Education Law

Some Preliminary Thoughts on "Cyber-bullying" and the First Amendment

I'm sure that Justin has touched on this topic at some point, but the semester just ended at my institution, and some of the papers in my education law seminar have started me thinking on the issue of school bullying--more specifically "cyber-bullying." Now, this is a concept that people in my generation would have had a hard time even grasping in my high school days, but the concern over cyber-bullying has become pervasive. Some of this concern has even prompted legislation. However, I'm not sure that we even have a good definition of what constitutes cyber-bullying, and upon initial reflection, I think that what we define as bullying makes a great deal of difference on the First Amendment question.

Traditionally, we have thought of "bullying" as threats of violence (usually immediate, as in "Give me your lunch money, or I'll beat you up!"), or the actual violence itself. Neither of these definitions would raise any First Amendment concerns, as assault and battery are clearly punishable already under our criminal laws. However, in recent years, we have begun to equate incessant teasing with bullying. Some have suggested that the Colmbine killers were "bullied" in this way, although there is much dispute as to whether the Columbine killers were even "bullied" at all.

The concept of "cyber-bullying" seems to embrace the idea that incessant teasing, particularly in the form of defamation (e.g., starting rumors) or public disclosure of private facts (e.g., sexting), constitutes punishable bullying. This seems to be where the First Amendment problem comes in. Defamation is kind of an "exception" to the First Amendment (like shouting "fire" in a crowded theater), and public disclosure of private facts does not fall within the First Amendment's protections because two private parties can lawfully agree to the secrecy of certain information if they want to.

However, they are analyzed differently. We have crafted our defamation laws such that a person not defaming a public figure (like the Pope or Oprah) can be held liable in civil court merely for making a public statement that was false and that harmed the subject of the statement. So, where this conduct is termed "bullying," the party engaging in the defamation seems to be outside the protection of the First Amendment, either directly (due to defamation) or indirectly (due to deeming defamation "bullying"). Thus, there would not seem to be a First Amendment problem with schools punishing students for defaming other students under state bullying laws.

Public disclosure of private facts creates a different problem. In order to prove a civil claim for this type of harm, one must show that the speaker had a duty to keep private information about the aggrieved party secret. In most cases of "sexting," I doubt this would be possible. In sexting cases (or other public disclosure types of bullying cases like "outing" someone's sexual orientation, etc.), the information may come into the hands of the bully through a relationship either expressly or impliedly establishing the duty to keep the information secret, in which case its disclosure would be redressable under our civil laws, and thus outside the realm of the First Amendment. However, the information might also (and I think more often) come to light in normal discussion among friends, with no duty of confidentiality either expressed or implied. It would seem that, in these cases, as long as the information is true or the photos are not doctored, the disclosure might just be deemed expressive conduct.

If so, how far do Tinker and its progeny allow the school to reach? Can schools punish public disclosures of facts stated off campus through electronic media (e.g., Facebook), where there does not appear to be any sort of confidentiality understanding between the speaker and the subject? Are the invidious effects of such bullying seen during the school day disruption enough to satisfy Tinker's standards?  What about ex ante?  This seems to me a very difficult question that could chill the enforcement of some state statutes seeking to reach this sort of conduct. 

Full post as published by Edjurist on May 23, 2009 (boomark / email).