From the school yard to cyberspace: a review of bullying liability.

• Author: Jaffe, Elizabeth M.

1. INTRODUCTION II. PUBLIC SCHOOLS AND THE FIRST AMENDMENT A. The Effects of Bullying Liability with Protected First Amendment Speech B. Why School Yard Regulation Helps Prevent the Effects of Bullying III. THE "CYBER SLAP" A. The Principles of Vosburg v. Putney B. Tyler dementi C. The Need for the "Cyber Slap" IV. THE DEMISE OF BULLYING LIABILITY BASED ON A CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED) A. The History of IIED B. The Effects of Snyder v. Phelps C. Why Cyberbullying Fails to Satisfy, Extreme and Outrageous Conduct V. Webhost Liability A. The Growing Need for Imposing a Duty in the Online World B. Holding the Webhost Liable VI. PRIVACY LAWS AND THE FUTURE OF BULLYING LIABILITY VII. CONCLUSION I. INTRODUCTION

   There has been a lot of change--both good and bad--over the course of scholarship focusing on bullying and cyberbullying. With the growing use of technology, bullies have moved from in-person encounters in the classroom or the schoolyard to chatrooms, walls, pages, and the like in the cyberworld. Despite the increased awareness and media coverage, bullying remains a growing problem in today's society. To that end, there are current voids in the law that need to be revised in order to protect the countless and growing number of victims. Simply put, the law has not gone far enough. (1)

   Through my research and involvement with this area of scholarship, there are few things that are clear. The First Amendment protects speech and ideas in the traditional sense but fails to adequately adapt to the changing online landscape. Traditional tort principles of liability have not played out yet to holding a bully liable for his actions, and the notion of holding the webhost liable has not taken hold to the extent that may be necessary. As such, we are left with the dilemma of where the legal landscape needs to proceed. Specifically, some type of duty is needed for bullying liability. But to whom should this duty apply? Accordingly, the purpose of this Article is to synthesize my scholarship to date focusing on the issue of bullying and cyberbullying in the context of primary and secondary education and propose resolutions to the cyberbullying epidemic by reviewing the appropriate instances and individuals to whom a duty should be imposed. (2)

   To accomplish this goal, Part II focuses on the extent to which public schools can limit, permit, or censor speech by analyzing the effects of bullying liability in light of the established pillars of First Amendment protections. Part III follows by reviewing and applying the principles of Vosburg v. Putney to the facts of the Tyler Celmenti story and the need for recognition of the "cyber slap." Part IV then details the history of the civil claim for intentional infliction of emotional distress and the Supreme Court's opinion in Snyder v. Phelps. From the historical lens, Part IV concludes by detailing why cyberbullying fails to establish the linchpin elements of a claim for intentional infliction of emotional distress: extreme and outrageous conduct. Part V explores the theory of preventing the effects of cyberbullying by imposing a duty on webhosts to monitor the actions of its users designed to harass, injure, or inflict harm upon the bullied. Part VI then reviews the current role of privacy laws as a potential solution to this issue by incorporating these principles into the prevention of cyberbullying.

2. PUBLIC SCHOOLS AND THE FIRST AMENDMENT

   1. THE EFFECTS OF BULLYING LIABILITY WITH PROTECTED FIRST AMENDMENT SPEECH

      The threshold issue is not what speech can or should be censored, but whether a school can censor the speech of its students. In addressing this question, it logically follows that if a student has a right to education, (3) then the school has a duty to protect against the interference, or disturbance, with the pursuit of this right. In satisfying this duty, school officials, administrators, and teachers need to be charged with fostering an environment for learning while preventing speech with the sole purpose of harassing, embarrassing, or harming the individual student. Yet what avenues equip school officials with the necessary mechanisms and methods for completing this task?

      The Supreme Court of the United States classifies school speech as: (1) Tolerated; (2) Disruptive to the educational mission; (3) Vulgar or offensive and thus inappropriate; or (4) Speech that interferes with the rights of another student or students, such as language that disparages a person on the basis of core characteristics. (4) These principles are distilled from the hierarchy set forth in Fraser, (5) Hazelwood, (6) and Tinker (7) and can be summarized as follows: "(1) vulgar, lewd, obscene, and plainly offensive speech ... is governed by Fraser, (2) school-sponsored speech . . . is governed by Hazelwood, and (3) all other speech ... is governed by Tinker." (8)

   2. WHY SCHOOL YARD REGULATION HELPS PREVENT THE EFFECTS OF BULLYING

      The effects of cyberbullying must be considered in the regulation of schoolyard speech. But in the context of cyberspace, where does the classroom end and the schoolyard begin? School officials are permitted to censor speech that is: (1) reasonably thought to be disruptive or to lead to disruption even if only meant as an invitation to discourse; (2) inappropriate in the closed forum of a public school; (3) uncivil, demeaning, or disrespectful; (4) meant to harass, intimidate, or bully regardless of its truth content; or (5) violative of the rights of others. (9) Perhaps the last, violative of the rights of others, is the place where the cyberbullying liability could begin. Is there a right not to be bullied? Perhaps schools must be forced to deal with such speech that "violates" the rights of others. And in fact, speech not otherwise censorable could be censored based upon the context and content of the speech.

      Is there a right to be left alone, specifically in the classroom or on the Internet? Is there a right to be protected from being attacked on one's core characteristics? And if there is such a right, who has the duty to protect? The Supreme Court has recognized a right in discussing a school's ability to prohibit certain types of student speech, and the States which have passed laws with schools becoming in loco parentis. Specifically, this doctrine provides immunity for school officials and teachers acting in that capacity for acts of negligence unless willful or malicious conduct can be demonstrated. (10) In Morse v. Frederick, Justice Thomas reasoned that it could not be seriously suggested that the freedom of speech afforded by the First Amendment encompasses a student's right to speak in public schools. (11) Yet the courts have repeatedly deferred to the school's authority to create the policy and rules and to be the ones who discipline students for violating these rules. And this is done through reliance on the in loco parentis status even though it does not in and of itself establish a custodial relationship.

      But what about the conduct that takes place outside of the schoolyard? The Supreme Court has yet to speak on the scope of a school's authority to regulate expression that does not occur on the school grounds or a school sponsored event. Yet with cyberbullying, much of the activity takes place outside of the schoolhouse gates. And while the bullying statutes adopted by the States provide protection for use of a school's website or computer, what about conduct that takes place at home?

3. THE "CYBER SLAP"

   1. THE PRINCIPLES OF VOSBURG V. PUTNEY (12)

      One day in 1889, a twelve-year-old boy kicked his fourteen-year-old classmate in the leg. (13) More importantly, the altercation between the boys occurred after the school day commenced. (14) Despite the altercation being within the societal norms of schoolboy disputes at the time, coupled with the touching being very slight, the offensive contact aggravated a preexisting condition causing the victim's leg to become lame. (15) In an attempt to recover for his injuries, Vosburg filed a civil action for battery against his attacker alleging liability on the harm stemming from the offensive touching. (16) In holding "the wrongdoer ... liable for all injuries resulting directly from the wrongful act, whether they could have been foreseen," the Vosburg court determined that while the bully may not have intended the physical injury to his victim, the kick, as an overt act resulting in the offensive touching to the person of another, was unlawful; constituting liability for the victim's injuries. (17)

      Although the Vosburg holding occurred over one hundred and twenty years ago, the principles set forth by the court equally apply today. Specifically, the slightest of movements has the potential of resulting in the foreseeable effect of harmful or offensive contact. Should Vosburg now apply to cyberbullies? The law of torts has certainly evolved to recognize the many harms individuals can inflict upon one another. Just as the kick resulted in extreme pain from the slightest movement in Vosburg, the simple act of posting the private acts of another individual on the Internet can result in extreme pain to the victim. As such, the time has come to find a way to hold the cyberbullies liable for their actions. Hiding behind the computer screen can no longer be used as a shield.

   2. TYLER CLEMENTI

      In September 2010, Tyler Clementi committed suicide by jumping off the George Washington Bridge. (18) The college freshman's suicide was allegedly the result of his roommate, Dharun Ravi, using "a webcam to secretly watch Clementi in an embrace with a young man." (19) In addition to the webcam viewing, the actions were broadcast through social media where: "Ravi gossiped about [Clementi] on Twitter: 'I saw him making out with a dude. Yay.'" (20) What the webcam caught was not a private viewing though. (21) In fact, others were invited to share in the webcam invasion with Ravi and...