I am so pleased to welcome my VERY FIRST Guest Blogger! Please allow me to introduce Judge Tom Jacobs. Judge Jacobs was an Arizona Assistant Attorney General from 1972–1985, where he practiced criminal and child welfare law. He was appointed to the Maricopa County Superior Court in 1985 where he served as a judge pro tem and commissioner in the juvenile and family courts until his retirement in 2008. He also taught juvenile law for ten years as an adjunct professor at the Arizona State University School of Social Work. He continues to write for teens, lawyers and judges through his books published by Thomson Reuters and Free Spirit Publishing, Inc. He also writes regularly for teens, parents and educators on youth justice issues while answering readers’ questions at his website AsktheJudge.info
Cyberbullying and the Law
by Judge Tom Jacobs
It goes without saying that teenagers and adults engage in bullying at school, in the workplace, and in the community. Traditional bullying (face-to-face) continues in society, but online bullying, known as cyberbullying, has increased over the past fifteen years with the growth of social media. Every state has a law regarding traditional bullying, but fewer have addressed cyberbullying.
Cyberbullying is defined as the repeated use of digital devices to harm another person. It could be done through a cell phone, tablet, computer or any other device. New apps are used as a platform for bullying as well as the commonly used Facebook, Twitter, and Instagram. State legislatures, courts, law enforcement and school districts continue to wrestle with this global phenomenon.
However, setting limits on free speech is an uphill battle. Since the landmark Tinker* decision in 1969, students are recognized as individuals with protectable rights. Student speech, whether verbal, digital or symbolic, is protected by the First Amendment although speech is not an absolute right. There are limits that apply to threats, obscenity and “fighting words.” You may have heard the expression that you can't stand up in a crowded theater and falsely yell "Fire" without there being consequences for the chaos and injury you cause. This principle applies to your online speech as well.
The suicide of thirteen-year-old Megan Meier in 2006 was the result in part of online bullying by an adult neighbor. Referred to as a bullycide, it led to the introduction of the Megan Meier Cyberbullying Prevention Act in Congress in 2008. The bill failed to generate enough support to become law. Some states, however, took up the cause and enacted legislation addressing cyberbullying or what most states refer to as “electronic harassment.”
Every state has laws covering the underlying acts of online bullying: intimidation, stalking, harassment and threatening. Since the term "cyberbullying" is difficult to define, most states rely on existing criminal laws rather than creating a new crime that presents First Amendment free speech challenges. Consequently, the need for a federal law is questionable. It does not appear that such a law will be passed anytime soon. However, as of this writing (March, 2016), twenty-three states have anti-bullying laws that include the word "cyberbullying." Most states (forty-eight) use the term "electronic harassment" which covers the subject adequately.
Almost every state has a law requiring public schools to have a cyberbullying policy (all but Montana).** Some states go even further and include discipline for off-campus behavior that affects the school environment. That would include, for example, a web page created by a student at home critical of a teacher or principal. If the content is sexual in nature or threatens violence against someone, the school may be able to take action.
The bottom line is to always think before posting a comment. Think about the tone of your message, who will see it, and consider the possibility of it going viral. And don't forget that once you hit "send" you can't take it back. Deleting the post on your end is fine, but that doesn't erase it from the internet (the world wide web). That type of permanent record can affect your future in surprising ways.
*See Tinker v. Des Moines Independent Community School District, 89 S.Ct. 733 (1969).
** Cyberbullying Research Center, www.cyberbullying.org (January 2016).