One out of every five students has been a target of cyber-bullying.
That jarring statistic is from the Cyberbullying Research Center, an online clearinghouse created by two scholars studying online behavior. And it is one of sparks for state lawmakers in New York and elsewhere to try to protect students from cell-phone and Internet harassment.
But those efforts also run up against free-speech protections under the First Amendment.
“We face a very big challenge with cyber-bullying,” Assemblyman Daniel O’Donnell, D-Morningside Heights, in New York City, said in an interview. He is a sponsor of recently enacted legislation aimed at tracking and preventing cyber-bullying. He and other supporters of measures against cyber-bullying cite several high-profile cases as justification for the laws.
One case, for example, is the September 2010 suicide of Tyler Clementi, an 18-year-old Rutgers student who jumped to his death from the George Washington Bridge after a sexual encounter with another man was secretly recorded in his dormitory room and streamed live over the Internet.
Cyber-bullying is “online aggression,” according to the Cyber-bullying Research Center run by two professors, Justin Patch of the University of Wisconsin-Eau Claire and Sameer Hinduja of Florida Atlantic University. And cyber-bullying is a constant and evolving threat to school students and the learning process, warn a growing number of educators. But the presence and effects of bullying may be overstated, say others. And trying to control offensive online speech run smack against the First Amendment, say free speech experts.
The First Amendment was designed to protect offensive speech, said Roy Gutterman, director of the Tully Center for Free Speech at Syracuse University. That makes it difficult for governments to draft anti-bullying laws that are both effective and constitutional.
“Any speech-restricting law is unconstitutional if it is overbroad and eliminates more speech than absolutely necessary,” Gutterman said. “An overbroad speech law is often like a fishing net: You can catch a lot of what you want, but the net can often catch things you don’t intend. A law like that cannot stand.”
At the federal level, legislators have run into that very problem. In 2008, for example, U.S. Rep. Linda T. Sanchez, D-Calif., introduced a bill in Congress specifically targeting cyber-bullying. But the bill was criticized as being overbroad and died without reaching a vote.
Online bullies may be even more protected under current law than face-to-face bullies, said David Rubin, also a First Amendment scholar and professor of communications law at Syracuse University’s S.I. Newhouse School of Public Communications. Judges can rule that the targets of cyber-bullying could have “just hit delete” to avoid offensive content, said Rubin.
“As hateful, unethical and juvenile as some cyber-bullying may be, it is not illegal for those reasons alone,” Rubin said. “Not everything people do that is morally reprehensible is a criminal act.”
But the First Amendment won’t protect cyber-bullying speech if it violates libel, privacy or harassment statutes, or when it crosses the line into a threat of physical action, Rubin said. “In those situations, the law as it stands now is perfectly capable of punishing cyber-bullies,” Rubin said. “Distinguishing cyber-bullying from normal speech is unnecessary.”
For example, senders of abusive or threatening messages online might be charged “aggravated harassment,” according to the Onondaga County district attorney’s office. A conviction carries a penalty of up to one year in prison or three years on probation.
With so many youngsters spending so much time online, school administrators are often the front line against cyber-bullying and its effects. Targeted students can feel terrorized or ostracized, say education experts. Some victims begin to skip school. Feuds grow between groups of students. And what starts online can escalate into physical action, said Christopher Brown, superintendent of the West Genesee Central School District.
“Unfortunately, targeted students are often ones who are already marginalized in some way,” Brown said. For example, statewide survey by Empire State Pride Agenda found that 22.2 percent of gay and lesbian youth report skipping school at least once a month because of threatening speech from peers. The Pride Agenda is a gay, lesbian, bisexual and transgender advocacy group.
Schools, say education experts, have much more leeway to control cyber-bullying than the government does.
“School codes of conduct can sanction against students who bully when that speech hurts another student’s ability to learn or do work—even if the bullying takes place outside of school,” said Brown of the West Genesee Central School District.
Schools can also collaborate with local police to nip potential blow-ups in the bud. For example, police maintain undercover Facebook accounts and advise administrators at West Genesee of threatening speech among students, Brown said.
Some cyber-bullying is aimed directly at an intended target. But most occurs because people do not take the hyper-public nature of social media sites into account, said Russell Sabella, professor of counseling at Florida Gulf Coast University and former president of the American School Counselor Association.
“The level of exposure on the internet increases the likelihood that someone will be harmed by someone else’s message,” Sabella said. “When a single post can reach thousands on a ‘friend list,’ there is a greater chance that one of those interactions can go wrong.”
Exceptional cases of cyber-bullying make national news, Sabella said. Because of that, he warned that the problem, while still significant, may be overblown.
“The research is not as compelling as anecdotal evidence,” Sabella said. “Researchers have a very broad definition of cyber-bullying, so the numbers are high. We know that a good portion of people don’t bully intentionally and they don’t anticipate a negative response.”
In New York, the legislature’s response to cyber-bullying is the “Dignity for All Students Act” sponsored by O’Donnell, the Morningside Heights assemblyman. It requires public schools to report all instances of bullying based on several factors, including race, religion and sexual orientation. It also requires schools to maintain an anti-bullying counselor with special training and to establish a standardized policy to address bullying, both in-person and online. The law goes into effect next year.
The law has had widespread support from school and student groups, as well as some strong advocates for free speech. The biggest benefit of the law is universal adoption of bullying policy in schools, said Barrie Gewanter, director of the American Civil Liberties Union’s Central New York chapter.
“This law will let everyone know where the lines are for a school’s jurisdiction in a cyber-bullying case,” said Gewanter. “I have seen schools overreact, under-react, or not react at all to cyber-bullying. This will help by ensuring students and administrators know what’s at stake.”
The “Dignity Act” does not apply to colleges and universities—something state Assemblyman O’Donnell says he wants to change. To minimize challenges to the law as overbroad, he is consulting with free-speech advocates.
“We will work with the New York Civil Liberties Union to be sure we don’t infringe on civil rights,” O’Donnell said. “They will advise us on how to write the law so we can safeguard all students against bullying.”
(Michael Leess is a senior newspaper and online journalism major.)
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