Can We Wipe Out Cyberbullying Without Restricting First Amendment Rights?


As more and more speech occurs online, the Internet is the new First Amendment battleground

As more and more cases of cyberbullying come to light, parents, school officials, and legislators, are looking for ways to deal with the problem. But, since freedom of speech is one of our most universally valued founding principles, regulating it in any way always faces serious opposition. As different constituencies all over the country attempt to limit the effects of cyberbullying, First Amendment cases are finding their ways into the courts.

In August, a federal court found that two Pennsylvania teenagers could not be disciplined for negative comments made about school officials on MySpace. And less than two weeks ago, the Seventh Circuit held that an Indiana law barring sex offenders from social media was an unconstitutional violation of their First Amendment rights. But legislators continue to try and restrict speech, this time to end cyberbullying.

Cyberbullying is a real problem with long lasting effects on its victims. According to, online abuse can be worse than typical bullying because of its twenty-four hour nature, the ability for photos and messages to spread quickly and anonymously, and the inability to delete everything that has been posted, creating a permanent record of the bullying.

Victims of cyberbullying are more likely to use drugs and alcohol, skip school, receive poor grades, and suffer from other problems. The 2011 Youth Risk Behavior Surveillance Survey found that 16% of high school students were cyberbullied in the past year. Many readers probably remember the tragic 2010 story of Tyler Clementi, the Rutgers University freshman who jumped to his death after his roommate posted a video of him in a “sexual encounter” with another man live online.

Obviously there’s a real problem and there is also a real state interest in finding ways to prevent and police it, but whether it can be done effectively and without violating the First Amendment is yet to be seen. Indiana is the latest state to try. Indiana House Bill 1015 would allow school administrators to discipline students for “out-of-school activities that interfere with school purposes or educational function.” This would include comments and pictures posted on social media sites like Facebook ,or spread through other electronic means like text messages.

It is Eric Koch’s (R-Bedford) second attempt to go after cyberbullying — his last bill failed for being too broad — even though there is already another cyberbullying law on the books. The existing law bans harassment through computer networks or other kinds of electronic communication, but requires that the abuse be directed at a person through an “obscene message.” There are plenty of forms of cyberbullying that do not fit that bill. For example, when an anonymous administrator makes a Facebook Page degrading a specific person and other people “Like” it, those acts are not covered within the current law.

While principals and school administrators can try to step in, they have little legal power to do so.  The proposed Indiana law would give those administrators stronger legal footing if a case ever came to court and their authority was questioned.

But no matter how noble the cause, this is still speech regulation so there are real First Amendment implications. With this kind of power, what’s to stop a principal from interfering with speech that is constitutionally protected?  Frank LoMonte, executive director the Student Press Law Center has expressed his concerns over censorship and interference with parental authority. “If a student wants to post ‘school is a horrible place,’ they could be punished,” he added. “Or, what if they are handing out condoms on the weekends, and the school teaches abstinence? They could be punished for voicing any opinion contrary to the school’s position.”

The American Civil Liberties Union opposed Koch’s last version of the bill, as well as a similar bill that became law in North Carolina last year. It has yet to comment on the latest draft, but it is almost guaranteed that it will oppose this one too. And, even if the bill passes, it will have to stand up in the courts. Will  Koch and his colleagues be able to make the case that preventing cyberbullying is a compelling state interest, and the new law is narrowly tailored enough to promote only that interest?

About Deena Shanker

Deena is a writer living in New York City. She is a graduate of Barnard College and the University of Pennsylvania Law School. Covering women’s issues, politics, business, food and the environment, she has written for Salon,, Grist, and GOOD. When she isn’t writing, Deena enjoys reading anything by J.R.R. Tolkien, playing with her dog, and eating too much cheese. Deena tweets from @deenashanker.
Posted in: Constitutional, Internet, Law, Policy