Where good intentions go bad: redrafting the Massachusetts cyberbullying statute to protect student speech.

AuthorMcDonough, Patrick E.

"'People don't appreciate how much the 1st Amendment protects not only political and ideological speech, but also personal nastiness and chatter.... If all cruel teasing led to suicide, the human race would be extinct.'" (1)

"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and ... inflict great pain." (2)


    On January 14, 2010, Phoebe Prince, a fifteen-year-old Irish immigrant and student at South Hadley High School, took her own life. (3) While the reasons for Phoebe's suicide remain unknown, what emerged in the broader media coverage of her death was an allegedly systemic pattern of bullying throughout her high school, a pattern ignored by administrators, faculty, and parents. (4) Phoebe's enemies attacked her with verbal insults, both in school and electronically outside of school, via Facebook. (5) Massachusetts officials sprang quickly into action after the media onslaught following Phoebe's death. (6) Northwestern County District Attorney Elizabeth Scheibel charged five of Phoebe's classmates with a multitude of crimes stemming from their reported bullying of her, including civil-rights violations with bodily injury, criminal harassment, and stalking. (7) The Massachusetts General Court also acted swiftly, passing what many experts deem the most sweeping and powerful antibullying statute in the nation. (8) The statute creates a broad scope of illegal activities for which students can face punishment, including incidents of cyberbullying that occur outside school walls. (9) Because the statute grants school administrators unique authority, Massachusetts now stands as a model testing ground for the national movement to curb bullying incidents in public schools. (10)

    As researchers further explore the impact of cyberbullying on adolescents, many fear cyberbullying causes greater harm to victims than traditional bullying because of the nature of the Internet and other electronic communication. (11) According to a federal government initiative supported by President Obama, student-on-student bullying is a "major concern" in schools across the country, and can cause victims to become depressed and anxious, to refuse to go to school, and to contemplate suicide. (12) Further studies show a correlation between teenage victims of cyberbullying and increased contemplation of suicide or attempted suicide. (13) A 2010 study found that one in five middle-school students were affected by "willful and repeated harm" inflicted through electronic communication. (14) The Internet can electronically shield cyberbullies under a cloak of anonymity, preventing a victim from discovering the identity of the bully and increasing the vitriol felt by the victim. (15) The ease of electronic communication allows cyberbullies to reach past school walls and into the houses of victims whose fear now extends beyond traditional school hours. (16) Additionally, communication technologies and social-networking sites distribute cyberbullies' material to hundreds or thousands of people instantaneously, prolonging the duration of bullying and the associated embarrassment of the victim. (17) Unlike the school environment, electronic communications between adolescents remain relatively unmonitored by parents or other authorities, allowing repeated perpetration of the abuse. (18)

    The Massachusetts statute reflects a growing trend of states attempting to curtail bullying of students via electronic media both inside and outside the classroom. (19) While most cyberbullying occurs outside the school walls, its effects are ever present within the school environment, contributing to the heightened sense of fear and hostility bullying victims face. (20) A majority of states have sought to give school administrators the legal tools to combat cyberbullying in the form of antibullying statutes that specifically target electronic communications, with varying degrees of protection for students' constitutional rights to free expression. (21) This trend reflects the growing realization that bullying no longer takes place exclusively during the school day and that today's children communicate significantly through electronic means. (22)

    This growing trend of states addressing cyberbullying through statutory measures creates both direct and indirect conflict with traditional constitutional protections afforded student speech both inside and outside the school. (23) Even in this age of growing threats posed by cyberbullying, school administrators must not forget that students do not shed protected First Amendment rights at the schoolhouse gate. (24) The Supreme Court's past precedent in analyzing constitutional protections of student speech uses the "schoolhouse gate" as the line of demarcation, allowing schools to restrict student speech within the school (or at school-sponsored activities) if it disrupts the school environment, is lewd and vulgar and made to a captive audience, bears the imprimatur of the school, or advocates the use of illegal drugs. (25) In determining schools' ability to restrict speech deemed "cyberbullying," however, states argue that the Internet obviates the need for traditional geographic formalism distinguishing between on- and off-campus speech. (26) The Supreme Court's continued refusal to address cases concerning off-campus student speech leaves states, jurists, and school administrators in a tenuous position regarding their ability to restrict student off-campus cyberspeech they believe constitutes cyberbullying, forcing them to apply ill-fitting doctrines to a rapidly evolving problem. (27) Without clarification, Massachusetts and other states give school administrators the freedom to misguidedly apply these statutes to over-restrict student speech while attempting to protect students. (28)

    This Note details the legal history of prohibitions that courts and schools have placed on student free speech in Part II.A-B. (29) Part II.C examines previous Massachusetts legislation under Supreme Court precedent, and Part II.D addresses school liability under existing case law. (30) Part II.E examines the Massachusetts antibullying statute, discussing the scope of its definitions and geographic reach. (31) Part II.F outlines other states' attempts to statutorily limit the growth of cyberbullying and give school administrators authority to discipline students for off-campus student cyberspeech. (32) Part III then analyzes the Massachusetts statute in light of First Amendment jurisprudence to determine whether it comports with constitutional standards afforded students outside the classroom. (33) In addition, Part III outlines possible consequences stemming from the application of this statute across Massachusetts and argues that its broad definitions and grants of authority create susceptibility for misguided application by school administrators. (34) Lastly, Part III.D proposes changes to the statute that would help maintain protections for cyberbullying victims while preserving constitutional rights afforded to all students by partially adopting the Tinker standard for student-speech protection. (35)


    1. The Tinker Tetralogy: Four Supreme Court Cases Creating Exceptions to Student-Speech Protections

      The First Amendment prohibits Congress--and through the Fourteenth Amendment, the states--from "abridging the freedom of speech." (36) Courts and society have accepted as a "bedrock principle" of the First Amendment that "the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." (37) The Supreme Court has continually outlined the contours of its free-speech doctrine, but has yet to hear a case concerning the underlying facts of cyberbullying, where student speech specifically targets classmates for verbal abuse. (38)

      The Supreme Court's review of school officials' authority often begins by recognizing the high degree of deference afforded public-school officials' "comprehensive authority." (39) Because these officials perform important and highly discretionary functions, federal courts tend to exercise restraint when considering issues within the purview of public-school officials. (40) The scope of authority enjoyed by public-school officials--and the deference shown to them--is not unlimited, however. (41) The Supreme Court has held that the First Amendment unquestionably protects the free-speech rights of students in public schools. (42) While recognizing protection of student constitutional freedoms is of utmost importance, courts also recognize these rights must be applied in light of the special circumstances of the school environment. (43) These special circumstances mandating student constitutional rights, such as protection of free speech, are "not automatically coextensive with the rights of adults in other settings." (44) Since the seminal Supreme Court decision in Tinker v. Des Moines, courts have struggled to find the proper balance between strict protection of students' First Amendment rights and upholding school administrators' authority to maintain an appropriate learning environment. (45) This struggle colors the current debate regarding school administrators' ability to regulate off-campus cyberspeech, and the Supreme Court's unwillingness to hear any cases concerning this area has left the standard unresolved. (46)

      1. Tinker v. Des Moines

        In Tinker, the first of the Supreme Court's foundational opinions governing student speech in the educational setting, the Court held that schools have no ability to discipline students for any type of on-campus speech unless it materially disrupts school activities or substantially interferes with other students' rights within the school. (47) In December 1965, the Des Moines School District preemptively banned wearing black armbands in protest of the United States' participation in the Vietnam War. (48) Shortly thereafter, school...

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