OMG! Missing the teachable moment and undermining the future of the First Amendment - TISNF! (Oh my God, that is so not fair)

• Author: Backus, Mary Sue

INTRODUCTION

In 2006, a distraught 13-year-old Megan Meier committed suicide after being belittled and dumped on the social networking site MySpace by someone she thought was a 16-year-old boy named Josh. The shock of that horrific event generated a great deal of media coverage of a problem educators and kids have known about for some time--cyberbullying. Although specific definitions vary, cyberbullying generally involves using electronic media, such as email, instant messaging, Web sites, cell phones, chat rooms or text messages, to bully or harass. Megan's story was atypical because her tormentor was an adult, but her tragedy helped highlight the prevalence and serious consequences of electronic peer-to-peer harassment, both online and through other electronic media such as cell phones and portable electronic devices. Studies suggest a significant number of young people have experienced online harassment, or "cyberbullying" behaviors, and that the emotional and psychological consequences are real. (1)

In response to growing awareness of the problem, schools have reached beyond the schoolhouse gate to discipline students for their online speech, while a rash of anti-cyberbullying legislation has been introduced in state legislatures across the nation, (2) and even in Congress. (3) This oppressive response is exactly wrong. The anti-cyberbullying legislation is unnecessary and ineffective, and some variations are likely unconstitutional. Moreover, although schools have the tools, and perceive that they have the power, to discipline, and thus constrain, inappropriate student speech that occurs off campus, an authoritarian disciplinary approach is counterproductive, threatens students' free speech rights, and potentially compromises the vigor of the First Amendment in the future. In short, schools are missing the teachable moment. Schools have a golden opportunity in the context of student online communication to both inculcate an understanding and appreciation for First Amendment free speech rights that are fundamental to our democratic system, and teach responsible, appropriate use of technology and communication.

Part I briefly outlines the problems of unrestrained student speech, and acknowledges that the dangers of cyberbullying and other inappropriate online behaviors are real and deserving of concerted attention. In the face of this documented problem, Part II surveys the trend in student speech cases and concludes that, even with confusing and contradictory legal rulings, public schools are exercising what they perceive to be wide latitude to punish off-campus student speech. In addition, Part II surveys the state legislative response and the move to push schools to expand their authority over student speech, along with attempts to criminalize a wide variety of cyberbullying behaviors. Part III suggests that, despite the fact that each may have the authority to do so, both the state legislatures and the schools are misguided in their respective approaches. Part III then explores why further criminalization and heavy-handed discipline will be ultimately ineffective in addressing cyberbullying. As an alternative, Part IV proposes that schools embrace their role as socializing agents and the keepers of our democracy. Instead of merely doling out punishment, schools should focus on teaching young people the value of the rights and responsibilities embodied in our First Amendment right to free speech by educating students about the responsible, appropriate use of technology and electronic communication. Embracing the teachable moment in this way will not only address the kinds of cyberbullying that lie outside our current legal protections for threatening and harassing speech, but will also prepare students for the obligations of citizenship. Schools should work to ensure that the next generation of citizens fully appreciates the right to free speech. That understanding will both ensure the protection of a core foundation of our democracy, and prepare our students to engage in the type of civil discourse that is critical to our democratic system.

1. DANGERS OF UNRESTRAINED STUDENT SPEECH

   Kids are mean to each other. Whether viewed as an acceptable rite of passage or as a social ill worthy of substantial intervention on the part of parents, educators, and legislators, bullying has been a part of growing up for generations. It should come as no surprise, then, that today's technologically savvy youth engage in bullying behaviors through the same technology they use to interact with each other and the world.

   Sadly, research has documented that bullying is a common and often damaging form of violence among children. (4) While the prevalence of bullying has only recently become a focus of statistical study, and results vary based on methodology and definition, the conclusion that children experience bullying from their peers in significant numbers is inescapable. One study of junior high and high school students in small midwestern towns, for example, found that an astounding 76.85 percent of students reported having been victims of bullying at some point in their school experience. (5) It is possible, however, that the retrospective nature of the study's inquiry may account for the large result. Other studies have reported results with much smaller, but still significant, victim rates--from fifteen to twenty percent (6) to eight percent. (7) A study published in the prestigious Journal of the American Medical Association and involving a large (nearly 16,000) representative sample of students in grades six through ten reported that nearly 30 percent of youths experienced "moderate or frequent involvement in bullying...." (8) Moreover, after reviewing multiple studies with varying results, two other authors concluded that "[o]verall, conservative estimates maintain that at least 5 percent of those in primary and secondary schools (ages 7-16) are victimized by bullies each day--but the percentage may well be much higher." (9) As an undeniable sign that bullying is a deep and abiding problem, this year, for the first time, the American Academy of Pediatrics will include a section on bullying in its official policy statement on the pediatrician's role in preventing youth violence and will advocate a prevention model. (10)

   Just as researchers have now documented the prevalence of traditional bullying, so too have they established the serious detrimental effects of bullying, both to victims and perpetrators. The research suggests that bullying behaviors tend to peak in younger children, most notably in middle school, and then generally decline with age, (11) but the ramifications often last much longer. Victims of bullying often feel lonely, humiliated, insecure, and fearful of going to school; they experience poor relationships, have difficulty making friends, and struggle with emotional and social adjustments. (12) In addition to experiencing physical and psychological problems contemporaneous to the bullying, such as anxiety, depression, truancy, and a drop in grades, victims are also at an increased risk for a host of long-term effects, including depression, low self-esteem, and mental health problems as adults. (13) Repeated and severe bullying can cause lifelong psychological trauma, and adults can struggle with the repercussions of childhood bullying in the same way that survivors of child abuse do. (14)

   It is not just victims of bullies that suffer negative consequences, however. For instance, both bullies and their victims are more likely to drop out of school. (15) Bullies tend to have difficulty with relationships in general, and with parents and friends in particular. (16) They often fail to develop coping skills, do not learn how to manage emotions or communicate effectively, and thus have difficulty succeeding in the adult world. (17) And, alarmingly, bullies are more likely to be involved in criminal behavior as adults, (18) be abusive towards their spouses, and perpetuate the cycle of bullying into the next generation by having more aggressive children. (19)

   Take the dynamic of traditional bullying and superimpose a generation of kids who are fully wired--frequent and savvy users of the Internet, email, instant messaging, and social networking sites through a variety of media devices, from desktop and laptop computers to cell phones and personal digital devices (20)--and you have the perfect storm for cyberbullying. The brief taunt on the playground or the bus heard only by a few becomes a nasty, profanity-laced comment on a Web page, often anonymous, complete with an embarrassing photo, and viewed by a potentially unlimited number of people, both known and unknown. In short, "[b]ullying has entered the digital age." (21)

   Young people utilize technology in significantly large numbers. An overwhelming number of teens are adept Internet users, most of whom access the Internet daily for a variety of tasks, including playing games online, shopping, and seeking news and health information. (22) "For most teenagers, technology plays a crucial role in their everyday lives, and the internet is the backbone of their overall media milieu." (23) Students, aged twelve to seventeen, not only significantly exceed the rate of adult Internet use (by twenty-one percent), (24) but more and more young people are using instant messaging, both online and off, for a wide array of communication tasks. These include making plans with friends, conferring about homework, joking around, checking in with parents, and posting messages about what they are doing while away from their computers. (25) Furthermore, an overwhelming majority of teens, eighty-four percent, also own devices that provide access to the Internet and each other, including desktop and laptop computers, cell phones, and other personal digital devices, with nearly half of those reporting that they own two or more of these devices. (26) Theirs is...