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There is an interesting article in this week’s Chronicle of Higher Education in which legal expert Robert M. O’Neil discusses many of the legal challenges facing those who wish to “stand up to cyberbullies.” In the article, O’Neil presents just some of the issues confronting the legal community in responding to cyberbullies. The questions are often so contentious that legal experts themselves cannot agree. Courts have been grappling with free speech issues relating to the Internet for over a decade, but it still seems there is very little clarity. No wonder victims of cyberbullying (and the teachers, parents, and others dedicated to helping them) struggle to know what to do.

In our presentations to teachers and parents, we are forced to update the information regarding legal issues almost continuously as new decisions are filed and new conclusions are reached. The most general advice we give is: Cyberbullies must be punished, but it is important to use the least restrictive punishment available to get the message across. Expelling a student for sending an email to another student calling him or her “fat” is excessive. That said, even the most trivial of cyberbullying behaviors CANNOT be ignored. Take informal action (contact parents, convene a meeting with a principal, etc.) and you will be sure to remain on firm legal footing. When in doubt about any of these issues, consult with a lawyer. Until more cyberbullying cases reach the higher courts, we will have to take actions that seem reasonable and hope for the best…

Perhaps you saw this article detailing how a school district in Oregon is proposing to work with the state’s Department of Transportation to suspend the driver’s license of a student who has been suspended or expelled at least twice for harassing, intimidating, or mistreating another student or employee using electronic means. Again, it is great to see that strategies for response are being increasingly proposed, but I question this policy’s effectiveness. First off, cyberbullying occurs frequently among middle-schoolers and those who still yet can’t drive – so the deterrent reach of this policy is narrow. Second, if perpetrators are no longer allowed to legally drive – what will they be doing with their time? They will be likely be online more, since they have no mobility. They will likely also be mad at the world (to some degree) since they have no mobility. They might also be even more upset or mad with their victim(s) for contributing to the crappy situation in which they find themselves. These negative emotions towards the victim might lead to more bullying or cyberbullying.

I will say that the bill they passed last year (HB2637) requiring school districts to ban and formally respond to cyberbullying – is well-conceived.

Florida’s Governor Charlie Crist has just signed into law the “Jeffrey Johnston Stand Up for All Students Act.” This is due mostly to the efforts of our friend Debbie Johnston from Cape Coral, Florida, a first-grade schoolteacher whose son Jeffrey took his life after being bullied and cyberbullied.

This law:

- requires districts to adopt policy prohibiting bullying & harassment, and to specify procedures for reporting, investigating, notifying, referring, and collecting data on incidents

- provides a measure of immunity for school districts in their investigation and response

- provides restrictions with respect to defense of action & application of provisions (which basically means that victims who defend themselves by fighting back won’t also be punished)

-makes DOE Safe Schools Funds conditional on compliance (which means that these anti-bullying and anti-cyberbullying policies must be in place in order for the school district to keep receiving federal funds)

The law also states: “The physical location or time of access of a computer-related incident cannot be raised as a defense in any disciplinary action initiated under this section.” IANAL, but from my understanding this means that a perpetrator cannot point to the fact that the bullying took place via an electronic device as a justification to temper or qualify the severity of the behavior.

Congratulations, Debbie. We share your joy with this outcome.

For those of you who haven’t heard yet, a federal law has been proposed that defines “cyberbullying” and specifies penalties (in the form of fines and up to two years imprisonment) for violators. The bill is formally called the Megan Meier Cyberbullying Prevention Act (HR 6123), and was introduced jointly by Representatives from Missouri and California. We support the creation of well-informed and thought-out laws that are part of a comprehensive plan to address cyberbullying, and we applaud the fact that politicians are increasingly recognizing and formally responding to the problem of online aggression. However, this specific law is just not going to work. The text of the bill reads:

Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both. (§ 881)

The bill’s wording seems too broad, and its overbreadth makes me believe that it would be found unconstitutional. IANAL, but intent to cause “substantial emotional distress” through “severe” and “hostile” electronic behaviors will be difficult to prove, especially when it is online. I think courts would (and do) have an easier time identifying and agreeing upon the same behavior when demonstrated offline, in the real world.

On a final note, I like the fact that “cyberbullying” is spelled as one word in the bill.

According to this article, the Manatee County School Board is allowing educators and administrators to look through the contents of students’ phones in order to find incriminating text, photo, and video content. First, IANAL and so please keep that in mind. Second, even if this occurs on school grounds, I don’t think it justifies allowing teachers to do this under the pretense of “suspicion,” even if it is “reasonable suspicion.” Third, maybe if reasonable suspicion of a crime existed, it might be more palatable. Fourth, the parents will have a field day with this. Fifth, such an invasion should only be possible by school law enforcement and possibly the principal, and not just any teacher. Sixth, most state wiretap laws (such as Florida’s) would simply not allow the interception or disclosure of electronic communications (such as a text message between two students). Anyone who “intentionally intercepts” any “electronic communication” has committed a criminal act. Many state wiretapping laws also prohibit unlawful access to stored communications (and I presume a picture or video taken by a cell phone would fall under this). A violation would then open up the school district to a civil cause of action by the student (or his/her family). So, in sum, I don’t think this will fly. It would be best if students, without the threat of educators confiscating and rifling through the contents of their phone, would simply not use it in inappropriate ways. Maybe one day….