Running head: AN ANALYSIS OF CYBER BULLYING AND THE LAWS GOVERNING IT

The New Bullies: An Analysis of Cyber Bullying and the Laws Governing it. Adam P. Pratt The Legal Studies Academy

AN ANALYSIS OF CYBER BULLYING AND THE LAWS GOVERNING IT

Abstract Bullying has existed for generations; however, the concept of cyber bullying is an issue that has emerged within the past decade. When analyzing reports concerning cyber bullying there is not only such a large amount cyberbullies, but the effects are much more drastic (Lenhart etal., 2011). Victims of cyberbullies suffer a much harsher fate than those who are bullied offline (Pennsylvania State Education Association, 2009). Cyber bullying victims feel like there is no avenue for escape because face-to-face harassment is traded for harassment wherever there is internet (Lenhart etal., 2011). In response to this issue certain jurisdictions have attempted to prosecute cyberbullies but have had mixed results. A majority of the cases resulted in acquittal because the speech, labeled as cyber bullying, has been determined to be protected by the first amendment (Katherine, 2010). This is what leads many experts to suggest education as the best and most effective option to combat cyber bullying (Hoal, 2011).

AN ANALYSIS OF CYBER BULLYING AND THE LAWS GOVERNING IT

Introduction Cyber bullying is a growing problem among adolescents in the United States. (Science Daily, 2010) with some studies reporting up to 50% of respondents saying they have been cyber bullied(MTV, 2011). A cyber bully is a people who use electronic means of communication to harass, defame, threaten, or embarrass another person. Some sources limit cyber bullying to when a minor harasses, threatens or attempts to humiliate another minor via electronic means of communication. Stopcyberbullying.org(2011), an expert on cyber bullying and prevention, concurs that cyber bullying can only occur between two minors. However, most people in the legal field tend to define cyber bullying simply as the act of harassing, threatening, or other attempts to cause emotional distress to another person (US Legal). No matter what the definition, everyone can agree that cyber bullying is a problem with drastic effects. Not only is cyber bullying worse for the victims, prosecuting the offenders has proven difficult. Judges have ruled that cyberbullying, unless it causes some sort of direct harm, is protected by the first amendment (Katherine, 2010). This has lead to the development of courses to instruct students so they can minimize their risk, and be able to better handle cyberbullying situations (Hoal, 2011). Upon analyzing cyber bullying it has been found cyber bullying has more devastating effects on its victims, but is nearly impossible to prosecute because the speech is protected unless it leads to actual damage.

The Difference While cyberbullies often have the same goal or intentions as off-line bullies, their effects can be much different. The anonymity of the Internet, coupled with the widespread use by teens and young adults, leads to a brand of bullies that are nearly impossible to escape. This

AN ANALYSIS OF CYBER BULLYING AND THE LAWS GOVERNING IT

near inescapability of cyberbullies leads to the greater impact as opposed to non-cyber bullies. Because teens have a near constant connection to the internet, bullies have limitless opportunities to harass their victims. A report by the National Center for Education Statistics in 2005 reports that around 96 percent of kids between grades 6 and 12 have access to the internet.. Another study done by Donald F. Roberts in 2008 found that teenagers spent an average of 6.5 hours using internet media (Roberts & Foehr, 2010). When averaging in eight hours for school, and another eight for sleep, this only leaves 1.5 hours out of a day that teens are awake, not in school, and not connected to some form of social media. . A different report released by the Kaiser Family Foundation in 2010 says teens, especially minority teens, spend up to 53 hours a week on social media. This figure averages to 7.5 hours of internet media usage per day.

Often bullies use popular social networking sites like Facebook, or Twitter to harass their victims. A Pew Internet report, in 2011, states that over 80 percent of teens have a social networking account. In this same report, around 1/3 of teens said that their peers acted unkind while they communicated with their peers online. A poll conducted by the Associated Press and MTV, in 2011, found that 76% of teens say cyber bullying is a serious issue, with 50% of them saying they have personally experienced it. Cyberbullies often say more hurtful things over the internet than they would in person. This is thought to be attributed to the anonymity provided by the internet allows people to be braver in their posts. A Pew Internet report, in 2011, found that a variety of respondents said: they either observed, or they themselves, said ruder, meaner, and more hurtful things online than they would say in person. The same report quotes a respondent saying the reason for the phenomenon is the posters do

AN ANALYSIS OF CYBER BULLYING AND THE LAWS GOVERNING IT

not have to face the consequence of a face-to-face confrontation. Furthermore, John Suler published an article in 2004 called The Online Disinhibition Effect. He states that the internet causes a disinhibition, which causes some to reveal more than they normally would, but some to say things they normally would not. His dissociative anonymity theory says that people do this because of the relative ease of concealing ones identity and other personal information

The Responsibility Discipline of cyberbullies falls under the responsibility of the school, provided the speech is not protected by first amendment rights. The major argument for school discipline is cyber bullying disrupts the classroom environment. U.S. Education Secretary Arne Duncan said when children feel threatened, they cannot learn, at an August 2010 summit on bullying. As well, a bill going through Rhode Islands congressional house concerning bullying finds that bullying causes a significant distraction to the school environment, one that if not taken care of will escalate to violence. It is also said schools should discipline cyber bullies because it is the schools job to provide a secure learning environment. Nancy Willard, M.S., J.D. from The Center for Safe and Responsible Use of the Internet states in an article that Schools hold the liability for disciplining cyberbullies. Even off-campus speech falls under their jurisdiction as it causes a disruption in the school environment. Courts are citing the decision in Tinker v Des Moines where a school may only discipline a child for off-campus speech if it causes or threatens to cause a substantial or material disruption at school, or interferes with the rights of the students to be secure (Wilard, 2007). As well, The Los

AN ANALYSIS OF CYBER BULLYING AND THE LAWS GOVERNING IT

Angeles County Bar Association published an article, which states students have the inalienable right to attend safe, secure, and peaceful campuses (Terando, 2011).

However, some people believe schools do not have the right to discipline students for offcampus speech. Protesters of schools disciplining cyber bullies cite that expressing ideas and opinions are protected by the first amendment. In Evans v. Bayler(2010) Evans, a student, created a Facebook group describing one of her teachers as the worst teacher she has ever met three students commented in favor of the teacher and the group was removed 2 days later. Upon arriving back at school, Evans was suspended for three days, and removed from her AP classes for the Facebook post. The judge ruled in favor of Evans stating that her post and the following comments accomplished one of the main goals of the first amendment: the free and unfettered exchange of ideas in the public arena. The principles actions were ruled in violation of Evans first amendment rights. As well Nancy Willard, M.S., J.D. from The Center for Safe and Responsible Use of the Internet states in an article that forcing schools to discipline students for off-campus speech would require the schools to act in loco parentis while the student is still in their home (Willard, 2007).

Alternative solutions Educate students and parents the signs of a cyber bully and how to deal with one. Education in the form of awareness rallies, seminars, and teachings are the best way to combat cyber bullying. For the most part schools are powerless to stop most forms of cyber bullying because they are protected by the first amendments freedom of expression. Again in Evans v. Bayler (2010) Evans, a student, created a Facebook group describing one of her

AN ANALYSIS OF CYBER BULLYING AND THE LAWS GOVERNING IT

teachers as the worst teacher she has ever met three students commented in favor of the teacher and the group was removed 2 days later. Upon arriving back at school, Evans was suspended for three days, and removed from her AP classes for the Facebook post. The judge ruled in favor of Evans stating that her post and the following comments accomplished one of the main goals of the first amendment: the free and unfettered exchange of ideas in the public arena. The principles actions were ruled in violation of Evans first amendment rights. As well, Elizabeth J. Meyer, Ph.D. in Gender and Schooling from psychology today highlights just how narrow the line is between illegal cyber bullying, and first amendment protected speech (Meyer, 2010). As another option, education programs have shown promise in curbing cyber bullying, or at least the impact of the bullies. A yoursphere.com article highlights the achievements of Linda Criddle, a former safety expert form Microsofts MSN. Her website netskills4life is designed to help educate kids from kindergarten to 18 years old on internet safety and cyber bully awareness (Hoal, 2011).

Conclusion Cyber bullying is a growing issue that affects a substantial amount of adolescents. Cyber bullying is to harass, defame, threaten, or embarrass another person (STOP Cyberbullying, 2011). Cyber bullying has been found to cause more harm to their victims as opposed to face-toface harassment (Pennsylvania State Education Association, 2005). With cyber bullying, the bullies have access to their victims nearly 24 hours a day, 7 days a week, so victims feel like there is no escape (Lenhart etal., 2011). Another significant issue with cyber bullying comes with trying to prosecute the harassers. Judges have ruled the speech used by cyber bullies falls under first amendment protection, unless there is definite harm (Katherine, 2010). . Because of the inabil-

AN ANALYSIS OF CYBER BULLYING AND THE LAWS GOVERNING IT

ity to prosecute, classes are being implemented in schools in order to minimize the impact on a cyber bullying victim and help them to avoid cyber bullying in the first place (Hoal, 2011). In conclusion, cyber bullying has more devastating effects on its victims, but is nearly impossible to prosecute because the speech is protected unless it leads to actual damage.

AN ANALYSIS OF CYBER BULLYING AND THE LAWS GOVERNING IT

References Duncan, A. (2010, August 11). Partners Will Come Together to Develop a National Strategy for Reducing and Ending Bullying. Ed.gov. Retrieved November 16, 2011, from http://www.ed.gov/news/media-advisories/us-education-secretary-keynote-departments-first-ever-bullying-summit Hoal, M. (2011, June 8). An Internet-Safety Educational Tool That Shows Great Promise. Yoursphere. Retrieved November 23, 2011, from http://internetsafety.yoursphere.com/2011/06/an-internet-safety-educational-tool-that-shows-great-promise.html Kaiser Family Foundation (2010, January 20). DAILY MEDIA USE AMONG CHILDREN AND TEENS UP DRAMATICALLY FROM FIVE YEARS AGO. Kaiser Family Foundation. Retrieved November 16, 2011, from http://www.kff.org/entmedia/entmedia012010nr.cfm Katherine Evans v. Peter Bayer, No. 08-61952-CIV-GARBER, 2010 U.S. Dist. Entered on FLSD Docket 02/12/2010 Lenhart, A., Madden, M., Smith, A., Purcell, K., Zickuhr, K., & Rainie, L. (2011, November 9). Teens, kindness and cruelty on social network sites. Pew Internet. Retrieved November 23, 2011, from http://pewinternet.org/Reports/2011/Teens-and-social-media.aspx Meyer Ph.D, E. (2010, December 30). Cyberbullying, sexual harassment vs. free speech wheres the line?. Psychology Today. Retrieved November 16, 2011, from http://www.-

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psychologytoday.com/blog/gender-and-schooling/201012/cyberbullying-sexual-harassment-vs-free-speech-where-s-the-line MTV (2011, August 31). Executive Summary: 2011 AP-MTV Digital Abuse Study. A Thin Line. Retrieved November 16, 2011, from http://www.athinline.org/pdfs/MTV-AP_2011_Research_Study-Exec_Summary.pdf National Center for Education Statistics (2005, June). Rates of Computer and Internet Use by Children in Nursery School and Students in Kindergarten Through Twelfth Grade: 2003. Issue Brief. Retrieved November 16, 2011, from http://nces.ed.gov/pubs2005/2005111.pdf Pennsylvania State Education Association (PSEA). (2009). Dealing With The Cyber Bully [Brochure]. Pennsylvania State Education Association. Roberts, D. F., & Foehr, U. G. (2010, March). Trends In Media Use. The Future of Children. Retrieved November 16, 2011, from http://futureofchildren.org/publications/journals/article/index.xml?journalid=32&articleid=55 Science Daily (2010, February 22). Cyberbullying: A Growing Problem. Science Daily. Retrieved December 18, 2011, from http://www.sciencedaily.com/releases/2010/02/100222104939.htm STOP Cyberbullying (n.d.). What is cyberbullying, exactly?. Stope Cyberbullying. Retrieved November 16, 2011, from http://www.stopcyberbullying.org/what_is_cyberbullying_exactly.html

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Suler, J. (2004, August 4). The Online Disinhibition Effect. Psychology of Cyberspace. Retrieved November 16, 2011, from http://users.rider.edu/~suler/psycyber/disinhibit.html#anonymity Terando, J. (2011, March). Defining the Scope of a Schools Duty to Supervise Students. Practice Tips. Retrieved November 16, 2011, from http://www.lacba.org/Files/LAL/Vol34No1/2791.pdf US Legal (n.d.). Cyberbullying Law & Legal Definition. US Legal. Retrieved November 16, 2011, from http://definitions.uslegal.com/c/cyber-bullying/ Wilard, N. (2007, March). Where are the Boundaries of the Schoolhouse Gate in the New Virtual World?. Cyberbullying Legislation and School Policy. Retrieved November 16, 2011, from http://csriu.org/cyberbully/docs/cblegislation.pdf