The bulk of the cyber-bullying cases that have filled the courts have been cases of students punished for online speech with unpleasant content about teachers or administrators. On Monday, we looked at students using the internet to “bully” other students, and how difficult it is to build federal policy that protects students and protects student speech. Today, we’ll look at how student online speech about teachers and administrators can easily fall under the category of “cyber-bullying.” And how this designation makes it easier for schools to retaliate against student speech they find offensive.
It’s online, so it’s cyber, and it could be considered abusive, but is it bullying?
The term “cyber-bullying” is gaining traction, and its definition, as mentioned in yesterday’s post, is unclear. The cyber-bullying that the Berkman Institute report refers to is a cycle of communication in which the roles of young victims and perpetrators are blurry, as victims lash out and perpetrators are attacked. The application of the term “cyberbullying” to cases of students criticizing, mocking, or insulting teachers and administrators online is reactionary and inappropriate.
Punishment is real.
Justin Layshock (who created a fake Myspace account mocking his principal) “was suspended from high school, turned away from the University of Pennsylvania after first gaining early acceptance, and his family and the high school have been in litigation for several years. Avery Doninger was kicked off of student council (after calling administrators “douchebags” for cancelling an event). Katherine Evans was suspended, kicked out of AP classes, and has “cyberbullying” on her permanent record.
Why the punishment?
In coverage of the Katherine Evans case, a New York Times article quotes an administrator involved who says, “We don’t want teachers to work in fear, looking over their shoulders when they walk to their cars after school.” Howard Simon, executive director of the ACLU of Florida, in response, says “Since when did criticism of a teacher morph into assault?”
The vagueness of “cyberbullying” allows administrators to skirt the requirements of proving that students’ online speech is defamatory or libelous. As, well, everyone, has pointed out, the debate about whether student online speech is protected, is still up in the air. This space gives frustrated school administrators opportunity to punish students with support from the courts.
One step in the right direction
The reality of the punishment, the overreach of the schools, the vagueness of the terminology all underscore the need for active protection of students’ speech rights. One good result of the Doninger case has been a Connecticut bill proposed by state Senator Gary D. LeBeau which would “prohibit school authorities from punishing students for the content of electronic correspondence transmitted outside of school facilities or with school equipment, provided that such content is not a threat to students, personnel, or the school.”
The law would create a “bright line” between the state and students’ online expression. As concern for cyberbullying grows, care must be taken in writing laws that closely define cyberbullying. In an article at SPLC, Kathleen Fitzgerald writes:
Ronald Collins of the First Amendment Center in Washington, D.C., said that although a lot of people use the phrase “cyber-bullying,” he is not sure as a legal matter what that means and how it is defined. If it is not defined very narrowly, it is almost sure to raise First Amendment problems, he said.
“Is there a difference between bullying and ranting? Is there a difference between bullying and harassment? Bullying and threats? … Unless the law is specifically and narrowly defined, it is an abstraction,” he said. “When abstractions become law, that is a formula for tyranny.”