Cyberbullying and the “:)” Defense

Photo credit: Hummy from flickr

By Kerra Melvin

According to the National Crime Prevention Council (NCPC), cyberbullying “happens when teens use the Internet, cell phones, or other devices to send or post text or images intended to hurt or embarrass another person.” The prevalence of cyberbullying has exploded as more and more teens have social media profiles and possess mobile phones with text messaging capabilities. While results of studies vary, it has been estimated that between 10 percent and 40 percentof teens have been victims of cyberbullying. It is no surprise, then, that cyberbullying disputes are making their way into state and federal courts.

A typical cyberbullying scenario plays out like this: Molly, a junior high student, continually posts Facebook statuses about Beth, a classmate, using her mobile phone or her home computer. The status updates may say something like, “Just saw fatty Beth stuffing her face again. What a loser. ROFLMAO :-P.” These kinds of derogatory and targeted comments escalate and become more frequent. Eventually Beth is scared to go to school and tells her mom about Molly’s Facebook assaults. Beth’s mom prints the comments and takes them to the school principal. Here’s where things get sticky. What can the school do? The answer to this question is all but clear when Molly engages in this behavior outside of school using personal property.

According to Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), schools cannot interfere with a student’s constitutional free speech rights in the “absence of demonstration of any facts which might reasonably have led school authorities to forecast substantial disruption of, or material interference with, school activities or any showing that disturbances or disorders on school premises in fact occurred.” Basically, schools cannot punish speech made outside of school unless it is causing or will reasonably cause a “substantial disruption of school activities.” Advocates and courts alike are struggling to determine how the Tinker precedent applies in the cyberbullying context.

In J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011) cert. denied, 132 S. Ct. 1097 (2012), the Third Circuit considered a case where a middle school student was expelled for making a fake Facebook profile of her principal that portrayed him as a sex addict and pedophile. The parents of the student brought the case alleging violation of her First Amendment free speech rights. On appeal, the Third Circuit concluded that the school district could not have reasonably forecasted a substantial disruption at school, and therefore could not punish the student for out-of-school speech.

Despite the ruling in Blue Mountain, schools continue to discipline students for out-of-school cyberbullying. In a recent situation in Indiana, a group of middle school girls were harassing a classmates via Facebook. The girls went so far as to discuss killing one of their classmates, the types of weapons they would use to do it, and how to cover it up. The mother of one of the targeted classmates brought a print out of some of the comments to the school, and the girls were expelled. The ACLU has now brought a case on behalf of the girls, alleging a violation of their First Amendment rights. In addition to Tinker arguments, the ACLU has also alleged in its complaint that it should have been obvious that the girls were joking because the girls used emoticons such as “:)” and “humorous online shorthand such as LOL and ROFLMAO” in their Facebook posts. The complaint was filed in April.

It will be interesting to see how this case plays out once the District Court begins its proceedings. The juxtaposition of cyberbullying and the First Amendment rights serves as another example of how unprepared our legal system is to address social media issues. While it may seem absurd that using terms such as “LOL” could help a court determine whether some statement is constitutionally protected, the lack of jurisprudence addressing cyberbullying leaves the door open for interpretation. Regardless of the constitutional implications, one takeaway should be clear—cyberbullying is a real issue facing many of our young people. Let’s hope the courts can strike the right balance between constitutional freedoms and the well being of our country’s future.