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Anti-Cyber Bullying Statutes: Threat to Student Free Speech Cleveland State Law Review Volume 59 Issue 1 Article 5 2011 Anti-Cyber Bullying Statutes: Threat to Student Free Speech John O. Hayward Follow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrev Part of the Education Law Commons, First Amendment Commons, and the Internet Law Commons How does access to this work benefit ou?y Let us know! Recommended Citation John O. Hayward, Anti-Cyber Bullying Statutes: Threat to Student Free Speech, 59 Clev. St. L. Rev. 85 (2011) available at https://engagedscholarship.csuohio.edu/clevstlrev/vol59/iss1/5 This Article is brought to you for free and open access by the Journals at EngagedScholarship@CSU. It has been accepted for inclusion in Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact [email protected]. +(,1 2 1/,1( Citation: 59 Clev. St. L. Rev. 85 2011 Content downloaded/printed from HeinOnline (http://heinonline.org) Tue Jun 4 18:38:38 2013 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. Published by EngagedScholarship@CSU, 2011 1 ANTI-CYBER BULLYING STATUTES: THREAT TO STUDENT FREE SPEECH JOiiN 0. HAYWARD The mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the world-wide web.' I. INTRODUCTION ............................... ....... 86 II. BULLYING AND CYBER BULLYING..................... 87 A. TraditionalBullying ................ ........ 87 B. Cyber Bullying............................ 88 C Media Portrayalsof Cyber Bullying ................. 90 III. ANTI-CYBER BULLYING LEGISLATION ................... 90 A. Overview................................ 90 B. Normative Criteriafor Anti-Cyber Bullying Statutes.... 92 1. Prohibits Cyber Bullying away from School ......... 93 2. Includes Non-School Electronic Devices........... 93 3. Severity of Levels of Harm ........ ........ 93 4. Protects School Personnel ............ ..... 94 5. Refers to Blogs, Pagers, or Websites ................. 94 6. Includes Private Schools .................. 94 7. Requires Reporting of Cyber Bullying............... 95 8. Prohibits Reprisal or Retaliation for Reporting Cyber Bullying ......................... 95 9. Mandates Adoption of Policies to Prevent Cyber Bullying ......................... 95 10. Grants Immunity for Reporting Cyber Bullying or for Failure to Remedy Situation.... ....... 95 11. Offers Professional Development or Training for School Personnel .................. ..... 96 12. Imposes Criminal Sanctions for Cyber Bullying ... 96 C ParadigmsofAnti-Cyber Bullying Statutes............... 97 M.P.A., Harvard Univ., J.D. & A.B., Boston Univ.; Senior Lecturer in Law, Bentley Univ., Waltham, Massachusetts. The author can be reached at [email protected]. 1 Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587, 597 (W.D. Pa. 2007) (where student created parody profile of school principal using lewd language, court found insufficient "nexus" between off-campus speech and a "substantial disruption of school environment" and thus overturned his suspension). 85 https://engagedscholarship.csuohio.edu/clevstlrev/vol59/iss1/5 2 HeinOnline -- 59 Clev. St. L. Rev. 85 2011 86 CLEVELAND STATE LAW REVIEW [Vol. 59:85 D. A Model Anti-Cyber Bullying Statute .. ............. 99 IV. FREE SPEECH IN THE SCHOOLHOUSE................... ..... 102 A. Protectedvs. Unprotected Speech ......... ..... 102 B. The Tinker Tetralogy ................ ....... 102 1. Tinker - The Black Arm Band Saga .................... 103 2. Fraser- A Certain Kind of Man ....... ....... 104 3. Hazelwood- What's Fit to Print..... ....... 105 4. Morse - The Wrong Student Message .... .... 106 C. The Tinker Legacy .................... ..... 107 D. School Officials'Authority: The On-Campus - Off- Campus Dichotomy. ................... ..... 108 V. THE FIRST AMENDMENT, TRUE THREATS & CYBER BULLYING. .................................... ...... 110 A. School Officials Assault on Student Free Speech........ 110 B. True Threats or PoliticalHyperbole/Rhetoric? .......... 111 1. Watts - The President in His Sights..................... 111 2. Brandenburg- The KKK Defends the White Race............................... 112 3. ClaiborneHardware - "Breaking the Neck" of Boycott Violators ...................... 113 C. Cyber Bullying and True Threats ............... 114 VI. How ANTI-CYBER BULLYING LAWS CHILL STUDENT SPEECH ........................................... 118 A. Vagueness .......................... .....118 B. Overbreadth.. ...................... .......120 C. Content & Viewpoint Discrimination...... ....... 121 VII. CONCLUSION ....................................... 122 1. INTRODUCTION On October 17, 2006, Megan Meier, a thirteen-year-old girl in Dardenne Prairie, Missouri, who had been diagnosed with attention deficit disorder and depression, committed suicide because of postings on MySpace, an Internet social networking site, saying she was a bad person whom everyone hated and the world would be better off without.2 As a result, the state revised its harassment and stalking statutes 2 Christopher Maag, A Hoax Turned Fatal Draws Anger but No Charges, N.Y. TIMES, Nov. 28, 2007, http://www.nytimes.com/2007/11/28/us/28hoax.html. Other prominent examples of cyber bullying include Billy Wolfe, Ryan Halligan, and Ghyslian Raza (the so- called "Star Wars Kid"). See SAMUEL C. MCQUADE ET AL., CYBER BULLYING: PROTECTING KIDS & ADULTS FROM ONLINE BULLIES 4-7 (2009). In Massachusetts, fifteen-year-old Phoebe Prince and eleven-year-old Carl Joseph Walker-Hoover allegedly committed suicide due to cyber bullying. See David Abel, Mass. House Approves Anti-Bullying Bill, THE BOSTON GLOBE, Mar. 18, 2010, at 1. Their deaths prompted the Commonwealth to pass anti-cyber bullying legislation. See infra note 4. Commentators report that cyber bullying is a world- Published by EngagedScholarship@CSU, 2011 3 HeinOnline -- 59 Clev. St. L. Rev. 86 2011 2011] ANTI-CYBER BULLYING STA TUTES 87 to prohibit using electronic means to knowingly "frighten, intimidate, or cause emotional distress to another person."' At the time of this writing, twenty-one states have passed similar legislation with others sure to follow.4 Many of these statutes were enacted as a result of public hysteria over Megan's death and without due consideration to the threat they pose to freedom of speech. They are intended to combat what has become popularly known as "cyber bullying."' This article examines cyber bullying, the laws it has spawned, how they chill student free speech, their constitutionality, and presents a Model Anti-Cyber Bullying Statute. II. BULLYING AND CYBER BULLYING A. TraditionalBullying Traditional bullying is defined as "repeated intimidation, over time, of a physical, verbal and psychological nature of a less powerful person by a more powerful person or group of persons."' It is repetitive and encompasses an intrinsic power imbalance between the bully and the person being bullied who generally is incapable of self- wide phenomenon. See SHAHEEN SHARIFF, CYBER-BULLYING: ISSUES AND SOLUTIONS FOR THE SCHOOL, CLASSROOM, AND THE HOME 43-88 (2008) (describing cyber bullying in Australia, Canada, China, India, Japan, New Zealand, Singapore, South Korea, Thailand, and the United Kingdom). See also Ellen Kraft, Cyber Bullying: A Worldwide Trend of Misusing Technology to Harass Others, 36 THE INTERNET SOCIETY I 155 (2006). Mo. REV. STAT. §§ 160.261,565.090,565.225 (2009). 4 See Laura Brookover, State Policies on School Cyberbullying (tbl. 3), FIRST AMENDMENT CTR., http://www.firstamendmentcenter.org/PDF/cyberbulying-policies.pdf (last visited Apr. 20, 2011) (listing eighteen states). Massachusetts became the nineteenth state with passage of MASS. GEN. LAWS ch. 71 § 370 (2008). Georgia followed on May 27, 2010 with SB 250, which revised Chapter 2 of Title 20 of the Official Code of Georgia Annotated. See Georgia House Bill-Bullying, BULLY POLICE USA, http://www.bullypolice.org/galaw.html (last visited Apr. 20, 2011). At the same time New Hampshire approved HB 1523, repealing and re-enacting RSA 193-F:2. See New Hampshire-Pupil Safety and Violence Protection Act, BULLY POLICE USA, http://www.bullypolice.org/nhlaw.html (last visited Apr. 20, 2011). Ohio is considering similar legislation. See Jim Siegel, Bills Would Let Schools Tackle Cyberbullying Off Campus, THE DISPATCH, http://www.dispatchpolitics.com/live/content/localnews/stories/ 2010/05/18/copy/bills-would-let-schools-tackle-cyberbullying-off-campus.html?sid=101 (last visited Apr. 20, 2011). s The term is attributed to Canadian Bill Belsey, who developed the webpage located at www.cyberbullying.ca. See Qing Li, New Bottle but Old Wine: A Research of Cyberbullying in Schools, 23 COMPUTERS IN HUM. BEHAV. 1777, 1778 (2007). 6 See T. R. Nansel et al., Bullying Behavior Among U.S. Youth: Prevalence & Association with PsychosocialAdjustment, 285 J. AM. MED. Ass'N 2094 (2001); P.T. Slee, The P.E.A.C.E. Pack: A Programme for Reducing Bullying in Our Schools, 6 AUSTL. J. GUIDANCE & COUNSELING 63, 64 (1996). See also SAMEER HINDUJA & JUSTIN W. PATCHIN, BULLYING BEYOND THE SCHOOLYARD: PREVENTING AND RESPONDING TO CYBERBULLYING 11-13 (2009) (explaining how bullying involves intentional, malicious, repeated behavior designed to exert power over the person bullied). https://engagedscholarship.csuohio.edu/clevstlrev/vol59/iss1/5
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