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Courtney McCleister

December 4, 2014

Law and Ethics of the Media

Dr. Brian Thornton

First Amendment limitations of cyber bullying laws

Cyber bullying protection laws need to be created to protect victims from off-campus

attacks and criminalize repeated speech that causes substantial disruption to the victim’s life or

the pre existing criminal harassment and stalking statutes need to be modernized to include cyber

bullying.

Today cyber bullying is becoming an epidemic. Users can send mean text messages or

emails, rumors by email or on social networking sites, or fake profiles with just a few clicks.1

They can also share embarrassing pictures, videos, and websites. Many of these so called

bullying behaviors are criminal acts, such as harassment, stalking, terroristic threatening,

criminal mischief, assault, and many more.2 The Cyberbullying Protection Law made it a crime

to harass, stalk and bully another person over the internet. But these laws are narrow and limited

by First Amendment rights. With a libel suit as the only other viable alternative, a cyber bullying

victim’s chances for justice are very limited. These laws need to be updated to hold bullies more

legally accountable for what they say online.

There are two instances of cyber bullying that set the precedent for cyber bullying law

and address the complications of libel on the internet and the first amendment limitations for

both. The first example is of Megan Meier. Megan was a 13-year-old girl who struggled with

attention deficit disorder and depression. According to her mom, Tina Meier, in third grade she

1 "What Is Cyberbullying." Stop Bullying.2"School Violence Statistics." No BullyingExpert Advice On Cyber Bullying School Bullying. April 29, 2014.

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had talked about suicide and ever since had seen a therapist. Megan committed suicide after

being harassed by a fake MySpace profile created by a mother and daughter who lived down the

street. The family responsible for the page knew Megan and her family. The family were also

aware of Megan’s struggle with depression and the medication she used. The fake MySpace

profile convinced Megan that they were a 16-year-old boy named “Josh” who liked her and

wanted to be her boyfriend. After a few weeks, “Josh” told Megan he no longer wanted to talk to

her. He continued to reply with hateful messages and started posting more hateful messages

publicly on Megan’s page. Soon enough other’s caught on and joined in on the harassment.

Megan took her own life approximately 15 minutes after the messages were sent. She never

found out “Josh” was not real. In the Megan Meier story, no criminal charges were filed against

the mother or any participant in the “Josh” hoax, partly because there were no laws drafted to

criminalize these kinds of behavior.3

The next instance is of Alex Boston, a 13-year-old student who was singled out by two of

her classmates through a fake Facebook page. The page described by The First Amendment

Center “suggested Alex smoked marijuana and spoke a made-up language called ‘Retardish.’ It

was also set up to appear that Alex had left obscene comments on other friends’ profiles, made

frequent sexual references, and posted a racist video. The creators also are accused of posting

derogatory messages about Alex.”4 Some of the content included labeling Alex as a lesbian,

posting racist views, saying she used illegal drugs and was on medication for mental health

disorders. The page’s followers grew quickly and reached beyond 70 friends. Alex discovered

the page after classmates at school were concerned with what they thought she was posting about

them online. Later that day, Alex showed her parents the erroneous posts and lies that had been

3 "The Megan Meier Story." No BullyingExpert Advice On Cyber Bullying School Bullying. April 21, 2013. 4Hilden, Julie. "Is a Defamation Case a Good Remedy for Cyberbullying? An Atlanta Girl Tests the Law." Verdict. June 11, 2012.

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broadcasted from the fabricated Facebook page. When her parents contacted police, the

authorities said no crime had been committed. When her parents contacted the school, the only

action taken was a two day suspension for the two offending classmates. The suspension was not

even for bullying but for using cellphones to take pictures at school. The school said there was

nothing more they could do because the bullying happened off campus. Alex and her family are

attempting to sue for libel as well as intentional infliction of emotional distress(IIED) in hope

that her case of online bullying will lead to changes in the law.5

The cyber bullying protection act was introduced to Congress in 2009 after Megan Meier

committed suicide. The law set forth by the act was not enacted but attempted to amend the

federal criminal code to “impose criminal penalties on anyone who transmits in interstate or

foreign commerce a communication intended to coerce, intimidate, harass, or cause substantial

emotional distress to another person, using electronic means to support severe, repeated, and

hostile behavior.”6 The behaviors described in this law are too broad to understand the exact

speech being targeted and leaves it up to interpretation. This could cause a speech to be

criminalized that is clearly protected by the First Amendment. Since this attempt, there is still no

federal law against cyberbullying. Each state handles cyber bullying differently. Bullying,

cyberbullying, and related behaviors may be addressed in a single law or may be addressed in

multiple laws. These laws generally require state schools to have specific policies in place for

addressing and correcting behavior that may be characterized as cyberbullying. It has to be noted

here that the laws mentioned are more focused on cyber-stalking and cyber-harassment while

schools mandated policies focus on cyberbullying.

5 Chow, Andrew. "Teen Sues Classmates Over Facebook Cyberbullying." Law and Daily Life. May 2, 2012. 6"Megan Meier Cyberbullying Prevention Act (2009 - H.R. 1966)." GovTrack.us.

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The threat criminal cyberbullying laws pose to freedom of speech have caused schools to

deal with cyberbullying through resorting to the same regulations they use when handling other

forms of bullying. This could be a parent-teacher conference to discuss the bullying or direct

punishment like suspension. Since Tinker v Des Moines School District Supreme Court case,

school officials have had the ability to censor any speech that they reasonably believe will

materially and substantially disrupt or interfere with class work, educational activities and or

discipline.7 It is an important point to make that when these bullying acts occur on campus, it is

primarily within the jurisdiction of the school. This means that the school may handle it

according to the circumstances and in the way they see fit. But if the acts carry over to off

campus, such as with following the victim home, harassment on the phone, or text messaging,

harassment over the internet, etc, then it is considered out of the schools control. This is because

it is difficult for a school to punish off-campus-created student expression without violating the

First Amendment rights of free speech. The only way to apply off campus actions to

cyberbullying laws is if the speech is posted to or downloaded from the Internet on school

grounds or if the speech sufficiently connects to the school environment.

An example of a school punishing a student for their online postings from home is Kara

Kowalski. Kara seeked review from the Supreme Court in her First Amendment student speech

case after being suspended from school and banned from multiple school events for creating a

hateful MySpace group about another student.8 The group page asserted that another student had

herpes and was exclusive to students of their school. The case questioned whether the school’s

policy against harassment, bullying, and intimidation could extend outside the school and into

Kara’s home. The Fourth Circuit held that the First Amendment did not protect a student from

7 Pember, Don R., and Clay Calvert. "The First Amendment: Contemporary Problems." In Mass Media Law, 93-96. 19th ed. New York: McGraw-Hill Education, 2015.8Hilden, Julie. "Kara Kowalski Seeks U.S. Supreme Court Review in Her First Amendment Student Speech Case, But Should the High Court Take the Case?" Verdict. October 31, 2012.

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school discipline for internet bullying. The court held that Kowalski’s suspension was

constitutional because she orchestrated a targeted attack on a classmate and did so in a manner

that was sufficiently connected to the school environment.9 They used Tinker v Des Moines as

precedent to rule: (1) that it was foreseeable that the effects of the off-campus conduct at issue

(the creation and use of the MySpace page) would reach the school; and (2) that it was

foreseeable that the off-campus conduct would create a substantial disruption at the school.10 The

court ruled because Kowalski exclusively invited fellow students to indulge in hateful conduct

and the claims were so heinous and involved facts that, if true, were highly private, and if false,

were highly defamatory.11 Although this case allowed for the school to regulate speech that

occurred off campus, it would be very difficult to apply these same factors to other cases

involving off-campus speech. Such as both Megan Meier’s and Alex Boston’s case. Most

cyberbullying happens at home, outside of school and on the bullies own time and not every case

of bullying would be so public that it causes a disruption at school. This allows bullies who

target victims alone and through private messages First Amendment protection from the hateful

speech they post away from school. Due to these complications, the cyber bullying laws should

be extended to include the extent to which schools can be responsible for protecting their

students from off-campus and online harassment.

Since cyberbullying laws leave the policies up to schools and due to the First Amendment

limitations, any off-campus case can be difficult to pursue. This gives some victims, such as

Alex, only one realistic legal option to pursue, a libel case. Traditional principles of libel law

apply uniformly in all cases regardless of medium used to communicate. This means courts

9Hilden, Julie. "Kara Kowalski Seeks U.S. Supreme Court Review”10 Ibid.

11 Ibid.

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regard communication on the World Wide Web the same way they regard material published in

newspapers, magazines, or books.12 Libel is the publication or broadcast of any statement that

injures someone's reputation or lowers that person’s esteem in the community.13 In order to win a

libel suit a plaintiff must establish five separate elements: a plaintiff must prove the libel was

published, the words were of and concerning the plaintiff, the material was defamatory, the

material was false, and the defendant was at fault.14 The problem with enforcing libel law on the

internet is deciding what is opinion and what is fact. The majority of libel on the internet is

statements made in the context of an internet bulletin board or chat room. Courts have said that

these posts are likely to be opinions or hyperbole, but the courts do take care to view the remark

in context to see if it is likely to be understood as true, even if it is controversial. Courts will look

at whether a reasonable reader or listener could understand the statement as opinion or asserting

a statement of verifiable fact. A verifiable fact is one capable of being proven true or false.15

While an assertion of fact dressed up as an opinion would be a statement starting with “I

think/believe/feel” and ending with a fact. Regardless of the court viewing a statement in

context, statements that can be labeled an opinion or rhetorical hyperbole are generally covered

by First Amendment law.

For example, Alex’s libel case is weak because it is hard to prove that her reputation was

damaged from the outlandish posts. The group of girls who made the profile knew what they

were posting was lies. Given the extreme and offensive nature of what was posted, any of the

posts would have represented a complete and total personality change on Alex’s part. Even pre-

teens know that a classmate’s personality does not completely change in a short period of time,

12Pember, Don R., and Clay Calvert. In Mass Media Law, 143-56.13 Ibid.14 Ibid.15 Ibid.

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such that a once normal person is suddenly posting highly offensive material.16 Because of this,

it would be very difficult to prove reputational damage. If Alex tried to take legal action based on

the comment that she “speaks a language called ‘Retardish’” she would lose. The student who

wrote this was obviously trying to mock the way Alex speaks, or to simply make up a random

insult. But she did so in a highly rhetorical, not a factual way and thus is protected by the First

Amendment. Even if Alex tried to argue that saying she speaks ‘Retardish’ insinuates she has a

low intelligence level, libel law requires a false statement of fact. The law has confined itself to

words themselves, and not their possible connotations. The only statement asserting verifiable

fact is that Alex smokes marijuana. If this statement was the only post about Alex she might have

a chance to win for libel but since this statement is accompanied by other unconventional posts it

would be assumed that no one would believe that this was a fact. That leaves Alex with her claim

for intentional infliction of emotional distress. To prove intentional infliction of emotional

distress, the victim must show that the harasser’s conduct was “so outrageous in character, and

so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.”17 The emotional distress claim may

be difficult to prove because of the high threshold that must be met to prove it. “The IIED tort

was created for a limited purpose to allow recovery in those rare instances in which a defendant

intentionally inflicts severe emotional distress in a manner so unusual that the victim has no

other recognized theory of redress.”18 Due to this, Alex would have to prove she needed

extensive counseling for her cyberbullying . So for now, even the meanest and most offensive

online opinions about a person’s appearance or the way he or she speaks should be assumed to

16 Hilden, Julie. "Is a Defamation Case a Good Remedy for Cyberbullying?”17 Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293 (1983)18 Pember, Don R., and Clay Calvert. In Mass Media Law, 209.

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be First Amendment-protected, no matter how hurtful they may be.19 With this First Amendment

limitation making a libel case for a victim nearly impossible, the cyber bullying laws should be

federally mandated to protect the victim from repeated speech that causes substantial disruption

to their life.

The current laws criminalizing cyberbullying fall into two categories: existing criminal

laws such as harassment or stalking laws that are extended to encompass cyberbullying when

needed and others that start from scratch in crafting new criminal laws aimed at cyberbullying

specifically. Both of these type of laws are too broad, over criminalize and threaten First

Amendment rights. There needs to be some changes to help prevent future cyberbullying and

recompense the victims.The changes should include clarifying how schools can respond to

bullying on and off campus. If cyberbullying laws continue to make schools responsible for

punishment and prevention, then the schools should be able to handle any case concerning one of

their students. The existing criminal laws include some cyberbullying behaviors but they still

need to address the other behaviors related to cyberbullying that cause victim’s deep emotional

distress. These should include criminalizing specific speech online, that is not protected by the

First Amendment, such as threats and fighting words. They should be careful to punish all

speech equally, regardless of content. They should also focus on criminalizing repeated speech

that is particularly disruptive to the victim’s life and especially bullies who single out one person.

In order to pass First Amendment scrutiny, the laws pertaining to cyber bullying have to be

narrow. Any instances that fall outside of these should be handled through educating, socializing,

and stigmatizing bullies. The law cannot intervene every time someone’s feelings are hurt but

with the growth of cyber bullying and its often detrimental effects, it would be beneficial to put

up a fight against it.

19Hilden, Julie. "Is a Defamation Case a Good Remedy for Cyberbullying?”

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Bibliography

Chow, Andrew. "Teen Sues Classmates Over Facebook Cyberbullying." Law and

Daily Life. May 2, 2012. Accessed October 24, 2014.

http://blogs.findlaw.com/law_and_life/2012/05/teen-sued-classmates-over-facebook-

cyberbullying.html.

Hilden, Julie. "Is a Defamation Case a Good Remedy for Cyberbullying? An Atlanta

Girl Tests the Law." Verdict. June 11, 2012. Accessed October 24, 2014.

http://verdict.justia.com/2012/06/11/is-a-defamation-case-a-good-remedy-for-

cyberbullying.

Hilden, Julie. "Kara Kowalski Seeks U.S. Supreme Court Review in Her First

Amendment Student Speech Case, But Should the High Court Take the Case?"

Verdict. October 31, 2012. Accessed November 29, 2014.

http://verdict.justia.com/2011/10/31/kara-kowalski-seeks-u-s-supreme-court-review-

in-her-first-amendment-student-speech-case-but-should-the-high-court-take-the-case.

"Megan Meier Cyberbullying Prevention Act (2009 - H.R. 1966)." GovTrack.us.

Accessed October 24, 2014. https://www.govtrack.us/congress/bills/111/hr1966.

"The Megan Meier Story." No BullyingExpert Advice On Cyber Bullying School

Bullying. April 21, 2013. Accessed December 01, 2014. http://nobullying.com/the-

megan-meier-story/.

Murphy v. Am. Home Prods. Corp.

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Pember, Don R., and Clay Calvert. "The First Amendment: Contemporary Problems."

In Mass Media Law, 93-96. 19th ed. New York: McGraw-Hill Education, 2015.

Pember, Don R., and Clay Calvert. "Libel: Establishing a Case." In Mass Media Law,

143-56. 19th ed. New York: McGraw-Hill Education, 2015.

Pember, Don R., and Clay Calvert. "Libel: Proof of Fault." In Mass Media Law, 208-

10. 19th ed. New York: McGraw-Hill Education, 2015.

"School Violence Statistics." No BullyingExpert Advice On Cyber Bullying School

Bullying. April 29, 2014. Accessed October 24, 2014. http://nobullying.com/school-

violence-statistics/.

"What Is Cyberbullying." Stop Bullying. Accessed October 24, 2014.

http://www.stopbullying.gov/cyberbullying/what-is-it/index.html.