The New York Times has begun a new series on online bullying. The first article is titled Online bullies pull schools into the fray. It raises a number of interesting questions about the role of the schools in addressing online bullying, especially when much of the bullying happens off school grounds.
In May, Governor Deval Patrick signed Massachusetts’ first anti-bullying statute into law. Among other things, the law provides that school staff report all incidents of bullying, that anti-bullying intervention programs be established, and that students participate in anti-bullying curriculum.
One of the main criticisms of this law and other attempts to address bullying? That they are an assault on free speech. Regular readers may recall that I often think “free speech rights” are raised for the wrong reasons:
The majority of the time when you hear Free speech! First Amendment rights! being claimed, it isn’t in response to criticism of the government or calls for social change or radical expressions of thought. Nope, it’s about the freedom to be a racist jerk or an idiot or both.
The New York Times article provides a choice example:
After school one day in May 2008, Mr. Cohen’s daughter, known in court papers as J. C., videotaped friends at a cafe, egging them on as they laughed and made mean-spirited, sexual comments about another eighth-grade girl, C. C., calling her “ugly,” “spoiled,” a “brat” and a “slut.”
J. C. posted the video on YouTube. The next day, the school suspended her for two days.
“What incensed me,” said Mr. Cohen, a music industry lawyer in Los Angeles, “was that these people were going to suspend my daughter for something that happened outside of school.” On behalf of his daughter, he sued.
Cohen won the lawsuit, which argued his daughter’s First Amendment and due process rights were trampled.
The lesson Mr. Cohen hopes his daughter learns from the case is about the limits on governmental intrusion. “A girl came to school who was upset by something she saw on the Internet,” Mr. Cohen said in a telephone interview, “and these people had in their mind that they were going to do something about it. The school doesn’t have that kind of power. It’s up to the parents to discipline their child.”
He did chastise his daughter, saying, “That wasn’t a nice thing to do.”
He describes her video as “relentlessly juvenile,” but not an example of cyberbullying, which he said he did not condone. His daughter offered to remove it from YouTube. But Mr. Cohen keeps it posted, he said, “as a public service” so viewers can see “what kids get suspended for in Beverly Hills.”
So he told his daughter that what she did was not nice. But when she said she’d take it down, he wanted it to remain. Because allowing a disparaging video about another kid to be broadcast on the internet will teach everybody that you shouldn’t mess with free speech. And because he wants his daughter to learn that free speech is more important than doing the right thing.
The court relied heavily on the Tinker case, which involved students who wore black armbands in protest of the Vietnam War. (Oh, if only we might see more of these types of cases and less of the cases in which free speech defends stupidity or cruelty or both.) Tinker defined the issue as whether the speech in question was disruptive or impinged on the rights of others.
Personally, I think the judge’s opinion in the recent case is flawed. If you’re going to talk about “foreseeable risk of future disruption” (“disruption” being one required aspect in the Tinker case) I’d include the fact that this case undoubtedly emboldens other kids to do similar unkind acts.
The justice in Tinker noted as follows:
The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.
I think part of the difficulty is in defining “disruption.” Note that one of the dissenting justices in Tinker thought the armbands were sufficiently disruptive. But in the recent case, how do we define “the rights of other students to be secure and to be let alone”?
Often we define these “rights” as existing only when they do not interfere with the “right” of free speech.