In the case of USA v. Lori Drew, a court of appeals judge dismissed charges against Lori Drew for cyber-bullying a young girl, which resulted in the girl’s suicide. The judge reviewed the language of CFAA, while mssing the point: that Lori Drew committed second degree murder. The weapon was a computer. Here’s a report on cyber-bullying by Stephanie Mees.
POL 414- Dr. Springer
Table of Contents
Introduction Page 3
Cyberbullying Page 3
Supreme Court Free Speech Cases Page 6
Cyberbullying Cases Page 13
Future Impact of Supreme Court Decisions on Cyberbullying Page 18
Resolving Cyberbullying Page 20
Since cyberbullying has not yet made it to the Supreme Court, I will use Supreme Court cases regarding free speech in schools to illustrate how the Supreme Court may vote on future cyberbullying cases. I will begin by explaining the development of cyberbullying, what it is, and how it differs from traditional bullying. I will then explain how the Supreme Court ruled in cases about freedom of speech in schools, and how lower courts ruled in cases about cyberbullying. Finally, I will describe how the Supreme Court rulings will influence cyberbullying cases in the future, and how to go about resolving cyberbullying.
While there are many different definitions for cyberbullying, I found the article Cyberbullying: Identification, Prevention, and Response has the most easily understood definition of cyberbullying. It defines cyberbullying as the “willful and repeated harm inflicted through the use of computers, cell phones, and other electronic devices” (Hinduja and Patchin, 2010). This article informed students that cyberbullying is when someone “repeatedly makes fun of another person online or repeatedly picks on another person through email or text message or when someone posts something online about another person that they don’t like” (“Supreme Court Student Speech Cases – Cyberbullying,” 2010).
Cyberbullying takes place in a variety of venues in cyberspace (Hinduja and Patchin, 2010). There have been increasing reports of cyberbullying due to the advance in technology such as social networks, email, and cell phones. Cyberbullying is a growing problem because a great deal of kids are using and have completely embraced interactions via computers and cell phones (Hinduja and Patchin, 2010). Technology has become an important part of our lives whether it is for school, work, or social reasons; we use technology in all aspects of our lives. Since teens are connected to technology 24/7, they are susceptible to victimization (or are able bully other teens) around the clock (“Supreme Court Student Speech Cases – Cyberbullying,” 2010).
When most people hear the term cyberbullying, they may not know how it differs from traditional bullying. The advancement of technology has taken traditional bullying to the next level. There are many reasons cyberbullying can be more devastating than traditional bullying. The following reasons help to explain why cyberbullying escalates so quickly and why bullies are less likely to stop bullying once it has started:
Cyberbullies can either reveal their identity to their victim or hide their identity by using anonymous email or screen names so victims often do not even know who the bully is. When the cyberbullying is anonymous, victims may not even know why they are being targeted (Hinduja and Patchin, 2010).
The reach of cyberbullying is far greater than that of traditional bullying. A large number of people can either witness the cyber-attack or be involved in the attack. Cyberbullying is more widely spread among the victim’s peers so it seems like everyone knows about the bullying, or what has been said (Hinduja and Patchin, 2010). People can see the attack almost immediately and once the statements are out there, they can never be taken back. Traditional bullying would usually stop when the target reaches home, which leaves victims with a safe harbor. Given the prevalence of teens using cell phones, email, and the internet, cyberbullies can reach their victims at any time of the day, no matter where they are (“Cyberbullying – Home,” 2010).
Cyberbullies may not realize the pain they are inflicting on their victims. The bullies tend to be at a physically distant location so they do not have to see the immediate effects on their victim (Hinduja and Patchin, 2010). Because of the anonymity cyberbullying can provide, the bullies may start to get more aggressive than they would be in a traditional bullying situation, or if they were confronting their victims in person (Kowalski, Limber, Agatston, 2008).
Cyberbullying has become a problem because it is much harder for parents, teachers, or law enforcement officials to monitor this kind of bullying. Adults do not have the technological know-how to check up on what their teens are up to online. Even if they find out that cyberbullying is taking place, adults still find themselves unprepared to take action because they do not know what their role should be. (Hinduja and Patchin, 2010). For this reason, cyberbullies feel as if they cannot be caught and if they are caught, that they will not be punished for their actions.
It is hard to measure cyberbullying accurately because it has no clear definition. It is also hard for professionals to compare studies or determine trends because there is no agreed-upon definition to go by (United States Congress, 2009). This lack of information on cyberbullying is another reason it makes it difficult to decide who should take responsibility for the cyberbullying attacks. Parents, teachers, and law enforcement officials need clarity when it comes to knowing when they can intervene if they witness cyberbullying.
The book Constitutional Law for a Changing America addresses the vagueness of the laws on freedom of speech. “Legislation must draft laws restricting freedom of expression with sufficient precision to give fair notice of what is being regulated. If normally intelligent people have to guess what a statute means and come to different conclusions about what is prohibited by it, the statute is unconstitutionally vague” (Epstein and Walker, 2004). Since there are many different definitions of cyberbullying and no one knows if they should take responsibility for dealing with it, I think it is important to address the vagueness of cyberbullying and create laws regarding cyberbullying specifically.
Cyberbullying can affect people in a variety of ways. It can cause feelings of anxiety or hopelessness in its victims. It can also make the victims become perpetrators of cyberbullying themselves. The victims may cyberbully someone else because they see how easy it may be to get away with it, or they may need to take their aggression out on someone else. The most damaging affect of cyberbullying is that it can make the victim depressed, which can lead to suicidal thoughts (“Cyberbullying – Home,” 2010).
Supreme Court Free Speech Cases
When talking about student’s right to free speech in schools, I think it is important, first, to know what the Constitution says about free speech. The Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the government for a redress of grievances (US Constitution). When the Supreme Court rules on cases of free speech, it is their job to interpret the Constitution and rule accordingly.
The first Supreme Court case that recognized student’s right to free speech was West Virginia Board of Education v. Barnette. In this case, the West Virginia Board of Education required public school students to salute the flag during school activities. “Refusal to salute was treated as “insubordination” and was punishable by expulsion and charges of delinquency” (The Oyez Project, 1943). Students who were expelled for this insubordination would not be re-admitted to school until they complied with the school board’s requirements (The Oyez Project, 1943).
In a 6-3 opinion, the Court held that requiring students to salute the flag was unconstitutional. The Court found saluting the flag was a form of utterance and was a means of communicating ideas or speech, which is protected by the First Amendment. The Court recognized that school officials should have some say in school proceedings, but they can’t make rules that take away the rights of their students (The Oyez Project, 1943).
The case of Tinker v. Des Moines Independent Community School District is another controversial student free speech case that helps to explain the Supreme Court’s view on free speech in school. It goes along well with the case West Virginia Board of Education v. Barnette because they both show that student’s should not lose their constitutional rights when they enter a school.
Tinker v. Des Moines Independent Community School District was a case about protecting student free speech rights. It started when siblings John Tinker (15 years old), Mary Beth Tinker (13 years old), and their friend Christopher Eckhardt (16 years old) wore black armbands to promote their protest of the Vietnam War. After the school learned of the student’s intentions, they feared that the armbands would provoke disturbances, so the principals of the Des Moines school district decided students could not wear the armbands to school. If students continued to wear the armbands they would be asked to remove them or they could be subject to suspension. The students refused to quit wearing the armbands and were suspended (The Oyez Project, 1969).
The act of wearing the armbands was close enough to an expression of free speech to be considered protected. Schools have some power to make limitations on the speech of their students such as speech that threatens to disrupt the school or schools proceedings. The Court had to decide whether or not the armbands were disrupting anything or if the only reason the school suspended the students was for the political message they were sending.
In a 7-2 decision, the Court sided with Tinker. The Court found that the school failed to show that the armbands would substantially interfere with the effectiveness of the school’s discipline (The Oyez Project, 1969). The Court explained, “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate… students in school as well as out of school are ‘persons’ under our Constitution and are possessed of fundamental rights” (“Supreme Court Student Speech Cases – Cyberbullying,” 2010). The Court held that schools should be allowed to restrict student speech only if the speech would cause a “material and substantial interference with schoolwork or discipline,” or an “invasion of the rights of others” (“Supreme Court Student Speech Cases – Cyberbullying,” 2010).
This case was a win for the rights of students regarding free speech in schools. Even though it shows that the Supreme Court is on the side of freedom of speech in schools, it also makes it clear that student free speech cannot interfere with the rights of others in the school.
The next major case regarding students’ free speech in school is the case Bethel School District No. 403 v. Fraser. I choose to elaborate on this case because it could have a significant role in seeing how the Supreme Court could rule on cases about cyberbullying that happen away from school.
In this case, Matthew Fraser made a speech at a school assembly to nominate a classmate for a student elective office. In an attempt to promote the election of his friend, Fraser used a sexual innuendo. Bethel High School had a school policy that prohibited conduct which “substantially interferes with the educational process…including the use of obscene, profane language or gestures” (The Oyez Project, 1986). The Court made their decision in favor of the school.
The Court held that the free speech rights of students cannot be looked at as the same as those of adults, and decided that courts should let the school decide what needs to be done to maintain a level of discipline during school proceedings. This also gave the schools the power to decide if speech is or is not appropriate at school functions (“Supreme Court Student Speech Cases – Cyberbullying,” 2010).
Justice Brennen concurred with the majority opinion, but emphasized that “if respondent had given the same speech outside of the school environment, he could not have been penalized simply because government officials considered his language inappropriate” (“Supreme Court Student Speech Cases – Cyberbullying,” 2010). This statement could have an important impact on the Court’s rulings regarding any future cases of cyberbullying that occur outside the school setting. It makes a clear distinction between freedom of speech rights in the school and outside of the school (“Supreme Court Student Speech Cases – Cyberbullying,” 2010).
The next case is Hazelwood School District v. Kuhlmeir, which has to do with a school censoring their school newspaper. Even though the school realized the article would not interfere with the school or school proceedings, they still decided to censor the school newspaper because it may make the school look bad to parents or other members of the public. This is another case that may have a great impact on future Supreme Court cases regarding cyberbullying.
In the case of Hazelwood School District v. Kuhlmeir, students created a school newspaper as part of a class assignment. The school decided to censor an article in the newspaper that discussed teen pregnancy and the effect on students when parents get divorced. The students challenged the censorship because they felt like it infringed on their right to free speech (The Oyez Project, 1988).
The Court decided that a school’s authority to censor student speech was not confined to speech that is significantly disruptive or speech that would take away from the rights of other students. The Court held that the school did not take away the First Amendment right to free speech of the students who wrote the article because schools have the right to exercise editorial control over a school sponsored publication. Since the newspaper was part of a school assignment, the school should be able to decide if the articles are appropriate to publish. The school can restrict “expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school” (“Supreme Court Student Speech Cases – Cyberbullying,” 2010).
The precedent this case set up was that schools can censor some student speech in schools. Basically, schools don’t have to prove that the speech would interfere with school proceedings to be able to censor the speech. The Court also acknowledged that schools may regulate some speech “even though the government could not censor similar speech outside of the school” (“Supreme Court Student Speech Cases – Cyberbullying,” 2010).
With that last statement, it is clear that this may give some insight into the way the Supreme Court will handle cyberbullying in the future. It is important because it shows that the Court sees a big difference in free speech in the general public as opposed to free speech in schools. It shows, that in the school setting, that speech can be more strictly regulated than speech that occurs outside of the school.
The case of Morse v. Frederick has to do with the same issue of the difference of speech in school and out of the school. It is about a school’s right to censor speech if the speech interferes with the message the school is trying to promote, instead of being actually disruptive to the school proceedings.
Joseph Frederick made a banner for a school assembly that said “Bong Hits 4 Jesus,” which was in reference to marijuana. Principal Deborah Morse took the banner and suspended Frederick from school for ten days. Frederick sued because he thought that the school was infringing on his right to free speech. The banner went against the school’s policy regarding the display of illegal drug material and his actions could be punished according to that policy (The Oyez Project, 2007).
The Juneau School District Superintendent upheld the decision for Frederick to be suspended. He explained that Frederick “was not disciplined because the principal of the school ‘disagreed’ with his message, but because his speech appeared to advocate the use of illegal drugs” (The Oyez Project, 2007).
The superintendent continued by saying:
“The common-sense understanding of the phrase ‘bong hits’ is that it is a reference to a means of smoking marijuana. Given [Frederick’s] inability or unwillingness to express any other credible meaning for the phrase, I can only agree with the principal and countless others who saw the banner as advocating the use of illegal drugs. [Frederick’s] speech was not political. He was not advocating the legalization of marijuana or promoting a religious belief. He was displaying a fairly silly message promoting illegal drug usage in the midst of a school activity, for the benefit of television cameras covering the Torch Relay. [Frederick’s] speech was potentially disruptive to the event and clearly disruptive of and inconsistent with the school’s educational mission to educate students about the dangers of illegal drugs and to discourage their use” (Morse v. Frederick, 2007).
The District Court ruled that Morse had not violated the Frederick’s First Amendment rights. “The U.S. Court of Appeals for the Ninth Circuit cited Tinker v. Des Moines Independent Community School District, which extended First Amendment protection to student speech except where the speech would cause a disturbance. Because Frederick was punished for his message rather than for any disturbance, the Circuit Court ruled, the punishment was unconstitutional” (The Oyez Project, 2007).
Basically, the superintendent of the school thought that even though the sign did not disrupt the school proceedings, it had the potential to disrupt the school’s policy against advocating the use of illegal drugs, which could cause a disruption in school proceedings in the future.
It was obviously a very controversial case because the Court was split 5-4. The Court agreed with the superintendent, and sided with the school. “It held that because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick” (Morse v. Frederick, 2007).
With all the new technology and how accessible it has become, it seems like everyone is always connected to some kind of technology, there needs to be some kind of law to deal with cyberbullying.
J.S. v. Bethlehem Area School District was a case that involved a cyberbullying attack against a teacher instead of the more common peer-to-peer bullying. In this case, the Pennsylvania Supreme Court had to rule on whether a school district may punish a student for creating an offensive website that is directed at a student’s teacher. In this case, the website in question contained comments such as “Why Should She Die?” “Take a look at the diagram and the reasons I gave, then give me $20 to help pay for the hitman”, and a “drawing of the teacher with her head cut off and dripping from her neck” (Pennsylvania Human Relations Commission, 2009). The teacher suffered emotionally and was unable to finish the school year. The school decided that the website was a form of harassment and expelled J.S. (Pennsylvania Human Relations Commission, 2009).
J.S. claimed that his expulsion was not fair because it took away from his freedom of speech rights, so with the help of his parents he appealed the schools decision. The first thing the court had to do was to determine whether the website could be considered on-campus speech. It acknowledged that “Only a few courts have considered whether the off-campus posting of email or a web site, and the accessing of the mail or site at school constitutes on-campus or off-campus speech” (Pennsylvania Human Relations Commission, 2009). Here, the court found a “sufficient nexus between the web site and the school campus to consider the speech as occurring on-campus” (Pennsylvania Human Relations Commission, 2009).
With this, the court is saying that if the student who made the website accesses it on campus, then the speech will be considered on-campus speech and it can be punished as on-campus speech. The court examined the precedent set up by Fraser and found that the website caused “actual and substantial disruption to the work of the school, disrupting the entire school community—teachers, students, and parents” (Pennsylvania Human Relations Commission, 2009). With that being said, it is clear that the school did not violate the student’s freedom of speech rights when expelling him from school. “Bullying precedent suggests that courts will apply similar treatment to peer-to-peer cyberbullying” (Pennsylvania Human Relations Commission, 2009).
This case shows how cyberbullying can affect teacher, and a school, but in the next case it shows how it can affect the life of a teenage girl. In the case of 15-year old Phoebe Prince, cyberbullying led to suicide.
Prince was a freshman at South Hadley High School in Massachusetts. In this case, Prince was caught in a love triangle, which led to rumors about her around school. “Soon jokes about an “Irish slut” cropped up on Facebook, and a girl’s face was scribbled out of a class photo hanging up at school” (Bennett, 2010). After the Facebook attack, a girl confronted Prince in school saying, “stay away from other people’s men” (Bennett, 2010). Then, as Prince walked home, a car full of students followed her. The car got closer, and they call her names and one of the students even threw a crumpled soda can at Prince. After this incident, on January 14th, 2010, Prince went home and killed herself (Bennett, 2010).
This article brings up a good point about cyberbullying, which is that no one really knows what is punishable because there are no real parameters on what cyberbullying is. “So where is the line now between behavior that’s bad and behavior that’s criminal? Does the definition of old school bullying need to be rewritten for the new-media age” (Bennett, 2010)? With the prevalence of technology in our society, something like the Prince case is bound to happen again. This is why cyberbullying needs to be defined and laws need to be made about it, so when instances like this happen, the courts know how to punish the bullies.
Another article, regarding bullying and the Phoebe Prince case, explains the flaws in the current bullying and cyberbullying legislation. “At worst, (and often) anti-bullying regulation is overbroad, exerting control over students outside of school and infringing unduly on speech, especially when it addresses cyber-bullying. The rash of recent cases targeting student online speech (especially speech critical of administrators), the use of child porn laws to prosecute teens for sexting, and the scandalous use of webcams to spy on students at home should make us skeptical of legislation aimed at curbing verbal ‘abuses’” (Kaminer, 2010). This article explains the need for laws that specifically deal with cyberbullying. As of now, the way cyberbullying is dealt with is to punish people under other laws, but that doesn’t help in resolving the problem of cyberbullying.
The absence of cyberbullying laws provides a problem for law enforcement. They may not know what is punishable so they will not do anything to help unless the cyberbullying reaches a criminal level. Since parents, teachers, and schools do not take the initiative when cyberbullying occurs, then it brings up the question of who will address the problem. “Advocates of anti-bullying laws will argue that school officials may ignore abusive behavior by students if they are not required by law to address and even report it. Some teachers and administrators at South Hadley High School knew that Phoebe Prince was being harassed and did nothing to protect her, District Attorney Scheibel reported, calling official inaction ‘troublesome,’ but not criminal” (Kaminer, 2010). If something is not done to make sure someone takes responsibility for bullying, then horrible cases like that of Phoebe Prince will continue to take place.
In the case of Phoebe Prince, the bullying began online with cruel name-calling, and then escalated into a more traditional (and physical) form of bullying. In the next case involving cyberbullying, the bullies took the online attacks one step further by actually threatening the victim’s life online. This kind of threatening speech certainly tested the limits of free speech online.
The names of the students in this case were not disclosed in the article. The case involved a teenage boy who made a website, in 2005, promoting his singing and acting career. Students at his private high school, Harvard-Westlake School in Los Angeles, posted offensive comments on his site, making fun of his perceived sexual orientation and making hostile statements that threatened him, such as “Faggot, I’m going to kill you,” and “If I ever see you I’m…going to pound your head in with an ice pick” (Zetter, 2010). The website was taken down and his family called the school, and the police. The family was advised to take their son out of the school and wait until the police could investigate the incident. The police determined that the online comments did not meet the criteria to be able to pursue criminal charges and the comments were considered protected speech (Zetter, 2010).
The boy’s family sued six students and their parents. The family claimed the comments were hate crimes and were meant to intentionally inflict of emotional pain on the victim. The family claimed defamation of character because some of the comments had to do with the victim being homosexual (“Cyber-bullying Case Going Forward, State Appeals Court Decides,” 2010). The defendants claimed that the comments were meant to be jokes and they didn’t mean any harm so the posts were protected free speech. The case went to the appellate court, and the judges determined that the defendants “did not demonstrate that the posted message is free speech,” and the messages revealed the harmful intent of the students who posted the messages (Zetter, 2010).
“This case raises fundamental questions about cyberbullying and the line between the right to free speech online and hate crimes” (Zetter, 2010). It makes us see that the courts are not going to let harassing and threatening comments pass by as if they are protected by free speech. Free speech is the right of everyone, but only if it doesn’t impose on the rights of others. The court is making it clear that threatening comments are imposing on the rights of others and are not going to be protected.
In the aftermath of the Phoebe Prince tragedy, the Newburyport police took a case of identity theft and cyberbullying very seriously. This is another case where the names of the boys were not released. It was a case of identity theft where three 14-year-old boys created a fake Facebook page that displayed the victim’s name and picture. The three boys used the page to post mean things about other students, so it would look like the other boy had written it. The victim’s mother called the police when she found out that other students were harassing her son about the messages the other boys had posted. The victim was repeatedly harassed at school, and some students physically attacked him. The boys were accused of cyberbullying for this form of identity theft (Abel, 2010).
In this case, the police questioned the boys about the page, and they responded by saying the victim was an outcast so they thought it would be funny. This is another great case to show the need for cyberbullying laws. If there were laws about this kind of bullying, I don’t think it would stop kids from cyberbullying, but at least they would know the consequences for their actions and the police would know what to do when they are faced with this challenge.
Future Impact of Supreme Court Decisions on Cyberbullying
With so many cases of cyberbullying popping up all over the country, it is only a matter of time until the Supreme Court will have to deal with this issue. The Supreme Court cases dealing with free speech in schools, I feel, is the best way to understand what the Supreme Court may decide on cyberbullying cases in the future.
In the case Tinker v. Des Moines Independent Community School District, the Court made it clear that students do not lose their right to free speech at school. “As a result, it can be argued that if student speech takes place off-campus, is not during a school function, and uses no school resources, a school cannot punish the student for that speech without violating his First Amendment rights” (“Supreme Court Student Speech Cases – Cyberbullying,” 2010). Again, this brings up the challenge of who is willing to take responsibility for dealing with cyberbullying. “Parents often say that they don’t have the technical skills to keep up with their kids’ online behavior; teachers are afraid to intervene in behaviors that often occur away from school; and law enforcement is hesitant to get involved unless there is clear evidence of a crime or a significant threat to someone’s physical safety. As a result, cyberbullying incidents often slip through the cracks” (Hinduja and Patchin, 2010).
The decision in Tinker v. Des Moines Independent Community School District makes me think the Supreme Court will lean towards the rights of free speech of the students in cyberbullying cases. The way this case makes it sound is that students have freedom of speech as long as they are not on school property or using school resources. If the Court ruled that way, teachers and school officials would not be able to step in when cyberbullying occurs outside of the school environment.
After the case of Morse v. Frederick, the Supreme Court holdings started to go along with the decisions of school officials because they should be able to decide how much to limit student speech. The school’s should be able to decide because they know what is necessary to keep the school in order (“Student Speech, in General – Cyberbullying,” 2010).
Even though the Supreme Court has not addressed the issue of cyberbullying, I think they will soon have to. I think once cyberbullying makes it to the Supreme Court, it will be the push needed to create laws regarding this problem. I think the Supreme Court will use the free speech cases discussed in this paper as a basis for how to deal with cyberbullying.
I think the future of cyberbullying is in the hands of parents, teachers, law enforcement officials, and most importantly, the Supreme Court. At this point, no one is stepping up to take the responsibility for cyberbullying because there are no laws against it. No one knows how to respond to cyberbullying because they aren’t sure what can be done about it. If there were laws against cyberbullying, then people might step in and do something when they see it happening. A resolution will occur when there is a clear-cut definition of cyberbullying and laws against it, so people will know when to step in and that they are correct in stepping in.
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