Evidently, the waters of cyberbullying case law are still murky. Due to variability in opinions and perspectives across jurisdictions and adjudicators, clear precedent is still sometimes elusive. Consider the following case from late 2009 from a California District Court (08-cv-03824, J.C. v. Beverly Hills Unified School District), in which an eighth-grader was cyberbullied through the posting of a YouTube video created by peers denigrating her as “spoiled,” “a brat,” and a “slut.” The target tearfully reported this to her counselor, and indicated strongly that she was upset, humiliated, and did not feel able to go to class and focus on school. The counselor discussed the matter with administration as well as with school district attorneys, classified the behavior as “cyberbullying,” and the offending girl who posted the video online was suspended for two days. Her family decided to sue, and took the case to federal court on the grounds that her First Amendment right to free speech had been violated.
Even though extant case law seems to support corrective action if a target is unable to feel safe and supported to learn without distractions of harassment within a school environment, the federal judge in this case ruled that school authorities overstepped their bounds. This decision was based on the fact that the school could not prove that the offending speech and actions caused a “substantial disruption” of school activities or goals. Moreover, the ruling judge stated that “the court cannot uphold school discipline of student speech simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments.”
This is particularly disconcerting to me. The judge completely disregarded the emotional and psychological well-being of the target in this case, even though any adult who serves youth or works for the best interests of youth is taught that they must not view the internalization of harm in a critical manner, but must empathize with it. That is, adults must not discount the reality of pain experienced by adolescents through their experiences with bullying or cyberbullying, because this casts blame on the victims themselves. This small-minded mentality is, in part, why we have teenagers who kill themselves – because they feel that their viewpoint is not appreciated but rather trivialized and discarded.
Demonstration of “substantial [schoolwide] disruption” is a sufficient clause to uphold school discipline of cyberbullying behaviors that are initiated off campus. However, it is not a necessary clause because there are other aggravating factors that impel student disciplinary sanction by schools. One primary factor is the harm personally and subjectively experienced by victimized youth. Without question, the ability of the victim in this case to learn in a safe and secure environment at school was substantially disrupted. But apparently that wasn’t enough.
In essence, the judge asserts that the adolescent victim in this case – and others like her – should have tougher skin, and should not allow hurtful comments to bother her so much. He summarily dismisses the gravity of her pain in one fell swoop, and bases his decision on an impersonal aspect of the case, rather than the very real, very visceral effect that cyberbullying had on a young girl.
Finally, the victim in this case is being denied the benefits of, and is subjected to discrimination under, a federally-funded educational program (the public school), which undermines her civil rights. As such, I would not at all be surprised if this case goes to the appellate level and is overturned. In fact, I am hopeful that it will be.
The victim can always try to win a judgement in civil court for defamation and libel. The evidence presented in criminal court may be all the proof she needs in civil court. The burden of proof is much lower for civil court. Historically, the civil courts have provided compensation when the criminal courts have not prosecuted the offender. It is one more option in an effort to give the offender some punishment for their actions when the criminal justice system fails to punish or provide restitution.
My daughter is facing a Felony (assault with a Deadly Weapon, which is her 'shoe') for sticking up for herself to several cyber-bullies. She was bullied on My-Space, had several bulletins posted by the cyberbullies which damaged her character, and eventually a verbal altercation turned into a fight, and because my daughter (who was the victim up until the fight), kicked the cyberbully during the fight, my daughter was arrested and has been charged with a felony! My daughter is also being recomended for Expulsion from the High School due to the fight. As a parent, I contacted law enforcement and the High School prior to the altercation, providing them with all of the My-Space print outs showing my daughter was a victim… however they ignored my plea for help, and now here we are….
This is crazy! How is it possible for these School Administrators to sleep at night? Does my daughter deserve a felony and expulsion because she defended herself?
Nothing will ever change. NICE GUYS FINISH LAST… this is another example.
It’s a big thing to try and protect someone, but do you want to be the next victim or even become considered the snitch? This is what some youth fear as a total nightmare and would never want to be categorized as. Even if someone life is on the hand, no one wants to step up and be the hero. Youth are usually and sometimes always afraid of what the next person might think. But that is how people are in the world today. No one ever steps out of the crowd to be the bravest and bigger person. I feel they are afraid to shine due to the people they may hang around or reactions sought. Kids feel if they don’t agree with the bullying, that they have to play along to avoid being bullied themselves. I would stick up for whom I feel need it, because it’s not fair to them. Everyone has feelings, even the big bad bully. A rule I follow to this day is the golden rule “Do On To Others the Way You Would Want Them to Do On To You”. I learned the golden rule at my elementary and never forgot it. Maybe all kids should learn this rule like I did, because at an early age it had a big affect on me.
What youth should do?
• Document what they see and when
• Don’t encourage the behavior
• Don’t forward hurtful messages
• Don’t laugh at inappropriate jokes
• Don’t condone the act just to fit in
• Don’t silently allow it to continue
• Stand up for the victim
• Tell an adult they trust