Cyberbullying and the Limits of Free Speech

Schools and policymakers confront balancing the protection of cyberbullying victims with free speech.

Bullying poses a pervasive threat to students in primary and secondary schools. This aggressive behavior, which involves a power imbalance between the bully and the victim, can have serious mental, social, and physical health consequences. For example, victims of bullying are at a higher risk of developing anxiety and depression. In severe cases, bullying is even associated with suicidal ideation in victims. Victims of cyberbullying in particular have a higher likelihood of self-harm.

Cyberbullying is bullying through the use of digital devices such as computers and smartphones. Unlike other forms of bullying, the online nature of cyberbullying permits attacks at any time, creates a permanent online record that can impact victims for years, and can be difficult for parents and schools to notice. As internet-based communication continues to rise, the prevalence of cyberbullying is expected to increase.

Currently, no federal laws directly address bullying of any kind. State laws, however, protect individuals against bullying in all 50 states, many of which specifically grapple with the issue of cyberbullying. Despite the existence of state laws, the National Center for Education Statistics reported an increase in cyberbullying in recent years. Cyberbullying often takes place off school grounds and is typically limited to speech, which is more difficult for schools to regulate effectively.

This week’s Saturday Seminar focuses on the challenges associated with legal strategies to address cyberbullying in primary and secondary schools.

• The development of the internet brought massive technological advancements but upset the delicate balance between freedom of speech and freedom from harm, Qasim Rashidwrites in the Stetson Law Review. He traces the history of free speech in the United States and how U.S. Supreme Court decisions on hate speech and obscenity restrictions have shaped the current framework for cyberbullying legislation. He argues that physical proximity is an outdated method to assess the harms from free speech and proposes legislative modifications that would criminalize certain intentional online statements “that result in foreseeable proximate harm.” He suggests that these changes could help bridge the gap between America’s “dangerously archaic” free speech model and the realities of the internet.
• Cyberbullying can create a serious threat to the health and safety of victims, Philip Lee of the University of the District of Columbia David A. Clarke School of Law argues in an article in the Utah Law Review. In fact, cyberbullying is so dangerous that it justifies reduced First Amendment free speech protections to aid primary and secondary schools that seek to prevent it, Lee writes. Schools have some flexibility in regulating speech on school grounds, but Lee notes that cyberbullies can target their classmates off school property with increasing ease. To regulate cyberbullying more effectively without giving schools unlimited power to limit students’ free speech, Lee advocates the use of a “foreseeability approach,” which allows schools to regulate speech “if it is reasonably foreseeable that the off-campus speech will reach campus.”
• Most state anti-bullying laws do not allow schools to address fully the complexities of cyberbullying, writesEmily Suski of the University of South Carolina School of Law in the Louisiana Law Review. Although bullying is associated with significant emotional and physical ramifications for victims, many state laws only give schools the power to suspend, expel, or exclude bullies from school, Suski observes. By analyzing cases from the Supreme Court that address student speech and the First Amendment, Suski concludes that the Court’s student speech jurisprudence highlights the inadequacies of current anti-bullying laws but also provides a framework that offers schools more freedom to suppress bullying in the form of speech.
• In an article published in the Akron Law Review, University of Illinois College of Media’sBenjamin Holden notes that courts are split over whether schools have authority to punish cyber-speech, even when it causes a disruption to the learning environment. In addition, the constitutional right to anonymity makes it difficult for minor victims of online bullying to seek legal redress outside of the school system, he explains. Holden proposes a new legal test for revealing the identity of cyberbullies who target minors with “school-related harassment.” If the victim can show that anonymous cyberbullies could be disciplined under applicable law if their identities were known, Holden argues that a court should be able to force an internet service provider to reveal the bullies’ identities.
• In an essay published in the Cornell Law Review, Northeastern University School of Law’sAri Ezra Waldman concludes that anti-bullying laws alone cannot significantly reduce “bullying, cyberbullying, and suicidal thoughts among” LGBTQ teenagers. He finds that state laws that ban discrimination and promote LGBTQ inclusion more effectively reduce LGBTQ bullying in schools more than anti-bullying laws. Waldman suggests that existing anti-bullying laws are only “one part of a larger socio-legal approach to combating bullying in schools and online.” To reduce bullying, he recommends implementing state laws that protect the equality of LGBTQ individuals.
• Pervasive internet access and the rise of social media use among schoolchildren have led to an increase in suicides attributed to cyberbullying, according to Ronen Perry of the University of Haifa in a forthcoming UC Irvine Law Reviewarticle. He analyzes how school administrators are limited in their ability to regulate students’ online conduct both on and off campus by constitutional constraints and federal legislation such as Title VI of the Civil Rights Act. He proposes that increasing civil liability for education supervisors, when paired with technological advancements that allow supervisors to collect and analyze digital information, is an underused regulatory tool that could help address the cyberbullying epidemic in schools and help reduce teen suicide.

The Saturday Seminar is a weekly feature that aims to put into written form the kind of content that would be conveyed in a live seminar involving regulatory experts. Each week, The Regulatory Review publishes a brief overview of a selected regulatory topic and then distills recent research and scholarly writing on that topic.