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Courtney McCleister
December 4, 2014
Law and Ethics of the Media
Dr. Brian Thornton
First Amendment limitations of cyber bullying laws
Cyber bullying protection laws need to be created to protect victims from off-campus
attacks and criminalize repeated speech that causes substantial disruption to the victims life or
the pre existing criminal harassment and stalking statutes need to be modernized to include cyber
bullying.
Today cyber bullying is becoming an epidemic. Users can send mean text messages or
emails, rumors by email or on social networking sites, or fake profiles with just a few clicks.1
They can also share embarrassing pictures, videos, and websites. Many of these so called
bullying behaviors are criminal acts, such as harassment, stalking, terroristic threatening,
criminal mischief, assault, and many more.2 The Cyberbullying Protection Law made it a crime
to harass, stalk and bully another person over the internet. But these laws are narrow and limited
by First Amendment rights. With a libel suit as the only other viable alternative, a cyber bullying
victims chances for justice are very limited. These laws need to be updated to hold bullies more
legally accountable for what they say online.
There are two instances of cyber bullying that set the precedent for cyber bullying law
and address the complications of libel on the internet and the first amendment limitations for
both. The first example is of Megan Meier. Megan was a 13-year-old girl who struggled with
1 "What Is Cyberbullying." Stop Bullying.
2"School Violence Statistics." No BullyingExpert Advice On Cyber Bullying School Bullying. April 29,
2014.

attention deficit disorder and depression. According to her mom, Tina Meier, in third grade she
had talked about suicide and ever since had seen a therapist. Megan committed suicide after
being harassed by a fake MySpace profile created by a mother and daughter who lived down the
street. The family responsible for the page knew Megan and her family. The family were also
aware of Megans struggle with depression and the medication she used. The fake MySpace
profile convinced Megan that they were a 16-year-old boy named Josh who liked her and
wanted to be her boyfriend. After a few weeks, Josh told Megan he no longer wanted to talk to
her. He continued to reply with hateful messages and started posting more hateful messages
publicly on Megans page. Soon enough others caught on and joined in on the harassment.
Megan took her own life approximately 15 minutes after the messages were sent. She never
found out Josh was not real. In the Megan Meier story, no criminal charges were filed against
the mother or any participant in the Josh hoax, partly because there were no laws drafted to
criminalize these kinds of behavior.3
The next instance is of Alex Boston, a 13-year-old student who was singled out by two of
her classmates through a fake Facebook page. The page described by The First Amendment
Center suggested Alex smoked marijuana and spoke a made-up language called Retardish. It
was also set up to appear that Alex had left obscene comments on other friends profiles, made
frequent sexual references, and posted a racist video. The creators also are accused of posting
derogatory messages about Alex.4 Some of the content included labeling Alex as a lesbian,
posting racist views, saying she used illegal drugs and was on medication for mental health
disorders. The pages followers grew quickly and reached beyond 70 friends. Alex discovered the
3 "The Megan Meier Story." No BullyingExpert Advice On Cyber Bullying School Bullying. April 21, 2013.
4Hilden, Julie. "Is a Defamation Case a Good Remedy for Cyberbullying? An Atlanta Girl Tests the Law."
Verdict. June 11, 2012.

page after classmates at school were concerned with what they thought she was posting about
them online. Later that day, Alex showed her parents the erroneous posts and lies that had been
broadcasted from the fabricated Facebook page. When her parents contacted police, the
authorities said no crime had been committed. When her parents contacted the school, the only
action taken was a two day suspension for the two offending classmates. The suspension was not
even for bullying but for using cellphones to take pictures at school. The school said there was
nothing more they could do because the bullying happened off campus. Alex and her family are
attempting to sue for libel as well as intentional infliction of emotional distress(IIED) in hope
that her case of online bullying will lead to changes in the law.5
The cyber bullying protection act was introduced to Congress in 2009 after Megan Meier
committed suicide. The law set forth by the act was not enacted but attempted to amend the
federal criminal code to impose criminal penalties on anyone who transmits in interstate or
foreign commerce a communication intended to coerce, intimidate, harass, or cause substantial
emotional distress to another person, using electronic means to support severe, repeated, and
hostile behavior.6 The behaviors described in this law are too broad to understand the exact
speech being targeted and leaves it up to interpretation. This could cause a speech to be
criminalized that is clearly protected by the First Amendment. Since this attempt, there is still no
federal law against cyberbullying. Each state handles cyber bullying differently. Bullying,
cyberbullying, and related behaviors may be addressed in a single law or may be addressed in
multiple laws. These laws generally require state schools to have specific policies in place for
addressing and correcting behavior that may be characterized as cyberbullying. It has to be noted
5 Chow, Andrew. "Teen Sues Classmates Over Facebook Cyberbullying." Law and Daily Life. May 2,
2012.

6"Megan Meier Cyberbullying Prevention Act (2009 - H.R. 1966)." GovTrack.us.

here that the laws mentioned are more focused on cyber-stalking and cyber-harassment while
schools mandated policies focus on cyberbullying.
The threat criminal cyberbullying laws pose to freedom of speech have caused schools to
deal with cyberbullying through resorting to the same regulations they use when handling other
forms of bullying. This could be a parent-teacher conference to discuss the bullying or direct
punishment like suspension. Since Tinker v Des Moines School District Supreme Court case,
school officials have had the ability to censor any speech that they reasonably believe will
materially and substantially disrupt or interfere with class work, educational activities and or
discipline.7 It is an important point to make that when these bullying acts occur on campus, it is
primarily within the jurisdiction of the school. This means that the school may handle it
according to the circumstances and in the way they see fit. But if the acts carry over to off
campus, such as with following the victim home, harassment on the phone, or text messaging,
harassment over the internet, etc, then it is considered out of the schools control. This is because
it is difficult for a school to punish off-campus-created student expression without violating the
First Amendment rights of free speech. The only way to apply off campus actions to
cyberbullying laws is if the speech is posted to or downloaded from the Internet on school
grounds or if the speech sufficiently connects to the school environment.
An example of a school punishing a student for their online postings from home is Kara
Kowalski. Kara seeked review from the Supreme Court in her First Amendment student speech
case after being suspended from school and banned from multiple school events for creating a
hateful MySpace group about another student.8 The group page asserted that another student had
7 Pember, Don R., and Clay Calvert. "The First Amendment: Contemporary Problems." In Mass Media
Law, 93-96. 19th ed. New York: McGraw-Hill Education, 2015.

8Hilden, Julie. "Kara Kowalski Seeks U.S. Supreme Court Review in Her First Amendment Student
Speech Case, But Should the High Court Take the Case?" Verdict. October 31, 2012.

herpes and was exclusive to students of their school. The case questioned whether the schools
policy against harassment, bullying, and intimidation could extend outside the school and into
Karas home. The Fourth Circuit held that the First Amendment did not protect a student from
school discipline for internet bullying. The court held that Kowalskis suspension was
constitutional because she orchestrated a targeted attack on a classmate and did so in a manner
that was sufficiently connected to the school environment.9 They used Tinker v Des Moines as
precedent to rule: (1) that it was foreseeable that the effects of the off-campus conduct at issue
(the creation and use of the MySpace page) would reach the school; and (2) that it was
foreseeable that the off-campus conduct would create a substantial disruption at the school.10 The
court ruled because Kowalski exclusively invited fellow students to indulge in hateful conduct
and the claims were so heinous and involved facts that, if true, were highly private, and if false,
were highly defamatory.11 Although this case allowed for the school to regulate speech that
occurred off campus, it would be very difficult to apply these same factors to other cases
involving off-campus speech. Such as both Megan Meiers and Alex Bostons case. Most
cyberbullying happens at home, outside of school and on the bullies own time and not every case
of bullying would be so public that it causes a disruption at school. This allows bullies who
target victims alone and through private messages First Amendment protection from the hateful
speech they post away from school. Due to these complications, the cyber bullying laws should
be extended to include the extent to which schools can be responsible for protecting their
students from off-campus and online harassment.
9Hilden, Julie. "Kara Kowalski Seeks U.S. Supreme Court Review
10 Ibid.

11 Ibid.

Since cyberbullying laws leave the policies up to schools and due to the First Amendment
limitations, any off-campus case can be difficult to pursue. This gives some victims, such as
Alex, only one realistic legal option to pursue, a libel case. Traditional principles of libel law
apply uniformly in all cases regardless of medium used to communicate. This means courts
regard communication on the World Wide Web the same way they regard material published in
newspapers, magazines, or books.12 Libel is the publication or broadcast of any statement that
injures someone's reputation or lowers that persons esteem in the community.13 In order to win a
libel suit a plaintiff must establish five separate elements: a plaintiff must prove the libel was
published, the words were of and concerning the plaintiff, the material was defamatory, the
material was false, and the defendant was at fault.14 The problem with enforcing libel law on the
internet is deciding what is opinion and what is fact. The majority of libel on the internet is
statements made in the context of an internet bulletin board or chat room. Courts have said that
these posts are likely to be opinions or hyperbole, but the courts do take care to view the remark
in context to see if it is likely to be understood as true, even if it is controversial. Courts will look
at whether a reasonable reader or listener could understand the statement as opinion or asserting
a statement of verifiable fact. A verifiable fact is one capable of being proven true or false.15
While an assertion of fact dressed up as an opinion would be a statement starting with I
think/believe/feel and ending with a fact. Regardless of the court viewing a statement in

12Pember, Don R., and Clay Calvert. In Mass Media Law, 143-56.
13 Ibid.
14 Ibid.
15 Ibid.

context, statements that can be labeled an opinion or rhetorical hyperbole are generally covered
by First Amendment law.
For example, Alexs libel case is weak because it is hard to prove that her reputation was
damaged from the outlandish posts. The group of girls who made the profile knew what they
were posting was lies. Given the extreme and offensive nature of what was posted, any of the
posts would have represented a complete and total personality change on Alexs part. Even preteens know that a classmates personality does not completely change in a short period of time,
such that a once normal person is suddenly posting highly offensive material.16 Because of this,
it would be very difficult to prove reputational damage. If Alex tried to take legal action based on
the comment that she speaks a language called Retardish she would lose. The student who
wrote this was obviously trying to mock the way Alex speaks, or to simply make up a random
insult. But she did so in a highly rhetorical, not a factual way and thus is protected by the First
Amendment. Even if Alex tried to argue that saying she speaks Retardish insinuates she has a
low intelligence level, libel law requires a false statement of fact. The law has confined itself to
words themselves, and not their possible connotations. The only statement asserting verifiable
fact is that Alex smokes marijuana. If this statement was the only post about Alex she might have
a chance to win for libel but since this statement is accompanied by other unconventional posts it
would be assumed that no one would believe that this was a fact. That leaves Alex with her claim
for intentional infliction of emotional distress. To prove intentional infliction of emotional
distress, the victim must show that the harassers conduct was so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.17 The emotional distress claim may
16 Hilden, Julie. "Is a Defamation Case a Good Remedy for Cyberbullying?
17 Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293 (1983)

be difficult to prove because of the high threshold that must be met to prove it. The IIED tort
was created for a limited purpose to allow recovery in those rare instances in which a defendant
intentionally inflicts severe emotional distress in a manner so unusual that the victim has no
other recognized theory of redress.18 Due to this, Alex would have to prove she needed
extensive counseling for her cyberbullying . So for now, even the meanest and most offensive
online opinions about a persons appearance or the way he or she speaks should be assumed to be
First Amendment-protected, no matter how hurtful they may be.19 With this First Amendment
limitation making a libel case for a victim nearly impossible, the cyber bullying laws should be
federally mandated to protect the victim from repeated speech that causes substantial disruption
to their life.
The current laws criminalizing cyberbullying fall into two categories: existing criminal laws such
as harassment or stalking laws that are extended to encompass cyberbullying when needed and
others that start from scratch in crafting new criminal laws aimed at cyberbullying specifically.
Both of these type of laws are too broad, over criminalize and threaten First Amendment rights.
There needs to be some changes to help prevent future cyberbullying and recompense the
victims.The changes should include clarifying how schools can respond to bullying on and off
campus. If cyberbullying laws continue to make schools responsible for punishment and
prevention, then the schools should be able to handle any case concerning one of their students.
The existing criminal laws include some cyberbullying behaviors but they still need to address
the other behaviors related to cyberbullying that cause victims deep emotional distress. These
should include criminalizing specific speech online, that is not protected by the First

18 Pember, Don R., and Clay Calvert. In Mass Media Law, 209.
19Hilden, Julie. "Is a Defamation Case a Good Remedy for Cyberbullying?

Amendment, such as threats and fighting words. They should be careful to punish all speech
equally, regardless of content. They should also focus on criminalizing repeated speech that is
particularly disruptive to the victims life and especially bullies who single out one person. In
order to pass First Amendment scrutiny, the laws pertaining to cyber bullying have to be narrow.
Any instances that fall outside of these should be handled through educating, socializing, and
stigmatizing bullies. The law cannot intervene every time someones feelings are hurt but with
the growth of cyber bullying and its often detrimental effects, it would be beneficial to put up a
fight against it.

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Bibliography
Chow, Andrew. "Teen Sues Classmates Over Facebook Cyberbullying." Law and
Daily Life. May 2, 2012. Accessed October 24, 2014.
http://blogs.findlaw.com/law_and_life/2012/05/teen-sued-classmates-over-facebookcyberbullying.html.
Hilden, Julie. "Is a Defamation Case a Good Remedy for Cyberbullying? An Atlanta
Girl Tests the Law." Verdict. June 11, 2012. Accessed October 24, 2014.
http://verdict.justia.com/2012/06/11/is-a-defamation-case-a-good-remedy-forcyberbullying.
Hilden, Julie. "Kara Kowalski Seeks U.S. Supreme Court Review in Her First
Amendment Student Speech Case, But Should the High Court Take the Case?"
Verdict. October 31, 2012. Accessed November 29, 2014.
http://verdict.justia.com/2011/10/31/kara-kowalski-seeks-u-s-supreme-court-reviewin-her-first-amendment-student-speech-case-but-should-the-high-court-take-the-case.
"Megan Meier Cyberbullying Prevention Act (2009 - H.R. 1966)." GovTrack.us.
Accessed October 24, 2014. https://www.govtrack.us/congress/bills/111/hr1966.
"The Megan Meier Story." No BullyingExpert Advice On Cyber Bullying School
Bullying. April 21, 2013. Accessed December 01, 2014. http://nobullying.com/themegan-meier-story/.
Murphy v. Am. Home Prods. Corp.

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Pember, Don R., and Clay Calvert. "The First Amendment: Contemporary Problems."
In Mass Media Law, 93-96. 19th ed. New York: McGraw-Hill Education, 2015.
Pember, Don R., and Clay Calvert. "Libel: Establishing a Case." In Mass Media Law,
143-56. 19th ed. New York: McGraw-Hill Education, 2015.
Pember, Don R., and Clay Calvert. "Libel: Proof of Fault." In Mass Media Law, 20810. 19th ed. New York: McGraw-Hill Education, 2015.
"School Violence Statistics." No BullyingExpert Advice On Cyber Bullying School
Bullying. April 29, 2014. Accessed October 24, 2014. http://nobullying.com/schoolviolence-statistics/.
"What Is Cyberbullying." Stop Bullying. Accessed October 24, 2014.
http://www.stopbullying.gov/cyberbullying/what-is-it/index.html.

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