The Case for Including Intent in a Definition of Bullying

Posted by Justin W. Patchin on November 26, 2014

36725556Last week I presented at the International Bullying Prevention Association’s annual conference in San Diego, CA. This was the second time that I have participated in this event, and both experiences were enjoyable and educational. The attendees (over 700 strong this year) are generally very interested in the work that we are doing at the Cyberbullying Research Center, and the other presenters are uniformly among the best in the business.

The conversations that occur between the formal presentations are just as enlightening and thought-provoking as anything within the scheduled sessions. Talking with attendees and other speakers sparks insights about issues we are working on and allows us to view our research and writings from the perspective of informed others. It was a couple of these conversations that sparked my interest in writing this post.

Right before my first presentation, I got to talking with Stan Davis about how bullying is defined and specifically whether intent was a necessary component. Most definitions include this element, and ours is no different. Specifically, we define cyberbullying as “willful and repeated harm inflicted through the use of computers, cell phones, or other electronic devices.” Like most others, we argue that to be considered bullying, the behavior in question needs to be intentional.

Stan suggested that whether a behavior was deliberate or not was beside the point. If it was hurtful, or if the person doing it should have known that it could have resulted in harm to another, then it is bullying. His position was supported by Elizabeth Englander, another researcher at the conference whose work I very much respect. She added that the problem with including intent as a defining criteria is that it requires teachers in the classroom to get into the heads of students to try to figure out what they were thinking when they did what they did. This is a fair point, though one easy way to determine intent is to see if the behavior was repeated after some initial intervention. If the student is made aware that their behavior is causing harm to another (either by the target, a bystander, or other third party), and yet they continue to behave in the same way, then it’s clearly intentional.

After my presentation, Lori Ernsperger, another speaker who attended my session, came up to me to also discuss whether intent was really a necessary component of bullying. Lori and I chatted briefly about our respective positions on this issue, but because others were waiting to speak with me, we weren’t able to dig into the details enough to clearly explain where each other was coming from. I don’t think that Stan, Elizabeth, and Lori collectively conspired to critique this component of my presentation, so I did feel the need to consider this question further.

That’s why I was happy to receive an email from Lori shortly after the conference with additional information about why she felt it was imperative that we adjust our definition by removing the element of intent. She was particularly concerned with the implications of requiring intent to define something as bullying when it came to behaviors targeting students with disabilities. “Disability harassment,” she argued, “does not consider the intentionality of the bully, only if it is ‘unwelcome conduct.’ When the term ‘willful’ is used for defining bullying it requires schools to have separate policies and definitions for students within protected classes.”

She presented me with a hypothetical incident to consider:

A 16-year-old high school tennis player has a genetic disorder and diabetes. His teammates have been harassing him about going to the nurse’s office and requiring more snack breaks during practice. This goes on for a year. Coaching staff have observed this, but as required by law (FERPA), most school personnel do not know he is a child with a disability. After repeated teasing, he stops going to the nurse and eventually drops out of tennis. This is a clear violation of his civil rights, but the school said it was not “intentional” on the part of the other students (“they were good kids from good homes and did not mean it”) and they did not see this as willful behavior. But is does not matter, it was unwelcome conduct that changed this student’s educational experience. All school personnel should observe and intervene regardless of the intentionality.

First of all, regardless of intent, I agree wholeheartedly with the final sentence in her vignette. School personnel should intervene whether the behavior is defined as bullying or not. One thing is clear, the tennis players were being mean toward their teammate and that should be addressed. But was it bullying? If the students involved in harassing the tennis player for a whole year genuinely didn’t realize that what they were doing was harming the target, then it isn’t bullying. Or, if a reasonable person would have known that the behaviors were causing harm, then it would be intentional and be accurately categorized as bullying. As I have previously written, best friends can say things to each other that appear to be mean or that could unintentionally make someone upset. But are these things really bullying?

As a comparable example, maybe I say something to someone on a repeated basis, just thinking I am being funny, and that person completely ignores or even laughs along with what I am saying. But it turns out that the person is actually very hurt by my comments, yet he never expresses that to me (nor does anyone else). What I am saying may be mean or rude, but it isn’t bullying. Should it be addressed? Of course. Should it stop? Absolutely. If we were students at the same school it would be completely appropriate for a teacher or counselor or whomever to make me aware of the harm that I am causing. At that point, I should definitely apologize and not do it again. If I do repeat it, then that clearly demonstrates willfulness because I was informed of the hurtful nature of what I was saying, but still continued. And that would be bullying.

Lori insisted that the “unwelcome conduct” standard is really what matters. If something is unwelcome, then it is bullying. I don’t think it is that simple. What if I bump into someone in the hallway? Or spill my hot tea on someone’s lap? What if I crash into another vehicle when that person is stopped at a stoplight? These are all clear examples of unwelcome conduct, are they not? Would it be accurate to classify these as bullying—even if they were isolated events and completely accidental? Plus, in order for any of these behaviors to be considered “harassment” in a technical/legal sense, one would have to prove that they were done because of a person’s status (based on race, class, gender, disability, etc.). Harassment is different from bullying. Some bullying behaviors could accurately be classified as harassment, and some harassment could be bullying. But the overlap is not 100%. For example, harassment (again, as formally defined) is always based on a protected status, whereas bullying is not. Harassment could be a singular incident (though often not), whereas bullying is always repetitive (or at least presents an imminent expectation of repetition). I still can’t think of an example of a behavior that should be accurately defined as bullying where intent to cause harm is not present.

The bottom line is that we simply cannot call every harmful or hurtful or mean behavior between teens “bullying.” That dilutes the problem and is confusing to everyone involved. Bullying is a specific and more serious form of interpersonal harm and the term needs to be reserved for behaviors which are repeated and intentional.

That’s what I think. What about you?

State Cyberbullying Laws: A Brief Review of State Cyberbullying Laws and Policies

Posted by Sameer Hinduja on July 14, 2014

By Sameer Hinduja and Justin W. Patchin

This Research Summary summarizes the current state of cyberbullying bills and laws across the United States.

Hinduja, S. & Patchin, J. (2014). State Cyberbullying Laws:
A Brief Review of State Cyberbullying Laws and Policies. Cyberbullying Research Center. Retrieved [insert date], from http://www.cyberbullying.us/Bullying_and_Cyberbullying_Laws.pdf

Download PDF

Cyberbullying Law Ruled Too Vague

Posted by Justin W. Patchin on July 1, 2014

cheer_whoreA couple of weeks ago I wrote about a cyberbullying ordinance in Albany County, New York, that was being challenged and subsequently evaluated by the New York State Court of Appeals. The incident that initiated the review occurred back in June of 2011 and involved a 15-year-old student who had posted photos and hurtful comments of a sexual nature about several of his classmates to a Facebook flame page. He was one of the first to be charged with the new cyberbullying law. His attorney challenged the law as being overly broad, but lost in city court and the student ultimately pled guilty (while still retaining the ability to appeal). He did appeal to the Albany County Court, but again lost. The New York State Court of Appeals agreed to review the case and today returned their opinion.

In short, in a 5-2 split decision, the court stated that the cyberbullying ordinance that Albany County had drafted was poorly written and was therefore invalid. As drafted, the law was too broad and as a result violated the Free Speech Clause of the First Amendment: “It appears that the provision would criminalize a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult” (p. 11).

While it is likely that the forthcoming headlines in most articles and commentaries about this case will proclaim this as a victory for Free Speech advocates and argue that the opinion confirms that criminalizing cyberbullying is not allowable, that is far from what the opinion really says. In fact, the court was careful to specify that proscription is possible, if a law can be more precisely crafted: “Cyberbullying is not conceptually immune from government regulation, so we may assume, for the purposes of this case, that the First Amendment permits the prohibition of cyberbullying directed at children, depending on how that activity is defined” (p. 8).

We can set aside for a moment the question of whether new criminal statutes will help us solve the cyberbullying problem. I have stated previously that I don’t believe they will contribute much, and that other measures are likely to be much more effective. But, is the kind of speech the student promoted on Facebook protected? The court inferred that most likely, it is not.

The court acknowledged that most would agree that the student’s behavior was “repulsive and harmful to the subjects of his rants, and potentially created a risk of physical or emotional injury based on the private nature of the comments” (p. 15). Again, the court was concerned principally with the sloppy language: “Even if the First Amendment allows a cyberbullying statute of the limited nature proposed by Albany County, the local law here was not drafted in that manner” (p. 14).

So what kind of language could pass constitutional muster? Well, there were some hints to this in the opinion. Albany County’s Ordinance states:

“Cyber-Bullying shall mean any act of communicating or causing a communication to be sent by mechanical or electronic means, including posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail, with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.”

There are just a few specific words included that are problematic. In a dissenting opinion, Judge Smith argued that a cyberbullying law should be clear to apply only to students (as written, Albany’s ordinance seemingly applied also to adults and even possibly corporations) and that certain ambiguous terms would need to be removed: “The County concedes that the words ‘embarrassing’ and ‘hate mail’ are ‘vague and thus unenforceable.’ … Once these deletions are made, I see nothing in the law that renders it unconstitutional” (p. 2).

So Albany County is going back to the drawing board. County Executive Daniel McCoy said that they would work “to craft a (new) law that both protects free speech and keep kids safe.” Many other communities around the U.S. are likely in the same boat. While this ruling technically applies only to the state of New York, lawmakers in other communities would be advised to review their recently-passed laws to make sure they can withstand the scrutiny applied to this law.

Cell Phone Searches: Implications for Educators from Riley v. California

Posted by Justin W. Patchin on June 26, 2014

iphone_flickr_CC_Yataka_TsutanoNew insight about the issues associated with authorities searching the contents of cell phones has been provided by the U.S. Supreme Court. While this particular ruling deals specifically with the question of whether law enforcement officers can search the contents of cell phones possessed by people who are under arrest, educators can certainly learn from it as well. In the opinion released yesterday, the Court analyzed two separate incidents (one in California [Riley v. California] and another in Massachusetts [U.S. v. Wurie]) where officers searched—without a warrant—the cell phones of individuals they had arrested. In both cases the phones revealed incriminating evidence that was used at trial, and both defendants were convicted.

The Skinny on Search and Seizure

As a very rough and brief primer on basic criminal procedure law (don’t take this as legal advice!), the police are allowed to search the contents of, for example, a bag that a person is carrying, under a variety of circumstances. First, an officer could simply ask for permission to search it. If this isn’t granted, but the officer has reason to believe that the bag contains evidence of a crime, it could be seized and a search warrant could be obtained from a judge. The judge would review the evidence and determine if a search is appropriate. If the officer feels that time is of the essence, and that waiting to obtain a warrant could create a public safety risk (e.g., if the bag was thought to contain a bomb), then a warrant would not be needed for the search (these are referred to as “exigent circumstances”). The officer would be required to convince a judge of this necessity after the fact in order for any evidence obtained to be admissible in court.

There is another fairly common circumstance under which a person’s bag could be searched without a warrant, permission, or exigent circumstances. Once a person is under arrest, everything on their person and anything within the area of their immediate reach, is subject to search (this authority stems from another “Golden State” case: Chimel v. California [1969]). The purpose here is to identify weapons or evidence of a crime that may have been stashed by the accused upon hearing that the police were at hand. It is this latter scenario that was evaluated by the court in the current opinion: Can cell phones be searched, without a warrant, once a person has been arrested?

Cell Phones are Different

Some have argued that a cell phone is in essence no different than a bag: it contains “stuff,” including possible evidence of a crime (though admittedly no weapons). And the rules, therefore, should be the same. If you are under arrest, the logic goes, then your cell phone should be eligible to be searched (at least that’s the way the cops in California and Massachusetts interpreted the law). Well, in the end, the Court unanimously disagreed with this interpretation and ruled that cell phones are different from other items (such as briefcases or purses) and therefore are subject to different rules.

It was reasoned that cell phones have the potential to contain so much information, both locally on the device, but also remotely through cloud storage and Internet access, and that the risk of invading one’s personal privacy is too great to allow a search without reasonable justification. And even then it is difficult, if not impossible, to put restrictions on what exactly is searchable. Text messages? Personal contacts? Photos? Videos? Notes? Just being arrested shouldn’t result in a person having to reveal everything about their lives that is on, or connected to, their cell phone.

To be clear, the Court did not say that searches of cell phones are completely off-limits. Rather, it ruled that a search is not automatically allowed when someone is arrested. There must be exigent circumstances or probable cause that the phone contains evidence of a crime.

Implications for Educators

So how does this ruling apply to educators? Well, it really doesn’t. Nothing included in the language of the ruling suggests a change in law or policy concerning the circumstances under which it is appropriate for educators to search the contents of student-owned cell phones (or other portable electronic devices, for that matter) that are brought to school. We know that the rules that govern police officer behaviors are different than those that apply to educators. I’ve also previously discussed on this blog the specific question of whether educators can search the contents of student-owned devices. My review of the relevant case law leads me to conclude that educators can in fact search student cell phones, under very restricted circumstances, but the parameters for such an action are not well specified and it can be difficult for most educators to determine when a search necessary and appropriate.

In New Jersey v. T.L.O (1985), the U.S. Supreme Court stated that students are protected from unreasonable searches, but also that the standard required by law enforcement officers (probable cause of a crime) is not the same for educators. School officials generally need only show that the search was “justified at its inception and reasonable in scope.”  What makes a search justified? What is reasonable? The greatest legal minds debate the answers to these questions, so how on earth are we to hope that a school administrator can accurately sort it all out? It is likely that many of these questions will end up being resolved in a courtroom at some point, but it is best to keep you and your school out of it.

We have produced a basic checklist that educators can use to help determine if a search is reasonable and justified in their particular situation. But again, these standards have not been tested in a court of law, so they are only speculative at this point. Our best advice to educators is to resist searching a student-owned cell phone unless there is a possible safety concern (e.g., a student says that they just received a text message from another student who said they have a gun). And in this kind of situation, it is best to turn the case over to law enforcement officers, who should better understand the current legal framework for these circumstances. More importantly, it is advised that educators discuss these issues with their school resource/liaison officer and school district attorney so that everyone is more or less on the same page. Don’t wait until you are confronting a student who is believed to have contraband content on their phone before you develop appropriate procedures.

Image credit: Yataka Tsutano, Flickr, Creative Commons

The Criminalization of Cyberbullying

Posted by Justin W. Patchin on June 16, 2014

bong_hits_for_jesusI have written quite a bit over the years on the question of whether it is necessary to enact new criminal statutes to combat cyberbullying. Be it a proposal for an amended state statute or a new city ordinance, it seems popular these days for politicians to publicly proclaim the scourge of cyberbullying by offering legislation to make it a crime. Few stand on the side of cyberbullies on Election Day, so it is probably a safe platform. But is it the right approach?

The latest incident to thrust this issue into the public light is a test case out of Albany, New York, where, back in 2011, a 15-year-old student was arrested and charged with a then recently-passed county-level cyberbullying law. The student in this case is accused of having created a “flame page” wherein he posted photos and disparaging comments about a number of his classmates. Some of the comments were sexual in nature. He attempted to challenge the law in city court, but lost and ultimately pled guilty to one count of cyberbullying, pending appeal. The Albany County Court affirmed the city court judge’s ruling and it is now being reviewed by the New York State Court of Appeals.

Proponents of the law (and of the criminalization of bullying behaviors generally) say that cyberbullies need to be held accountable, and if schools and parents can’t—or won’t—do it, then society should. Opponents see this law as an attack on free speech, or challenge it as hastily written, with many essential elements left undefined or otherwise ambiguous. Others point out (quite rightly, in my opinion), that further criminalization will do little to solve the underlying causes of bullying overall.

Generally speaking, I feel that the criminal justice system should be the absolute last resort when trying to resolve the vast majority of cyberbullying incidents. If a teen repeatedly targets a peer with hurtful, harassing, or malicious online insults, and family- and/or school-based responses prove ineffective, then perhaps law enforcement does need to get involved. Even with that, though, I would hope the police and prosecutor would work to develop an appropriate solution that avoids a criminal stigma being placed on the teen.

For example, one option might be a deferred prosecution deal that is contingent on improved online behaviors. If the teen refrains from inappropriate online interactions for a specified period of time, then the charges would go away. Or maybe the accused could participate in a teen court, or meet with people who have been victimized by bullying in the past in a kind of restorative justice approach. Again, there are so many other possible avenues for dealing with bullying that hold much more promise for effectiveness than a misdemeanor criminal charge. All of these other options should be exhausted before requiring the teen to appear in front of a judge.

The other, broader issue being evaluated in Albany, is whether laws like this one infringe on a person’s right to free speech. All U.S. citizens—even students—have free speech rights. There are, of course, limitations to this. We simply don’t have the right to say anything to anyone under any circumstances. Moreover, inasmuch as the content of the speech matters (what is being said), so too does the context and consequences of that speech.

For example, it is perfectly fine for me to express my hatred for the University of Michigan athletic teams. I can stand on a public park bench and proudly and loudly proclaim my disdain for the Wolverines. That is protected speech. But if I am a high school student and repeatedly express that view during the middle of algebra class, in a way that disrupts the learning environment at school, well then that speech which was otherwise protected is now subject to reasonable discipline. The school has long been recognized as a unique environment where extraordinary restrictions on speech and other forms of expression are allowed, when necessary, to uphold school rules and maintain an appropriate school climate. As noted in Bethel School Dist. No. 403 v. Fraser, 1986: “The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior. … Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions.” More recently, this interpretation has been expanded to include some student behaviors and speech expressed from beyond the school walls (to the extent they impact the school).

Similarly, if I call someone up in the middle of the night and repeatedly, over the course of many weeks, tell them that “the Wolverines suck!” – that too may be subject to criminal sanction (for harassment or stalking). While the content of the speech is protected, the way in which it is conveyed is not. So, those tasked with keeping schools safe and orderly need to evaluate not only what was being said, but also what impact it had (or is likely to have) on the environment at school. Even speech that is protected in most circumstances could be subject to discipline under certain conditions.

I don’t know much more about the Albany case other than what has been discussed in the media, so it is difficult to comment on whether a criminal response was necessary in that particular situation. I don’t know if the school intervened or if the child’s parents disciplined their son in an effort to resolve the situation. But I also don’t believe that his speech should be protected by the First Amendment. The appellate court in New York is expected to return its findings within the next several weeks. But rest assured, no matter what the ruling, this will not be the end of this debate.

Image courtesy of Morse v Frederick (2007) (U.S. Supreme Court Case in which student speech was legitimately restricted)