By guest blogger Sam Atkeson
The New York state Court of Appeals is currently considering what is one of the first challenges to a state or local policy imposing criminal sanctions on cyberbullying.
As efforts to criminalize cyberbullying have gained momentum in recent years, so too has criticism from lawmakers and advocacy groups who argue that in some cases, such laws violate the First Amendment right to free speech. The decision is expected to set a precedent for challenges to similar legislation in other states, according to the Wall Street Journal.
In question is a 2010 law enacted by the Albany County Legislature that makes cyberbullying a misdemeanor crime. The policy defines cyberbullying as any act of electronic communication that disseminates "embarrassing or sexually explicit photographs"; "private, personal, false or sexual information"; or "hate mail, with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person."
The court case stems from an incident involving Marquan W. Mackey-Meggs, a student at Cohoes High School in Cohoes, N.Y., who was arrested in June of 2011 for creating a Facebook page entitled "Cohoes Flame" to which he posted photos of classmates with derogatory and sexual captions.
Mackey-Meggs pleaded guilty to one count of cyberbullying, but only on the grounds that he could appeal the conviction on its constitutionality.
According to the People v. Marquan M. case summary, Mackey-Meggs argues that the policy is "an unconstitutional regulation of speech because its terms reach far beyond the narrow categories of unprotected speech that the government may regulate—namely, fighting words, incitement, obscenity, and true threats."
The case sheds new light on the complexity of issues surrounding the cyberbullying debate, and the number of questions it raises—from what exactly defines cyberbullying, to what punitive measures are necessary to combat it, to where exactly the responsibility (and in some cases, the right) to discipline lies. Plenty of background can be found in EdWeek's coverage of these questions over the years, including in Nancy E. Willard's piece on cyberbullying, and in Michelle Davis' article on legislative efforts to address it.
With regard to cyberbullying, the question of free speech often boils down to an interplay between "content and context," says Justin Patchin, co-director of the Cyberbullying Research Center. Launched in 2005, the Cyberbullying Research Center serves as a clearinghouse of resources aimed at preventing and responding more effectively to acts of online aggression.
"We know that students have rights," Patchin says, "but we also know that their rights are curtailed at school, to the extent that their speech and behavior disrupt the learning environment at school." The result, Patchin states, is that educators have the ability to restrict certain kinds of speech in a public school that the police could not restrict in, for example, a public park.
The precedent for regulating speech in public schools lies in the 1969 Tinker v. Des Moines School District ruling, in which the U.S. Supreme Court argued that schools can restrict speech that "materially disrupts classwork or involves substantial disorder or invasion of the rights of others."
In recent years, legislators in 13 states have expanded upon this standard in order to pass laws like Minnesota's Safe and Supportive Schools Act. Signed in April of this year, the law gives school administrators jurisdiction in dealing with cyberbullying cases that occur off-campus, but that nonetheless "substantially and materially disrupt student learning or the school environment."
The Albany County cyberbullying law goes one step further, giving law enforcement the power to prosecute offenders in such cases. New York is one of 14 states to have passed legislation criminalizing cyberbullying.
In the 2007 Supreme Court case Morse v. Frederick, which also involved the restriction of speech in public schools (some of you might remember it by the speech in question: a banner that read "BONG HiTS 4 JESUS") Justice Breyer called for the importance of local control in addressing such issues.
"Students are always going to test the limits as to what is acceptable behavior," Breyer stated. "Schools should be given flexible authority in dealing with issues that arise involving the school environment since school officials, not judges, are better equipped to deal with 'disciplinary challenges.'"
Patchin tends to agree. "Generally speaking, our position is that the vast majority of cyberbullying cases should be handled informally, with parents working with school officials. In the majority of cases that is all that's necessary."
Patchin sees the need for criminal involvement only when there is a "long pattern of cyberbullying behaviors" that parent and school efforts have failed to ameliorate. "In those rare cases," he argues, "some other remedy might be necessary."
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