States Balancing Protecting Students From Cyberbullying, Preserving First Amendment Rights

State laws walk the line between infringing on students' First Amendment rights and protecting them from being cyberbullied, a First Amendment expert said. And no one seems to be lobbying or advocating for federal legislation. (Editor’s note: This Part II describes state efforts to curb cyberbullying and online harassment absent federal legislation. Part I (see 1509040027) explored social media companies’ efforts.)

All states reference online versions of harassment, except Alaska and Wisconsin, said Cyberbullying Research Center Co-Director Justin Patchin. All but Montana also require schools to have bullying policies, he said. For those not of school age who are being harassed online, law enforcement can be contacted and a separate criminal statute may apply, but it’s “not necessarily a crime to say mean things online,” Patchin said.

Gov. Steve Bullock (D) signed Montana's law in April after several different drafts were in the works for a couple of years, Montana Legislative Services Research Analyst Pad McCracken said in an interview. The Bully-Free Montana Act defines bullying as any “harassment, intimidation, hazing or threatening, insulting or demeaning gesture or physical, including any intentional written, verbal or electronic communication or threat directed against a student that is persistent, severe or repeated.” The law doesn’t specifically require schools to get involved because school districts already were required to have bullying policies, so the thinking was that it would be redundant to include that requirement in the new legislation, McCracken said.

Montana’s law also criminalizes cyberbullying, which roughly 15 other states also have done. Some question the impact that criminalizing can have and whether it will cause students not to report the behavior because they don’t want to get someone in legal trouble. Director David Esquith of the U.S. Department of Education Office of Safe and Healthy Students said the issue hasn't been addressed at the federal level, but the department provides grants for schools that are improving “school climates” because studies show that as the solution. Reported cyberbullying instances have been decreasing, according to the government's Indicators of School Crime and Safety, but Esquith said there was no indication as to why. "There's just been a lot of activity at the local, state and federal levels around preventing bullying and that may be why it has happened," he said. "We hope those efforts have contributed to it."

Repeated cyberbullying or cyberstalking could be categorized as harassment, but not all laws can be appropriately applied to cyber issues, Patchin said. Without further guidance by the Supreme Court, an individual has to prove damages such as to their reputation or emotional distress, which is difficult, time-consuming and expensive, he said. The court left things “a bit unclear” in its ruling earlier this year in Elonis v. U.S., by saying threats made over the Internet are protected unless they're malevolent or reckless (see 1506010051).

Varied Laws

State laws do vary widely, our review found. Cyberbullying legislation has mainly meant repackaging harassment laws to address the electronic communications issues that have cropped up as the Internet has become more popular, said First Amendment Center President Ken Paulson. The laws are time-tested against the First Amendment, so legislators don’t have to be concerned that in addressing cyberbullying they are also infringing on students’ constitutional rights, he said.

That isn't always the case, though. Maryland’s law prohibits speech that “inflicts serious emotional distress on a minor,” which Paulson said is crossing the line. “There are a lot of things that you can say, or do, that cause fellow students serious emotional distress ... you see that on website comment boards all the time,” he said. “People get angry and lash out. But it wouldn't occur to anyone to try to criminalize that. In a nation founded on free speech, you cannot prohibit free expression unless it's tantamount to a genuine threat.”

California and New Jersey have in-depth laws that go to great lengths to protect students from cyberbullying. California’s law allows school officials to punish students who engage in harassment by electronic means, on or off campus. The law, which was passed in September 2013, was introduced by Assemblywoman Cristina Garcia (D). The law "closes a large loophole in anti-bullying law to match the reality we live in, since these laws were written before the explosive growth of electronic devices and instant communication,” Garcia said after the bill passed.

New Jersey’s Anti-Bullying Bill of Rights Act, which took effect in the 2011-12 school year, aimed to strengthen the standards and procedures for “preventing, reporting, investigating, and responding to incidents of harassment, intimidation, and bullying of students that occur in school and off school premises.” The amendment allows school officials to punish students for events that occurred off school property as long as there's a connection to school. It defines harassment, intimidation or bullying as including any gesture, action, or communication that's reasonably perceived as being motivated either by any actual or perceived characteristic that substantially disrupts or interferes with schools or student rights, and that a reasonable person should know will harm a student or damage a student’s property or cause the student to fear such harm.

Cyberbullying opponents and an industry lawyer agreed on the need to protect students, but differed somewhat on the approach. Carl Szabo, Net Choice policy counsel, said cyberbullying needs to be addressed without taking away First Amendment rights. He said the key to dealing with cyberbullying is to educate people about the problem and then have schools and parents engage with students on what constitutes appropriate behavior and online etiquette. Since states likely will be updating their laws to reflect technological advancements, legislators need to remember that speech -- even that done online -- is free and should be considered cyberbullying only in the event that there's an intent to cause harm, Szabo said. “Laws are helpful but they are not always the solution,” he said. “Criminalizing conduct doesn't necessarily cause it to not happen. And if you over-criminalize, there's a hesitance to actually take action against a bully. ... Laws are beneficial at reacting to bad behavior, but not necessarily at being proactive at addressing the underlying [issue].”