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Creating Pathways to Prosecute Cyber-Bullies

Katharine Giudice, St. John's University School of Law Class of 2012, is the author of the seventh article in a ten part series from the staffers of the Journal of Civil Rights and Economic Development under the direction of Professor Leonard Baynes. She writes on the failure of the law to provide mechanisms through which cyber-bullies can be prosecuted...

Recently, a New York trial court ruled in favor of four cyber-bullies in a case arising out of certain prurient statements made on Facebook. The defendant students were responsible for creating and maintaining a Facebook group, and while they claimed the purpose of the group was just for fun and inside jokes, the content posted suggested a calculated intent to ridicule and torment the plaintiff, a fellow classmate.

A string of posts hypothesized how the plaintiff had contracted AIDS. One student opined that the plaintiff contracted AIDS through sexual activity with a horse on a cruise to Africa. Another student disagreed with that contention and posted that she contracted AIDS from sharing needles with heroin addicts, and then engaged in sexual activity with a baboon to spread the virus. Another defendant expressed a third view, that the plaintiff contracted AIDS, in addition to other sexually transmitted diseases, from a prostitute dressed as a fireman.

The plaintiff, undoubtedly mortified upon discovering these statements, sought recourse through the court system. The plaintiff brought an action for defamation. While one would think the law would be on the plaintiff's side, and that there is no way the legal system would allow such atrocious comments to be broadcasted without consequences, the claim failed for the simple reason that the posts did not constitute statements of fact. The court held that a reasonable reader would not believe that plaintiff contracted AIDS by having sex with a horse, a baboon or a male prostitute. Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other. The court, however, made it a point to state that New York law does not provide a cognizable tort action for cyber-bullying.

Victims of cyber-bullying currently lack legal remedies. As noted above, a claim for defamation will not be sustained when statements made do not constitute facts. However, these cruel rumors and opinions, whether based in fact or not, are hurtful and damaging to victims. Likewise, criminal harassment and stalking statutes are often ineffective legal avenues. These laws were intended to fight offline problems and do not lend themselves to the distinct characteristics of online harassment and bullying. Prosecutors are heavily burdened with the task of trying to fit unique cyber-realm situations into the unyielding mold of existing laws. This is best illustrated by the acquittal of Lori Drew, the woman who drove 13 year-old Megan Meier to suicide. Drew pretended to be a teenage boy and tormented Megan via MySpace, saying that the world would be a better place without her.

Paradoxically, a bully is more likely to receive legal redress by claiming a First Amendment violation against a school for any disciplinary action in connection with cyber-bullying than a victim of bullying is to sustain a tort action. School officials are in the optimal position to police cyber-bullying. Bullies and victims are in close proximity within school house gates. Moreover, teachers and guidance counselors are adept at recognizing problematic behavior and bullying among students. However, as school officials respond to student bullying and employ disciplinary measures, they open themselves up to lawsuits alleging that they have violated the students' First Amendment rights.

The seminal standard for regulating student speech was announced 30 years ago by the Supreme Court in Tinker v. Des Moines Independent Community School District. The Court held that a school cannot discipline a student unless his or her speech materially and substantially interferes with the school's operations. The dilemma with cyber-speech and online-bullying is that much of the speech originates off campus, from a home computer, but is directed at a fellow classmate and the effects are undeniably felt within the school. School administrators are hesitant to employ disciplinary measures against a student when the offensive language occurs outside of school. Likewise, courts struggle to apply the traditional student speech framework to the unconventional situation of cyber-bullying. Lower court decisions are wildly inconsistent. All claim to apply the Tinker standard but with varying results. Not much can be gleaned from these lower court opinions, except that cyber-bullying has become a pandemic among teens and adolescents. The jurisprudence in this area of law is less than satisfying, to say the least. The anomalous result of cyber-bullies' First Amendment rights being vindicated and victims of bullying having their actions dismissed occurs all too often.

It is well settled that students do not shed their constitutional rights at the schoolhouse gates. However, the trade-off is that many kids surrender all protections of the law and are subjected to incessant harassment at the hands of untouchable cyber-bullies. This repugnant speech is not within the purview of uninhibited, robust, wide-open debate that the First Amendment is aimed at protecting. It is time that the law moves into the twenty-first century and empowers schools to curb the fatal consequences of cyber-bullying.

Katharine Guidice is a staffer on the Journal of Civil Rights and Economic Development at St. John's University School of Law. She received her undergraduate degree summa cum laude from St. John's University in May 2009.

Suggested citation: Katharine Guidice, Creating Pathways to Prosecute Cyber-Bullies, JURIST - Dateline, Oct. 10, 2011, http://jurist.org/dateline/2011/08/katharine-giudice-cyber-bullies.php.

This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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