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Cyberbullying and the First Amendment

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In todays world and the 21st century technology is everywhere and access to that technology is at everyone’s fingertips. Due to social media sites such as Facebook and Twitter things like cyberbullying have become a new way of bullying

The definition of cyberbullying is “bullying that takes place using electronic technology” (What is Cyberbullying). This paper will talk about the topic of cyberbullying and the steps that I am required to take if I hear from a student that they are being bullied on Facebook. This paper will also talk about any First Amendment arguments that the student with the Facebook page might raise and my responses.

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Cyberbullying presents First Amendment issues because the statutes often criminalize speech and some of the language in certain laws and regulations arguably is overly broad or vague

For example, the New York Court of Appeals invalidated Albany County’s cyberbullying law as overbroad in People v. Marquan M. The defendant, a high school student, posted sexually explicit pictures of classmates on the Internet.Prosecutors charged him with violating Albany County’s law, which read: "any act of communicating or causing a communication to be sent by mechanical or electronic means, including posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail, with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person." The New York Court of Appeals reasoned that the law was too broad, because it “embraces a wide array of applications that prohibit types of protected speech far beyond the cyberbullying of children.” The North Carolina Supreme Court invalidated its state cyberbullying law in State v. Bishop (2016). This case also involved a high school student who posted negative comments about a classmate under a sexually explicit photo. The state law prohibited the use of a computer to “post or encourage others to post on the internet private, personal or sexual information pertaining to minors” with the intent to intimidate or torment a minor.

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The ubiquitous nature of cyberbullying leaves the victim incapable of escaping the torment and ridicule at the end of the school day. The increase in school violence and highly publicized student suicides have brought cyberbullying to the forefront, leaving legislatures and school officials searching for ways to enact tougher laws and impose stricter disciplinary measures and policies to prevent and remedy cyberbullying. The divergent opinions in lower courts have left many school administrators unable to confidently discipline cyberbullying because administrators are forced to conduct a delicate balancing test between students’ constitutional rights and the administrators’ power to police off-campus student-on-student harassment. Courts must not allow cyberbullies to hide behind the cloak of the First Amendment and must give schools deference to curb the harmful effects of cyberbullying (Kevin P. Connolly, 2013)

However, the introduction of social networking has catapulted bullying into the conscience of our nation. With constant connectivity of cell phones and laptops, bullying for some students has become “inescapable.” It used to be a parent could be relatively assured that their kids were safe in their room, but that's no longer the case. America has witnessed the rise of the cyberbully. Cyberbullying is defined as the “willful and repeated harm inflicted through the medium of electronic text (Kevin Turbert, 2009).” Cyberbullying differs from traditional bullying in several ways.

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Generally speaking, cyberbullying is “conduct that disrupts a student’s ability to learn and a school’s ability to educate its students in a safe environment”

The Senate Bill amendments include increased accountability for public school districts, which include the mandatory adoption of a policy prohibiting acts such as harassment and cyberbullying. The policy must also include the requirement that a school employee report such an act of cyberbullying to the appropriate school administrator. Resultantly, the first step in this case is to report this alleged cyberbullying to the school principal.

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Kevin P. Connolly, Rebecca Sedwick’s Mom Hires Morgan & Morgan in Cyber bullying-Suicide Case, Orlando Sentinel (October 22, 2013)

Kevin Turbert, Faceless Bullies: Legislative and Judicial Responses to Cyberbullying, 33 Seton Hall Legis. J. 651, 652 (2009).

Shaheen Shariff, Cyber bullying: Clarifying Legal Boundaries for School Supervision in Cyberspace, 1 International Journal of Cyber Criminology (January 2007).

Daniel B. Wood, Cyberbullying: Should schools police students' social media accounts?, The Christian Science Monitor (September 17, 2013)

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