Tasteless jokes, venal threats & freedom of expression

Tuesday, March 31, 2009

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

Any book entitled Confronting Cyber-Bullying would be welcomed eagerly by those to whom this volume is addressed — schools, families, government policymakers, and students. The subtitle — What Schools Need to Know to Control Misconduct and Avoid Legal Consequences — enhances that potential appeal. As the first substantial study of a disparate and perplexing set of legal and policy issues, Professor Shaheen Shariff’s book is not simply the only game in town at this still early stage; it also does something that has rarely been done in the field of cyber-law — analyzes issues and potentially apposite legal principles before a torrent of case law has overwhelmed the process. Here, for once, timely and cogent scholarship precedes litigation, rather than (as has usually been the case in the Internet age) running frantically to catch up to where the courts have been. This volume, authored by a professor of education at McGill University, is thus a most welcome innovation for those of us who savor the legal challenges of electronic and digital communication.

Central challenge of cyberbullying
Shariff’s book not only analyzes carefully the nature of this rapidly emerging challenge to civility and even safety in the adolescent community, but it also offers specific guidelines for each of the major players in this novel drama. To that extent, it is immensely helpful to all who are or should be concerned about cyberbullying and who seek responses or antidotes. Yet this timely and perceptive study suffers — and falls short of its full promise — quite simply because it seeks to do too much. The author addresses the central challenge of cyberbullying, for example, in terms of several independent variables — geography, technology and institutional setting most notably — that make generalization far harder than a narrower focus would have allowed.

One illustration of the multi-variate challenge may illustrate this concern. Examples (both of bullying and of institutional response) are drawn not only from different countries but even from disparate continents, despite vast differences in values, traditions, educational and (of course) legal systems. The absence of commonalities among these different settings vastly complicates the author’s task, and accordingly limits the potential value of the book for a reader who seeks guidance within a particular culture.

From a Canadian scholar who is examining the earlier and far wider incidence of cyberbullying south of our common border, one would hope to derive principles and precepts that would cover at least this much of North America. Yet despite our close alliance and shared heritage, stark differences between the U.S. and Canada in our respective approaches to free speech and press confound generalization even within this otherwise homogeneous region. U.S. First Amendment law, to cite one notable contrast, treats “hate speech” (to which cyberbullying is closely analogous) as fully protected, short of true threats and fighting words, while our neighbors to the North regularly impose heavy sanctions on virulent anti-Semites and other purveyors of hateful messages.

Quest for commonalities
If generalization is so elusive even between communities that span Niagara Falls, the Detroit River or Lake of the Woods, how much harder is identifying common themes and possible legal solutions across continents and far more disparate legal systems? The author’s quest for commonalities despite such differences is laudable, even if her choice of terrain within which to explore cyberbullying confounds the task. For similar reasons, the interweaving of experiences, policies and court cases from the pre and post-Internet eras provides useful background, but also frustrates the reader’s quest for a guiding set of principles. Understandably, the author seems ambivalent with regard to certain proposed remedies — the Deleting Online Predators Act, for example — that might pass muster in some systems but not in others. Yet, to restate the positive assessment, the fact that such issues are raised at all in this book has great value and evokes appreciation.

In the end, those of us who seek (and may offer) guidance for U.S. school officials, lawmakers, courts and families will find valuable guidance in this volume but not necessarily ultimate answers that comport with First Amendment principles. There is some clarity at both ends of the spectrum: On one hand, students who use personal off-campus Web sites to post messages that prove uncongenial to the principal should not be subject to school sanctions — though courts have less readily espoused that principle than they used to in regard to unwelcome print messages. On the other hand, posting true threats that imperil a teacher or fellow student (or the principal) are no freer from official sanction online than they would be in print.

From tasteless jokes to venal threats
The challenge of addressing cyberbullying, as a growing number of states have sought to do through recent targeted legislation, is the range of situations that lie between the tasteless joke and the venal threat. When the medium is the Internet, there may be reason for greater concern than with regard to print messages because the Internet’s anonymity and its intrusiveness may evoke fears that no print message is likely to do. Yet the assimilation of tasteless and even disturbing digital messages with true threats conveyed in electronic form is as tempting as it is dangerous. Much of the material that might be targeted by some of the early cyberbullying statutes should be viewed as First Amendment protected, however substantial the difference between the media.

Those who shape law and policy at the national and state levels will be under increasing pressure to intervene on behalf of cyberbullying victims. Where current laws imperfectly fit the case, there will be pressure to stretch such provisions — much as federal prosecutors in California did in charging Missouri resident Lori Drew with computer fraud for falsifying her identity in breach of MySpace’s terms after her postings apparently led to the suicide of a depressed teen neighbor. Such stratagems might forestall the need for more precisely applicable statutes but risk not only contorting such laws from their intended purpose but also making bad free-speech law in a context where raising a First Amendment defense is difficult.

The other (and preferable) approach is crafting statutes specifically aimed at cyberbullying. Such law-making must, however, be far more precise and more sensitive to free expression than the early experience adopting rather crude sanctions would suggest. However much urgency lawmakers may feel in states that have already seen their share of cyberbullying, they can hardly avoid the rigors of potentially (and even inadvertently) punishing protected speech. That the objects of such laws may be rude and foul-mouthed adolescents whom we wish could be seen but not heard does not diminish the constitutional hazards.

In summary, this book offers a most valuable and timely contribution to the burgeoning (though still inadequate) literature on electronic and digital messages that demand different treatment from their print counterparts. Much more remains to be written on the special circumstances not only of cyberbullying, but of a host of other unwelcome computer-generated messages. One hopes that Dr. Shariff will be a major contributor to future analyses of these issues; especially welcome, in fact, would be a study devoted chiefly if not exclusively to Canadian issues — recognizing, for example, that the Web site of at least one virulent anti-Semite was shut down by Canada’s federal civil rights agency for reasons that seemed compelling to our northern neighbors, but which clearly would not justify comparable constraint under our First Amendment standards.

Robert M. O’Neil is the director of the Thomas Jefferson Center for the Protection of Free Expression and professor of law emeritus and university professor emeritus at the University of Virginia. His latest book is Academic Freedom in the Wired World: Political Extremism, Corporate Power, and the University (Harvard University Press, 2008).