cyberbullying-legal-issues (1).pdf

cyberbullying-legal-issues (1).pdf - Cyberbullying...

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1 When we first started studying cyberbullying over a dec- ade ago, very few states had comprehensive anti-bullying legislation and none of those included specific infor- mation about cyberbullying. Now just about every state has something on the books related to this issue. What is more, federal law can be implicated in certain cyberbully- ing incidents, especially when student speech is being restricted or if one’s civil rights are violated. Because the law is continuously evolving and little crystal-clear con- sensus has been reached regarding key constitutional and civil rights questions, schools struggle to appropriately address problematic online behaviors committed by stu- dents while simultaneously avoiding any civil liability. It is important to acknowledge before moving forward that we are not attorneys. Even those who are, and who specialize in harassment or student speech cases, struggle with the complexities involved in applying outdated legis- lation or conflicting case law new electronic communica- tions. With this in mind, this fact sheet will provide you with a summary of what is currently known, and you can apply this information to your unique situation (after careful consultation with appropriate legal counsel). Cyberbullying Legislation As of January of 2015, forty-nine states (all but Montana) have enacted bullying prevention laws (for a regularly updated list of state legislation, please see: www.laws.cyberbullying.org ). All of these require schools to have policies to deal with bullying, and almost all of them refer to electronic forms of harassment (or cyber- bullying specifically), but there exists great variation across states regarding what exactly is mandated. A few states formally criminalize cyberbullying; that is, they specify criminal sanctions such as fines and even jail time for the conduct. In addition, many cyberbullying behaviors already fall under existing criminal (e.g., har- assment, stalking, felonious assault, certain acts of hate or bias) or civil (e.g., libel, defamation of character, inten- tional infliction of emotional distress) legislation, though these laws are infrequently implicated. Also, most forms of cyberbullying do not demand formal (legal) interven- tion (e.g., minor teasing). Like traditional bullying, cyber- bullying behaviors vary significantly along a continuum ranging from isolated, trivial, and innocuous incidents to serious and enduring torment. The problem is that few can agree on the precise point at which a particular be- havior crosses the threshold and becomes something that should be addressed in a courtroom. Most states have balked at passing new laws to further criminalize cyberbullying and instead opted to direct schools to deal with the problem. When it comes to the authority and responsibility of schools to regulate student speech, reference is usually made to one of the most influ- ential U.S. Supreme Court cases: Tinker v. Des Moines Independent Community School District (1969). In Tink- er , the Court ruled that the suspensions of three public
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