Digital bullying, stalking, and the unfortunate price of free speech

The Connecticut state legislature recently enacted a law giving school officials the authority to discipline a student whose speech "causes physical or emotional harm" to another student or "places such student in reasonable fear of harm." This would appear to some to be consonant with decades of First Amendment doctrine that allows schools to act to prevent student speech that materially disrupts school activities.

Yet the Connecticut law goes a step further -- it allows this disciplinary power even where the speech in question occurs online and completely disconnected from school activities. It has raised the hackles of lawyers and scholars who ascribe to robust free speech rights. Yet aside from the constitutional implications, and fate, of Connecticut's law, it is an understandable reaction. It is emblematic of the rising concerns of school districts, legislators, and families nationwide, who find themselves frustrated in their inability to curb the growing and insidious occurrences of cyberbullying and cyberstalking on students' e-devices.

It is now clear that our youth use their cellphones, PDAs, laptops, and social networking sites a LOT. According to the Nielson Report, in 2009, the average teenager made 2272 text messages a month. In a 30-day month, that's 75.7 texts a day! I was a young child in the 1970s, when push-button telephones finally hit their zenith. I saw the phasing-in of the first cellphones (roughly the size of a butternut squash). I use my cellphone a fair amount. But that amount of cellphone usage is staggering.

What is also clear is that, increasingly, students have been using these electronic media to bully their classmates, to "out" teens of "questionable" sexuality or behavior, and to exert control over female students through "cyberstalking." It has gotten out of control, and it is a closed and extensive world that, like many things adolescent, is heavily resistant to monitoring by parents and teachers.

Cyberstalking occurs with remarkable regularity in schools. The dynamic is chronicled in our class reading, in an article by Andrew King-Ries, in the Texas Journal of Women and the Law (20 Tex. J. Women & L. 131, Spring 2011). King-Ries demonstrates that the prevalence of teenage technology use has created a perfect storm for teenage boys to use technology stalking to violate girls' privacy. The so-called "boundarylessness" of this open student universe practically invites such behavior. And, writes King-Ries, since stalking and domestic violence are already very strongly correlated, a vast network of unmonitored cyberstalking can act as an enabler for teenage boys to become teenage violent aggressors. This is a serious social problem, and a worrying sign for young women students.

Cyberbullying, meanwhile, is best characterized as speech-conduct meant to intimidate, harass, bully, or outright threaten another individual online. It is done increasingly by students against other students, and has raised genuine problems for teachers and parents who must deal with the often-drastic personal consequences. On one level, cyberbullying is indicative of the persistent exercise of masculinity norms, whereby young men use masculinity to coerce, shame, harass, and impugn other males who fail to display overt displays of alpha-maleness. Our reading last week, "To Lynch a Child: Bullying and Gender Noncomformity in Our Nation's Schools" (Indiana Law Journal, 86 Ind. L.J. 827, Summer 2011), discussed this phenomenon whereby male students perpetuate masculinity through bullying (on- and offline).

A real-life demonstration is found in the story of a teen who launched a website when he was 15 to promote his pursuit of an acting and singing career. Several other students found fault with this maneuver, and decided to harass, taint, and threaten the teen with increasing frequency. They posted derogatory comments on his site, mocking his perceived sexual orientation and making hostile statements that threatened him with bodily harm, such as “Faggot, I’m going to kill you,” and “I want to rip out your fucking heart and feed it to you.” The teen instigated a suit that he won at the CA Court of Appeal, on grounds of hate crimes and defamation.

Similar instances of "outing" and masculine aggression have been popping up all over, but with less equitable results for the victims. Many of us have heard the stories of students who, because of the shame of being outed, withdrew from school life or, even worse, committed suicide. It is a serious problem, but, again, schools have found it very difficult to stem the tide of bullying.

One fundamental reason for the difficulty is the Constitution itself. As mentioned, although its motives were likely true, Connecticut may have stretched the doctrine too much to fit its needs. May the schools reach out to limit acts by students online, and off of school grounds? May the state act, without the school's help? On what grounds by either?

Courts have previously ruled on cases involving off-campus harmful speech. The standard used is the one that has been used for on-campus speech: the Tinker standard. Tinker v. Des Moines held that schools, in their special custodial role, may limit student speech where it caused or was very likely to cause a "material and substantial" disruption of school activities. Most of the time that Courts have ruled on the off-campus conduct, it has been found to pass the Tinker test.

Courts have found that schools may limit digital devices used on school property, including those used to access the district internet system for educational purposes. See: Hazelwood School District v. Kuhlmeier, 48 U.S. 260 (1988). Similarly, schools have not restricted the Tinker approach to only on-campus conduct. [In Morse v. Frederick, the Court upheld a school district's decision to punish a student for displaying a (now well-known) sign that read, " BONG HITS 4 JESUS." While the event was off-campus, it was a sporting event under the teacher's direct supervision]. Here, however, with online activity that is on a private website unrelated to school (or, some may argue, to learning of any value), the connection to the Tinker "material and substantial" harm seems to be there, but it is a tenuous one. Note that the Supreme Court has yet to rule on the narrow, and pressing, question of whether Tinker reaches out to include off-campus speech that occurs on facebook and similar private communications.

Surely, a case could be made that students are a highly interactive community that brings the trappings of the outside world on to school grounds with it. To the extent that harmful online conduct causes significant disruption, then the school can claim an interest in preventing that disruption. Still, if that connection suffices, it becomes awfully hard to draw lines, or to see how similarly cruel off-campus speech, conducted, say, by student A in his backyard against student B, is materially different. May the school reach that hurtful, yet private, speech as well?

There is always the recourse of lawsuits, as is the case with the threatened California teen above. But civil suits are an expensive and timely remedy, and are only available with actual speech that is a threat, harassment, or other such unprotected form of speech. It appears as if, absent a threat or harassment, it will still be very hard for schools to extend their custodial powers out into a mostly private world of speech --even when that speech is vile, baseless, and inhuman, and even when it causes great emotional hurt to fellow students. In the case of cyberstalking, it may likewise be a real challenge, unless it is shown that this stalking behavior in some way indicates invasion of privacy or some imminent criminal and harmful behavior.

That would be a shame, because for teenage women, gays, and even those not masculine enough, this growth in conduct is lingering gun with a silencer -- quiet, insidious, and normalized conduct outside the earshot of concerned parents and teachers. Perhaps a solution is to find a way to address the problem through more informal means: through, for example, comprehensive education programs directed at young male teenagers, to prevent them from even starting the conduct; or, by finding ways to intervene that involves neither the police nor school discipline. Perhaps a talk with the boy's parents, or a facebook "outing" page dedicated to those who have bullied or stalked online. These are incomplete ideas. But they seem more apt in comparison to laws enabling schools to regulate school conduct by sacrificing student speech rights at home.