Re: There is NO Constitutional Right to Be a Cyberbully / bad cyberbullying decision
EDTECH Editor-Jones
For those of you who like reading law (note, I'm not a lawyer, but I do a lot
of policy work that involves reading law):
As far as I can tell, there IS a constitutional right to bully somebody
verbally - it's called the First Amendment, which trumps pretty much anything
(as, in my personal opinion, it should, the alternative having far worse
consequences). Only in very tightly defined situations has the Supreme Court
carved out exceptions to First Amendment protections.
Where relevant cases have reached the Supreme Court, most decisions have
favored free speech over other considerations, such as intent to cause harm
(Jerry Falwell vs. Larry Flynt), creating a "hostile climate," etc. A lot of
the case law seems to focus on when protected free speech becomes actionable as
libel, harassment, and so forth.
There's a rather good analysis of the current state of law, as applied to
college campuses, at http://www.thefire.org/article/5019.html (note that, at
the higher ed level, a lot of the focus has been on campus policies designed to
prohibit racial and other hate speech). ,
At the K-12 level, there are two good summaries at:
www.oclre.org/LnC/The%20*Student*-1st%20Amendment.ppt
http://cnx.org/content/m14559/latest/
It's worth noting that the Tinker case, usually cited as the basis for schools
restricting free speech rights, was in fact decided in favor of students who
wore black armbands to school protesting the Vietnam War, stating that students
do not "shed their constitutional rights to freedom of speech and expression at
the schoolhouse gate" (and by extension, outside the schoolhouse gate). At the
same time, it states the precedent that schools can regulate behavior under
certain circumstances, as do several subsequent cases (see above cites).
It's also worth noting that restrictions cut both ways - schools have attempted
to curtail student-produced commentary and parodies of teachers and
administrators, including those produced and distributed completely outside of
school gates (from whence much of the case law emanates). Again, personally, I
don't like the notion of putting the power in administrators' hands to curtail
criticism.
There does not seem to be an easily definable "bright line" for these cases -
putting everyone in the uncomfortable position of having to deal with each
situation on its individual particulars, with a likelihood of being overruled
by the court, and maybe having that decision overruled by another court.
Nancy Willard has made a pretty compelling argumement
(http://www.cyberbully.org/documents/JCcyberbullyingcase.pdf) that the District
Court made a poor ruling in JC v. Beverly Hills, and that the specific facts of
the case would allow action by the school in accord with Supreme Court
precedent, but...
that's up in the air unless and until the Supreme Court rules otherwise.
----
Is cyberbullying (or any bullying) a bad thing? Of course. Whether (or when)
to restrict Free Speech in order to combat cyberbullying is nowhere near as
clear cut.
Personally, I'd like to see someone pursue an egregious case of cyberbullying
as a criminal harassment case, or a civil libel suit, taking school officials
out of the loop entirely - then we might see some more clear cut decisions as
to when online behavior crosses the line (anybody know of such a case?).
Meanwhile, it may not be politically correct to say so, but the old advice on
bullying applies to cyberbullying as well: The system can't solve all
problems, at some point you either have to stand up to a bully, take a
self-defense course, and/or have an older sibling "explain things" to the
bully. In the online world, sarcasm and wit can be wonderful weapons, and
googling "verbal self-defense" leads to lots of interesting places.
Miles Fidelman
--
In theory, there is no difference between theory and practice.
In practice, there is. .... Yogi Berra
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SIGNOFF EDTECH
EDTECH Editor-Jones
Miles,
I would like to see parents of those cyberbullied pursue legal recourse as
well. Personally, I feel that parents today need to talk with their kids
before they allow the Internet to babysit their kids. Most of these cases
of cyberbullying happen because parents are not diligent enough at home.
Then they bring the situation to the school because the children attend
the same school.
Although I support your case for "First Amendment Rights," I think the
general consensus would agree that the rights of the child being bullied
precedes that of the child who is bullying.
Marlene McGarrity
Brooklyn, NY
EDTECH Editor-Jones
>
> From: Miss Marlene McGarrity Miles,
> Although I support your case for "First Amendment Rights," I think the
> general consensus would agree that the rights of the child being bullied
> precedes that of the child who is bullying.
Bingo. Free speech rights are always in balance. Your right to exercise free
speech ends when it crosses the line of causing harm to another or interfering
with equally important rights. There are different legal standards in different
environments. The rights of public people are not all that strong.
But if you are comparing the right of a student to denigrate and torment
another student - to that student's right to feel safe at school and receive an
education, the student's right to receive an education should prevail -
hands-down. There is, however, no right to be free from speech that we might
perceive to be offensive. Where the line is crossed? Best bet is to consider
the speech based both on the subjective perspective of the student targeted, as
well as an objective 3rd party perspective.
Nancy
--
Nancy Willard, M.S., J.D.
Center for Safe and Responsible Internet Use
http://csriu.org
http://cyberbully.org
http://cyber-safe-kids.com
http://csriu.wordpress.com
nwil...@csriu.org
Cyberbullying and Cyberthreats: Responding to the Challenge of Online Social
Aggression, Threats, and Distress (Research Press)
Cyber-Safe Kids, Cyber-Savvy Teens: Helping Young People Learn to Use the
Internet Safely and Responsibly (Jossey-Bass)
EDTECH Editor-Jones
I want to thank everyone for their contributions to this discussion. It
has been very useful in helping me clarify my own ideas on the subject.
Bernie :)
--
Bernard John Poole, MSIS, PGCE
Associate Professor Emeritus
University of Pittsburgh at Johnstown, Johnstown, PA 15904, USA
(724) 238-3646
http://www.pitt.edu/~poole