Running head: CYBERBULLYING AND THE FIRST AMENDMENT

Cyberbullying and the First Amendment

Shelby Neimeyer
The University of Indianapolis
August 4, 2015

Running head: CYBERBULLYING AND THE FIRST AMENDMENT

Cyberbullying and the First Amendment

Introduction
Cyberbullying has increasingly become an issue in todays
society with the Internet on the rise. There have been many recent
cases that have tried to address cyberbullying, and interpret the issue
and its relation to the Constitution, specifically the First Amendment.
It is also important to discuss the relation and effect that education has
on this matter. The courts have done just that throughout the years of
trying to set a precedent for this new era legal issues.
Cyberbullying Defined
Before we can fully understand what cyberbullying is, we must
first define bullying. According to Hostetler (2014), bullying is used
broadly as shorthand for any communication that is not a true threat of
physical harm, but instead goes only so far as to offend, demean,
ridicule, embarrass, harass, or intimidate others. There is no inclusion
of true threats of harm in this definition. However, courts have held
that such threats of harm, if substantiated by evidence, are not
protected speech or, at least, courts have allowed school
administrators to take protective and/or disciplinary action without
much legal difficulty (Hostetler, 2014). Cyberbulling is a form of
bullying that takes place in electronic forums. One other definition of
cyberbullying, according to Murrhee (2010), is the willful and repeated
use of cell phones, computers, and other electronic communication

Running head: CYBERBULLYING AND THE FIRST AMENDMENT

devices to harass and threaten others. The broad definition the

federal governments interagency working group has offered is that
cyberbullying is any type of harassment or bullying (teasing, telling
lies, making fun of someone, making rude or mean comments,
spreading rumors, or making threatening or aggressive comments)
that occurs through e-mail, a chat room, instant messaging, a website
(including blogs), text messaging, and videos or pictures posted on
websites or sent through cell phones (Lidsky, 2012). So, there are
many different definitions of cyberbullying offered making it difficult for
courts to create a standard in cyberbullying cases. Cyberbullies can
threaten anonymously. The negative effects of cyberbullying can be
even stronger because it is so inescapable (Stewart, 2013). According
to Stewart (2013), cyberbullies can victimize a greater number of
targets in front of a larger audience without significant risk.
Technology provides a screen that allows people to hide behind, where
they do not have to be held accountable for their actions. This
anonymity creates a sense of invincibility for those who may otherwise
be afraid to engage in bullying behavior. This anonymity also can
heighten the victims fear factor (Stewart, 2013). A United States
Department of Education report discovered that about 19% of middle
school administrators had to handle a cyberbullying situation at daily
or at least once a week (Gavin, 2014).
Education and Cyberbullying

Running head: CYBERBULLYING AND THE FIRST AMENDMENT

Cyberbullying has a prominent relation to the education system.

Students are the most common victims of cyberbullying. Therefore,
cyberbullying often is compared to schoolyard bullying. Cyberbullying
is a new era of bullying because instead of the bullying stopping at the
end of the school day, the bullying can now continue 24/7 with the use
of electronic communication. There are two arguments concerning
schools ability to police cyberbullying. On one hand, it is argued that
cyberbullying that is off-campus cannot be restricted through schools
because it is against students First Amendment rights. While on the
other hand, the Supreme Court has allowed student speech restrictions
in certain scenarios (Howard, 2013). Schools have the ability to
regulate on-campus speech that conflicts with the schools educational
goals.
However, technology devices have made it hard to determine
where on-campus speech ends and off-campus speech begins
(Murrhee, 2010). The main question arises when state legislatures and
school districts implement anti-cyberbullying policies that pose a threat
to free speech: What are the First Amendment-based speech concerns
raised by anti-cyberbullying statutes adopted by public schools
(Murrhee, 2010)? Because a lot of student electronic speech
originates off-campus, courts first hesitated to classify it as school
speech. Some scholars still feel that "a child engaging in otherwise
protected expression off-campus and from a non-school-owned

Running head: CYBERBULLYING AND THE FIRST AMENDMENT

computer would seem to have a solid First Amendment right to engage

in such expression (Stewart, 2013)."
Since there is little Supreme Court precedent and federal
legislation on the matter, most states have made cyberbullying a
matter of school district policy, but only when it interferes with the
school environment. A number of district and circuit courts have
determined that off-campus speech that subsequently is brought to
campus or to the attention of school authorities is subject to the
substantial disruption test from Tinker without regard to the location
where the speech originated (Stewart, 2013). However, because of
the hidden nature of cyberbullying, its effects often does not qualify as
a substantial disruption under Tinker. In Tinker, school administrators
banned students from wearing black armbands on their sleeves to
express their disapproval of the Vietnam War. However, the Supreme
Court deemed this ban unconstitutional because it was an arbitrary
restriction on a students right to freedom of speech and expression
(Gavin, 2014). The Supreme Court reasoned that the students speech
was not aggressive, disruptive action. The speech was actually
silent, passive expression of opinion, unaccompanied by any disorder
or disturbance (Gavin, 2014). The Court stated that students do not
shed their constitutional rights to freedom of speech or expression at
the schoolhouse gate.
The campus presence argument should not serve as an a priori

Running head: CYBERBULLYING AND THE FIRST AMENDMENT

barrier to school discipline of cyberbullying for multiple reasons

(Waldman, 2012). First, a close reading of Tinker and its progeny
suggests that the Supreme Court never intended to create a bright line
between on-campus and off-campus speech. Second, even if it did, the
Internet's ability to affect our physical spaces and its transcendent role
in modern society and education makes that rule meaningless today.
Third, even if a campus presence mattered, the suggestion that
cyberattacking and cyberbullying are "mere speech" rather than
action, thus deserving First Amendment protection, fails as a matter of
theory and practice (Waldman, 2012). The Supreme Court has not
ever required a campus presence for school disciplinary authority
(Waldman, 2012). The Supreme Court has not addressed a schools
disciplinary authority over off-campus cyberbullying. However, the
Supreme Courts precedents interpret that the Courts school speech
cases apply regardless of any off-campus origin, and most of the lower
courts agree (Waldman, 2012). The Internets role in society and
education today makes the campus presence requirement outdated.
Although the campus presence requirement used to be essential for
lawful school discipline concerning student speech, that requirement is
dated considering the growth of the Internet as a social and
educational tool (Waldman, 2012). The two-tier framework that is tied
to geographic places in which the regulated communications occur is
very hard to apply to communication over the Internet or through other

Running head: CYBERBULLYING AND THE FIRST AMENDMENT

electronic devices. This is why the courts are struggling with whether
to apply general free speech principles or special student speech
standards to each dispute when cyberbullying and related cases reach
court (Waldman, 2012). The same problem exists for other forms of
student cyberspeech such as cyberdissing, because criticism or
lampooning of government officials and their conduct would receive
strong protection under general free speech principles, but could be
regulated under student speech doctrine to the extent it substantially
disrupted school operations or discipline (Waldman, 2012).
Internet Speech
The First Amendments protection of Internet hate speech is
completely different than the laws of many other nations. The Council
of Europe recently included in the Cybercrime Treaty a provision
against online hate speech, which outlaws any any written material,
any image or other representation of ideas or theories, which
advocates, promotes or incites hatred, discrimination or violence,
against any individual or group of individuals, based on race, color,
descent or national or ethnic origin, as well as religion if used as
pretext for any of these factors (Henry, 2009). The American Civil
Liberties Union brought the first case, Reno v. American Civil Liberties
Union, in the Supreme Court, where they declared speech on the
Internet equally worthy of the First Amendments protection (American
Civil Liberties Union). The Supreme Court decided that the government

Running head: CYBERBULLYING AND THE FIRST AMENDMENT

couldnt restrict a persons access to words or images on the Internet

(American Civil Liberties Union).
There have been other strides concerning Internet speech. The
Communications Decency Act seeks to prevent obscenity on the
Internet while promoting constitutionally protected forms of speech
(King, 2010). However, the CDA provides immunity from civil liability
for good faith efforts by Internet-service provider companies to
monitor and restrict illicit content by their users (King, 2010). In Zeran
v. America Online, Inc., the Supreme Court interpreted this provision as
providing absolute immunity for ISPs and website operators in
defamation cases (King, 2010). The Anti-Defamation League has
responded to hate crime on the Internet by bringing attention to
hateful content that may violate a ISPs particular terms of service
contract or code of conduct (Henry, 2009). It then asks the ISP to
remove the content. There have not been many cases in the United
States where legislation has been put in place to prevent hate speech
on the Internet. This is an example of the government being cautious
when considering prior restraint on speech.
Cyberbullying Laws
In response to many peoples outcry concerning cyberbullying,
legislators have made efforts to introduce new legislation to address
cyberbullying. Laws criminalizing cyberbullying come in two different
forms. Some of these laws update current criminal laws, such as

Running head: CYBERBULLYING AND THE FIRST AMENDMENT

harassment or stalking laws, to include cyberbullying. While others

create a whole new criminal law directed at cyberbullying (Lidsky,
2012). If these bills served their purpose, these laws would prevent
cyberbullying behavior and criminalize it in some instances (Meredith,
2010). There have been bills introduced at the state and federal level,
and each varies in its intent and scope. For example, cyberbully
victim, Ryan Halligan, committed suicide, and within seven months
Vermont Governor, Jim Douglas, signed the Vermont Prevention Act
(Meredith, 2010). However, the Act made no mention of cyberbullying
specifically, only bullying in a broad manner. Another example could
include Californias representative, Linda Sanchez, proposing a federal
anticyberbullying law after Hail Ketchums incident.
If Bobby posts a video . . . on his Facebook page that harasses
and threatens to rape and kill Ashley, that video isn't private. It is
not buried on Bobby's profile page somewhere. It is public. It
appears when any of Bobby's Facebook friends log in, right up
there in front of their home page so they can't miss it. And this
story isn't just hypothetical. It happened to a brave young
woman named Hail Ketchum Wiggins, who lives in southern
California near my congressional district. Similar bullying
incidents are happening everyday to young people across our
Nation (Meredith, 2010).
As of July 2010, there have been five states that have adopted

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legislation against cyberbullying specifically, and thirty that have at

least prohibited electronic harassment (Meredith, 2010). For example,
Missouri previously had a law preventing harassment that required the
offensive communication to be in writing or over the telephone. Since
then, the law has been amended to extend to cyberbullying, and has
made the punishment a class A misdemeanor, which can translate to
one year of imprisonment (Meredith, 2010).
Knowingly frightens, intimidates, or causes emotional distress to
another person by anonymously making a telephone call or any
electronic communication; or Knowingly communicates with
another person who is, or who purports to be, seventeen years of
age or younger and in so doing and without good cause
recklessly frightens, intimidates, or causes emotional distress to
such other person (Meredith, 2010).
Also, the Missouri law upgrades the crime to a class D felony,
which is punishable up to four years on imprisonment, if the
perpetrator is at least twenty-one years old and the victim is
seventeen years old or younger, or if the perpetrator is a repeat
offender of this crime (Meredith, 2010).
More recently, Colorado has taken a step towards addressing
cyberbullying through legislation by signing harassment legislation in
April 2015 that states that a person commits harassment if, with
intent to harass, annoy, or alarm another person, he or she: directly or

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indirectly initiates communication with a person or directs language

toward another person, anonymously or otherwise, by telephone,
telephone network, data network, text message, instant message,
computer, computer network, or computer system, or other interactive
electronic medium in a manner intended to harass or threaten bodily
injury or property damage, or makes any comment, request,
suggestion, or proposal by telephone, computer, computer network, or
computer system, or other interactive electronic medium that is
obscene. The law went into effect on July 1, 2015.
Another example of efforts to confront cyberbullying includes
Arkansas legislature in 2007 that addressed cyberbullying by changing
its requirement for schools to establish antibullying policies to
specifically outlaw bullying committed through an electronic act that
results in the substantial disruption of the orderly operation of the
school or educational environment (Meredith, 2010). The law also
defines bullying as the intentional harassment, intimidation,
humiliation, ridicule, defamation, or threat or incitement of violence by
a student against another student that causes or creates a clear and
present danger of physical harm (Meredith, 2010). The policies
required by the law can also apply to cyberbullying that occurs away
from school as long as it can be proven that the bullying is intended
for the purpose of disrupting school. Despite the shortcoming of
state cyberbullying laws, state legislators have responded more

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successfully to cyberbullying as an issue than those at the federal level

(Meredith, 2010).
Other Laws
Since there is almost an absence of cyberbullying laws, victims
can resort to tort law and certain criminal laws aimed at related
offenses, such as harassment and cyberstalking (King, 2010).
Traditional tort law provides one possible cause of action for
cyberbullies: defamation. Most cyberbullying cases could also be
considered defamatory which is material that harms the reputation of
another by making a false statement to a third person (King, 2010).
For a successful defamatory claim, a plaintiff must prove that the
statement was false, and caused material damage to his or her
reputation, which is not always easy. Some cyberbullying content may
be difficult to refute factually, and in the case of many young victims of
cyberbullying, it is hard to prove reputational damage because they
have not yet developed professional reputations in the community
(King, 2010). In states without criminal cyberbullying laws, victims can
pursue cyberbullies under related criminal charges, such as
harassment and stalking statutes. However, prosecutors must find an
arguably applicable law and build a case that fulfills the requirements
of a law organized to fight offline problems (King, 2010).
The First Amendment
The First Amendment guarantees freedoms concerning speech,

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religion, expression, assembly, and the right to petition.

Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the government for a
redress of grievances (Cornell University Law School).
However, it is important to consider that the First Amendment is
not absolute. There are certain categories of lesser protected
speech. If the government attempts to regulate speech on the basis
of concerns about its content, including the effect of certain content on
a listener, then such regulations are subjected to strict scrutiny and
usually invalidated (McDonald, 2012).
There have been arising incidents where the courts have ruled
saying that cyberbullies get the First Amendment protection. In New
York, a law that criminalized cyberbullying was struck down by the
Court of Appeals saying that the law trampled free speech right of
online bullies (Short, 2014). The decision stated, Although the First
Amendment may not give defendant the right to engage in these
activities, the text of Albany Countys law envelops far more than acts
of cyberbullying against children by criminalizing a variety of
constitutionally protected models of expression (Short, 2014). There
are some opinions that say there are better and more constructive
ways to address the cyberbullying than giving children criminal

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records. Criminalizing First Amendment activity is unlawful (Short,

2014).
From a First Amendment prospective, laws that criminalize
cyberbullying laws seem especially prone to overreach in ways that
offend the First Amendment (Lidsky, 2012). This often means the
suppression of protected speech, misdirection of prosecutorial
resources, misallocation of taxpayer funds to pass and defend such
laws, and the blocking of more effective and constitutionally
permissible reforms (Lidsky, 2012). The constitutional error in many
cyberbullying laws is that it conflates the definition of cyberbullying as
a social problem with the legal definition of cyberbullying as a crime,
leading to laws that violate the First Amendment (Lidsky, 2012).
Cyberbullying as a social issue has a broad scope and provides many
definitions. However, the First Amendment demands that lawmakers
use narrower and less politically fulfilling definitions (Lidsky, 2012).
There are some constitutional hazards to updating criminal
harassment laws. As mentioned above this is what exists in the
Missouri amended law. Its amendment was aimed to fix its already
existing constitutional flaws, while not creating anymore. However, it
may not have been completely successful True threats, as defined by
the Court, are communications in which a speaker manifests a serious
expression of an intent to commit an act of unlawful violence to a
particular individual or group of individuals. The speaker need not

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actually intend to carry out the threat (Lidsky, 2012). True threats
exist outside of the First Amendments protection because they disrupt
those at which they are directed towards, provoking fear and
intimidation (Lidsky, 2012). Missouri attempted to include the true
threats definition to ensure the laws constitutionality, however the
term knowingly is not definitely constitutionally sufficient (Lidsky,
2012).
The First Amendment must be carefully examined to determine
whether or not a specific cyberbullying policy is constitutional or not.
There is not any Supreme Court case that does just that. The Court
has shown confusion on how and when to apply precedents involving
student speech and cyberbullying (Goodno, 2011). There are some
ideas that have been brought to the table as to how to analyze
cyberbullying policies. For example, the two-prong framework
involves a jurisdictional and substantive inquiry: (1) the school must
first decide whether it has jurisdiction over the speech. The legal
standard differs depending on whether the speech originated on- or
off-campus (the harder cyberbullying cases usually involve speech
originating off-campus); if the school has proper jurisdiction, then (2)
the school must determine whether, as a matter of substantive law, it
can indeed regulate the speech. This second inquiry will fall into two
subcategories: (i) whether the school is able to categorically regulate
the speech; and if not, then (ii) under the Tinker standard, whether

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the speech materially disrupts class work or substantially impinges on

the rights of others (Goodno, 2011).
Conclusion
The courts will continue to interpret the Constitution on the issue
of cyberbullying until they come to a conclusion that sets a precedent.
There are many kinks in the rope that they have yet to work out.
There have been many laws introduced, and some that have passed,
addressing cyberbullying. These laws vary from state to state. The
Internet has brought a new era of legal issues that will continue to be
confronted.

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References
American Civil Liberties Union. https://www.aclu.org/issues/freespeech/internet-speech
Cornell University Law School.
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Gavin, B. R. (2014). Cyberbullying and the 1st amendment: The need
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Goodno, N. H. (2011). How public schools can constitutionally halt
cyberbullying: A model cyberbullying policy that considers first
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The Wake Forest Law Review. 641-700
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