State Cyberbullying Laws May Be Unconstitutional
State laws that try to protect children from “cyberbullying” face serious First Amendment challenges, despite good intentions, experts told us. An Ark. bill that would update the state’s antibullying statues for the computer age is progressing through legislature, but similar proposals in Fla. and Wash. failed to clear committees. There’s no consensus among the states, and federal legislation is “unlikely,” said John Morris, Center for Democracy & Technology Dir-Internet Standards.
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Bullies are growing more tech-savvy, reaching out to their victims online. About 13 million children said they had been harassed, humiliated or threatened online or by text message -- and more than 2 million told no one, found an Aug. study by an advocacy group, Fight Crime: Invest in Kids. Researchers at the U. of Wis. found that kids kept quiet because they feared losing computer privileges. In Va., an elementary school girl found her e-mail account had been hacked and vicious messages sent to classmates in her name. In other cases, students were sent physical threats by cellphone or MySpace postings.
“A lot of policymakers at different levels are trying to deal with how to codify these behaviors that they know are inappropriate,” said Justin Patchin, a U. of Wis.-Eau Claire asst. prof., “but it’s just difficult without stepping on legal toes.”
A bill awaiting committee action in Ark. would expand the school district antibullying policies to cover harassment “by an electronic act,” whether on or off school grounds. State Rep. Shirley Walters (R) told us her bill was inspired by a 2004 lawsuit by 2 Greenwood High School seniors suspended for criticizing their school -- without anyone -- on their websites. Greenwood, Ark., High School seniors Justin Neal and Ryan Kuhl sued their principal, Jerry Efurd, for suspending them after they posted “violent illustrations” and critical comments about the school on their websites. Kuhl posted a cartoon depicting a crudely drawn school authority figure shooting students at an assembly. In court, school officials argued that the sites’ popularity created a “buzz” that “disrupted” learning. The U.S. Dist. Court, Fort Smith, Ark. ruled the posting protected by the First Amendment.
Although Neal and Kuhl didn’t threaten anyone, Walters said she saw the need for strong, specific language banning cyberbullying. But even in committee hearings, the bill faced opposition. After the Ark. ACLU testified against the bill, Walters agreed to some of their changes, ACLU attorney Holly Dickson told us. The amended version is “better,” she
said: “Rep. Walters wanted a bill that was huge” and that “prohibited” this type of behavior “wherever it originated.” Dickson and Walters agreed on language that “would require that the electronic act be directed specifically at students or school personnel with a malicious intent to disrupt the learning environment with a high likelihood of succeeding,” Dickson said.
The “ACLU certainly supports antibullying policies” and an educational “environment free from serious harassment,” Dickson said: But “we have to put up with a certain amount of insult because of the First Amendment.”
Walters said she expects the bill to pass out of committee by Wed. and go to the floor. She would then pass it on to her district’s congressional representatives, she said. But the Center for Democracy & Technology’s John Morris told us such a bill was “not likely to pass or be taken up” by Congress: “Monitoring schoolchildren’s behavior is a local issue.”
Some states have passed cyberbullying laws, although they could easily be challenged in court, Patchin said. In Ida., legislation passed in 2006 added harassment through “the use of a land line, car phone or wireless telephone” or “data or computer software” or “through a computer, computer system, or computer network” to its antibullying statutes. Utah’s version includes the use of “electronic media” in its bullying definition. Utah also requires schools to “provide training specific to cyberbullying, including use of e-mail, Web pages, text messaging, instant messaging, three-way calling or messaging or any other electronic means for aggression inside or outside of school.” N.J. and S.C. have similar laws.
The Wash. state cyberbullying bill voted down last year was reintroduced by Wash. state Sen. Jeanne Kohl-Welles (D) last week.
With schools and states somewhat “afraid to get involved,” kids are left to fend for themselves in many cases, Patchin said. Websites offering cyberbullying defense strategies have popped up online including BeatBullying.org, iSAFE.org and Patchin’s Cyberbullying.us. In the absence of widespread, uniform legislation, Patchin and research partner Sameer Hinduja are “just suggesting that schools to try to deal with informally” using a “community approach to sort of work this out, much like in traditional bullying,” Patchin said.