Throughout history, people of all ages and backgrounds have dealt with various difficulties as they navigate through life. One of the most traumatizing, for many people, is bullying. Bullying is defined as “an intentional act that causes harm to others, and may involve verbal harassment, verbal or non-verbal threats, physical assault, stalking, or other methods of coercion such as manipulation, blackmail, or extortion.”. Bullying use to be an act that was done in person. Most common, was at school or other communal places. These scenarios of bullying depicted in movies or television is usually what one may think of when you say “bullying.” Whether it is a group of people picking on one person(s) or one person targeting another individual. There are even rare cases where the people involved are equally at fault, by bullying each other. Regardless of the dynamics, bullying has affected every family.
According to The National Center for Educational Statistics, African American students and Caucasian students account for almost half of reported bullying at school. However, that is only accounting for reported bullying. According to Wristband Resources, only thirty-six percent of children bullied have reported it. This means that getting a clear picture of bullying, its effect, and the most fitting remedy may be a challenge. Whether it is reported or not, it does not seem to be a secret that bullying is plaguing our society. It is not limited to children; bullying affects people of all ages, size, and background. The worst part about it is that, prior to the internet and social media, people could escape such treatment. Nowadays, the bully can follow you around the world and even inside your home by way of electronic devices.
Cyberbullying is when someone “is tormented, threatened, harassed, humiliated, embarrassed or otherwise targeted by another person using the Internet, interactive and digital technologies or mobile phones. Police in Florida are charging two middle school students with cyberstalking after 12-year-old Gabriella Green hung herself.The two students, one boy and one girl, bullied her in person, on social media, on the phone and through text messages. The accused girl told officers she intended to cause problems between Gabbie and another child and made derogatory comments verbally and electronically, a police report said. "Her actions consisted of starting rumors of the victim having sexually transmitted diseases, vulgar name-calling ... and threats to 'expose' personal and sensitive details of the victim's life." The suspect deleted messages upon learning of the death, police said. The accused boy said Gabbie texted him to say she was having a bad day and had attempted to hang herself and had marks on her neck, police said. During a video chat, she discussed taking her life, and the boy said something to the effect of, "If you're going to do it, just do it" and ended the call.
Gabrielle Green’s case shows the difference in state laws and awareness. Just a year prior to the Green suicide, an 18-year-old shot herself in front of her family after continued cyberbullying. But unlike many cases, the cyberbullying of Brandy Vela did not stop there. The cyberbullying continued, after her death, with anonymous negative posts about her, mocking the family’s loss.
"Two days after her funeral, somebody opened up a social media page in her name," Vela said, "and people thought the family did it, so it started with people putting sincere condolences. After a few minutes, either four people or the same person posting four times said some things harassing Brandy about being a big fat cow, writing 'you finally did it' with a picture of a gun, writing 'you're a coward,' 'you should have done this a long time ago,' some really horrific things."
The family feels as though the cyberbullying has now been transferred toward the family as they struggle to deal with continued taunting of Brandy Vela.
These are just a few cases of several that happen all over the world on a consistent basis. Bullying has become normal and in some instances praised. Often times, the bully’s actions are being condoned and encouraged by peers. In rare cases, parents encourage the behavior, taking the stance that they rather their child be the bully versus the victim of bullying. In many cases, the bully has been bullied in the past. Here in America, it seems as though we have become numb to bullying. Everywhere we look, there is a negative influence, whether it be a television show or social media. Almost all the reality television shows encourage and highlight bullying, harassment, and fighting. Celebrities and politicians, including our President which falls under both categories, bully someone on a daily basis. On the other hand, they too are victims of cyberbullying on a daily basis.
Technology is at the root of the increased issue. With the development of technology, came the internet. Later Social media has developed. All three of these things are used by bullies to continue to bully people, sometime anonymously, despite the location of the bully. This is in comparison to our past where most bullying was in person or at least required that the bully know the location of the victim in order to target them. Nowadays, all a person needs is access to a phone, computer, or other electronic devices that can access text message, chat, or social media.
With all of the rules, policies, or guidelines, one may wonder how cyberbullying continues to be a growing concern. One of the problems is that it requires the victim or others to recognize the bullying and report it. In addition to reporting it to the social media company, one must report it to the local authorities in order to pursue a criminal charge. These federal and state laws do not always stop bullying, but all 50 states have now implemented anti-bullying laws.
Where Rights End and Consequences Begin
It is obvious that social media has been used as a weapon. Just as in the Green case in Florida, her bullies have been able to use it to torment not only the deceased teen but her family as well. That is exactly what the internet has been used as, a weapon to attack others. On the other hand, it allows people to stay connected. States must figure out how to cease bullying without infringing on the rights of the people.
The First Amendment is the first argument that comes to mind when one considers the implementation of laws and policies in relation to the policing of communication with others.
The First Amendment states:
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. U.S. Const. amend. I
Based on the portion that says “or abridging the freedom of speech”, people usually assume that all speech verbal or nonverbal is protected. However it has been ruled by some lower courts that the First Amendment doesn’t protect all speech, such harassing, threatening, or obscene language. Brian S. Brazeau, The Transformation of Indirect Harassment in the 21ástã Century: Harassment Telephone Laws, Cyberbullying, and New Ways of Analyzing First Amendment Rights, 22 Suffolk J. Trial & App. Advoc. 292, (2017). For this reason the development of a North Carolina cyberbullying statute in State v. Bishop was held to be valid on the grounds that “the statute’s main purpose is to prohibit the communication of information pertaining to a minor with the intent to intimidate or torment”. Id. at 314. Similarly, a Nevada cyberbullying policy was upheld when a student posted vulgar tweets directed at the school, despite the argument that it violated his First Amendment rights. Id. at 315. The distinction between his other tweets, which were protected by the First Amendment and the obscene tweet was the language used and the harm it could cause the intended victim. Later, State v. Bishop was overturned under the analysis used for strict scrutiny. Under strict scrutiny, the government must have a compelling interest and the means of achieving that interest must be narrowly tailored. The court states that the statute didn’t contain sufficient definitions and didn’t require the victim to show an injury related to the conduct. Id. at 317. This set the tone for future statutes, implying that in order for it to be viewed as constitutional under the strict scrutiny test, it must: serve a compelling government interest, the law must be narrowly tailored to yield the interest. Id.
It is usually particularly difficult for schools and work places to discipline behavior that took place off their premises and outside of the business or school hours. They can be perceived as over stepping their boundaries, exceeding their authority, and violating their free speech right. One case paved the way for the schools to attack the issue of free speech. That case was Tinker v. Des Moines Independent which set the standard for schools, stating that the school actions of suspending the students for refusing to remove an armband was unconstitutional and a violation of their First Amendment right. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). In the Court’s criticism of the school, they set a standard that schools may prohibit or limit speech that may be a substantial disruption or interference of school activities. Id.
State Laws and School Policies
Anti-bullying laws vary from state to state, which may include harassment, intimidation, or stalking. These state laws that are inclusive of the types of acts carried out on electronic devices can be prosecuted under such laws for instances of cyberbullying. Most states have anti-bullying laws and laws to cover cyberbullying, but not all states have policies on bullying. Two out of three of the states that will be compared are in the top ten worst states for cyberbullying. California and New York ranked six and seven out of the states; the research looked at the percentage of hostile comments per state, the percentage of people who have claimed online harassment, and the state anti-cyberbullying laws. This rating is concerning, knowing that cyberbullying laws and policies are being implemented across the nation.
California ruled on its first cyberbullying case in 2009, United States v. Drew. United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009). The case is about a mother, Drew, who made a fake profile on a social media website, MySpace, and pretended to be a 16-year-old boy under the fake name of “Josh Evans”. Id. The parent befriended a 13-yr-old girl name Megan Meier with the intention of tricking her into communicating with the fake profile. Id. The mother even recruited others to assist in her trickery. Id. Although they lived in Missouri, the case was tried in Los Angeles, California on the ground that MySpace is based in Los Angeles. Id. Charges were brought against the mother under the federal Computer Fraud and Abuse Act.
Drew was charged with one count of conspiracy in violation of 18 U.S.C. § 371 and three counts of violating a felony portion of the CFAA, i.e., 18 U.S.C. §§ 1030(a)(2)(C) and 1030(c)(2)(B)(ii), which prohibit accessing a computer without authorization or in excess of authorization and obtaining information from a protected computer where the conduct involves an interstate or foreign communication and the offense is committed in furtherance of a crime or tortious act.
Id. at 452.
Drew was upset over the fighting between her daughter and Meier. She used the fake profile to gain her trust, start a relationship with Meier, dated for weeks online, then abruptly end the relationship and began to bully Meier. They message Meier stating “The world would be a better place without you” before Meier killed herself. The fake account was then deleted after Drew heard about the suicide. Id. at 452.
The court held that there was no violation of the statute because the plain language of the statute failed to give adequate notice to citizens of what constitutes illegal conduct.
In D.C. v. R.R., a 15-year-old received harassing comments on a website, include threats of bodily harm. The teen filed suite and the decision was held in the plaintiff’s favor. The defendants filed a motion to strike under the strategic lawsuit against public participation, SLAPP. D.C. v. R.R., 182 Cal. App. 4th 1190, 1199 (2010), as modified (Apr. 8, 2010).
The motion was denied because the defendants could not establish that the messages sent to the other student were protected speech and the comments were not made in connection with a public issue. Id. at 1199. The defendants held out that the harassing statements were a joke. Id.
Federal courts were divided on the standard to apply to free speech, whether it should be objective or subjective. Id. at 1213. The subjective standard is appropriate for actual intent. Id. It was argued that the statement may be protected under the First Amendment if found to be symbolic or expressive and actual speech. Id. at 1210. Threats were not protected, as it does not protect a “true threat.” Id.
In J.S. v. Blue Mountain School District, the parents appealed a verdict in favor of the school district that brought suit for J.S. conduct on the internet outside of school hours. J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011). The parents appealed claiming violation of free speech rights among other claims. Id. The student created an internet profile using the principal’s photo and proceeded to post statements with profanity and defamatory statements about the principal. Id. The court held a ruling in favor of J.S.:
1 school district reasonably could not have forecasted substantial disruption of, or material interference with, school when eighth grade student created profile;
2 school district could not punish student for use of profane language outside the school, during non-school hours;
3 student's lewd, vulgar, and offensive speech that had been made off-campus had not been turned into on-campus speech when another student brought printed copy of that speech to school at express request of school principal
The more well-known of the cyberbullying cases is United States v. Elonis and Elonis v. United States. United States v. Elonis, 730 F.3d 321 (3d Cir. 2013), rev'd and remanded, 135 S. Ct. 2001 (2015); Elonis v. United States, 135 S. Ct. 2001 (2015); United States v. Elonis, 841 F.3d 589 (3d Cir. 2016), cert. denied, 138 S. Ct. 67 (2017). Elonis made threatening statements toward his spouse over Facebook as they were going through a divorce. Id. He made several threatening post that were also defamatory. Id. He was later arrested and charged with transmitting in interstate commerce communications containing a threat to injure the person of another in violation of 18 U.S.C. § 875(c). United States v. Elonis, 730 F.3d 321, 326 (3d Cir. 2013), rev'd and remanded, 135 S. Ct. 2001 (2015). Statute 875 for interstate communications is as follows:
(a) Whoever transmits in interstate or foreign commerce any communication containing any demand or request for a ransom or reward for the release of any kidnapped person, shall be fined under this title or imprisoned not more than twenty years, or both.
(b) Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than twenty years, or both.
(c) Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.
(d) Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both. 18 U.S.C.A. § 875 (West).
Elonis stated that he did not intend for his posts to be threatening. But his motion to dismiss his indictment on that basis was denied. The court found that it was enough for him to communicate and make the threat. They did not take his intent into account. That ruling was later reversed based on the jury instructions. United States v. Elonis, 730 F.3d 321, 326 (3d Cir. 2013), rev'd and remanded, 135 S. Ct. 2001 (2015).
On appeal, the court used the subjective test, where they analyzed Elonis intent when making the Facebook post. Elonis v. United States, 135 S. Ct. 2001 (2015). The court did not address a First Amendment issue, as it was decided on criminal law remanding to the lower court for analysis of the Elonis intention to make a threat or his knowledge that it could be viewed as threatening. Id. The court also analyzed Elonis’s threats toward his coworkers. The court held that Elonis was aware of the fears he created and continued to make additional post. United States v. Elonis, 841 F.3d 589 (3d Cir. 2016), cert. denied, 138 S. Ct. 67 (2017). The court also found that the wife’s restraining order was sufficient to prove an established fear. Id. The defendant continued to make harassing post and acknowledged the restraining order. Id. Elonis continue to post threatening message toward not only his wife and coworkers, but also toward the police, elementary school, and Federal Bureau of Investigations. Id.
We believe Section 875(c) contains both a subjective and objective component, and the Government must satisfy both in order to convict a defendant under the statute. The Supreme Court focused on the subjective component. It held that to satisfy the subjective component of Section 875(c), the Government must demonstrate beyond a reasonable doubt that the defendant transmitted a communication for the purpose of issuing a threat or with knowledge that the communication would be viewed as a threat.
United States v. Elonis, 841 F.3d 589, 596 (3d Cir. 2016), cert. denied, 138 S. Ct. 67 (2017).
Under the statute, Elonis was convicted for communicating a threat to injure someone. Id. Elonis was found to be objectively threatening because he had knowledge, beyond a reasonable doubt, that the post would be viewed as threatening. Therefore, the jury error referenced in the case would not have changed due to the unreasonable doubt. Id. Elonis violated the statute in relation to the posting referencing his wife: “In October 2010, just five months after Elonis's wife left him, Elonis posted three messages to Facebook that referenced, among other things, his desire to rape her, kill her, put her head on a stick, and “bust this nut all over [her] corpse” . . . The evidence overwhelmingly shows that Elonis posted those two messages with either the purpose of threatening his ex-wife, or with knowledge that she would interpret the posts as threats. No rational juror could conclude otherwise.
When it came to the violation related to the police, the FBI, and the school, it was found that he had knowledge that the post were threatening. Id.
The case People v Marquan was a case in which a criminalized cyberbullying law was struck down. People v. Marquan M., 24 N.Y.3d 1 (2014). The court viewed the law as overbroad when a 16-year-old high school student posted another student’s sexual information on a public website. Id. at 3. The student was criminally charged with cyberbullying under local law. Id.
In 2010, the Albany County Legislature adopted a new crime—the offense of cyberbullying—which was defined as
“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” (id. § 2).
The provision outlawed cyberbullying against “any minor or person” situated in the county (id. § 3).2 Knowingly engaging in this activity was deemed to be a misdemeanor offense punishable by up to one year in jail and a $1,000 fine (see id. § 4). The statute, which included a severability clause (see id. § 7), became effective in November 2010.
Id. at 6.
After this went into effect, the defendant created a profile on Facebook that allowed him to anonymously post pictures of classmates and other children. Id. Under the pictures were statements that detailed sexual and personal information about the child, the language was vulgar and offensive. Id. The police charged the defendant with cyberbullying under the law; Marquan argued that the statute violated his First Amendment right to free speech. But his motion was denied. However, he was not convicted because the statute was seen as overbroad and invalid under the First Amendment. Although the First Amendment does not protect speech related to cyberbullying, the law used included a broad scope of communication that went bullying. Id. the specific wording of the court was as follows: “Although the First Amendment may not give defendant the right to engage in these activities, the text . . . more than acts of cyberbullying against children by criminalizing a variety of constitutionally-protected modes of expression. We therefore hold that Albany County's Local Law No. 11 of 2010—as drafted—is overbroad and facially invalid under the Free Speech Clause of the First Amendment.” People v. Marquan M., 24 N.Y.3d 1, 12 (2014).
Difficulty in Implementation
It appeared as though the schools struggled to develop policies and laws that properly worked with the First Amendment without violating one’s rights. Courts recognized the difference between protected speech under the First Amendment and speech that was a form of bullying and therefore not protected. It also took it further to allow schools to regulate behavior outside of school, if they could prove that it would disrupt the environment. Any wrong wording could lead to a broad view, violation of rights, or a restriction on their scope of authority. With the advancement of technology and such easy access, it makes it difficult to implement some of the policies and statutes. Children have access to various mobile devices and computers. Anyone with a library card can access a computer with internet. This increased access, gives bullies the capability to go undetected if they have anonymous accounts or do not use the same device consistently. States also have difficulty combatting the issue because only about half of the people that are bullied report the bullying. With ninety-two percent of teenagers online daily, cyberbullying has become a daily occurrence. The Supreme Court of the United States has not ruled on this issue yet, but the lower courts are consistently setting precedence on this issue.