep track of what their kids are doing online and most social-networking and video-sharing Web sites have policies against harassment and ways to report abuse: “Tech companies are releasing new software products that monitor and police kids’ Internet use, helping them avoid cyber-bullying and letting parents know when it’s occurring” (Jennifer Lawinski, “Cyber-bullying: Parents, Tech Companies Join Forces to Keep Kids Safe,” Fox News.com, Oct. 13, 2008). Wider use of such programs could provide a technical rather than legislative solution to thwart cyberbullying.
Legal or technological fixes alone, however, won’t eliminate cyberbullying. There needs to be increased industry efforts, increased education for students and increased resources for parents to ensure their families are practicing web safety.
Alternatives to state regulation — creating a culture of responsibility
There are many non-government alternatives to regulation. Parents, educators, government officials and students can work toward a culture of responsibility where everyone takes on differing, but overlapping areas of responsibility. It is more useful to educate students to make wise choices online than to regulate every aspect of their lives. Such an approach would protect free speech. In addition, teaching digital citizenship skills can have a positive impact on youth, and media-literacy training can help kids learn how to block harmful messages, protect personal information and report abuse.
Parents play a key role in this culture of responsibility because they need to learn how children use technology and need to be aware of problematic behavior. The CDC suggests, “For years parents and caregivers have been asking their children where they go and who they are going with when they leave the house. They should ask these same questions when their child goes online” (CDC Features, “Electronic Aggression: Emerging Adolescent Health Issue,” www.cdc.gov/Features (Electronic Aggression, Aug. 28, 2008)).
If there are serious problems with cyberbullying, there are also serious civil consequences available. If harassment occurs to such a degree that a student’s reputation is ruined or he suffers severe emotional consequences, the bullied student could bring a defamation action or sue for intentional infliction of emotional distress.
President Barack Obama’s administration should call for funding to be used for cyberbullying prevention, and the president should call an online-safety summit to learn more about cyberbullying and promote a national education campaign to eliminate it.
It is possible to protect kids while protecting speech. With the right legislation aimed at education and technological solutions, the harmful impact of cyberbullying can be reduced. Together, educators, legislators, the new administration, parents and students can create a culture of responsibility where free speech is preserved but cyberbullying is minimized.
Stephen Balkam is the founding CEO of the Family Online Safety Institute, an international organization whose aim is to identify and promote best practice, tools and methods in the field of online safety. The institute’s work includes the development of the ICRA family of products and services, online safety events, public policy and public education. Prior to this, Balkam was the founder and CEO of the Internet Content Rating Association and the Recreational Software Advisory Council, where he led the creation of the world’s leading content description system for digital content. In addition, he has run three other nonprofit organizations and his own consultancy business. In 1998 he won the Carl Bertelsmann Prize in Gutersloh, Germany, for innovation and responsibility in an information society. He also was named one of the Top 50 UK Movers and Shakers by Internet Magazine in 2001.
The First Amendment Center is an educational organization and cannot provide legal advice.
Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.
Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.
John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.
Dr. Charles C. Haynes is director of the Religious Freedom Center at the Newseum Institute.. He writes and speaks extensively on religious liberty and religion in American public life.
David L. Hudson Jr. is an expert in First Amendment issues and a regular contributor to the First Amendment Center's website. Hudson teaches law and was a scholar at the First Amendment Center.