Cyberbullying Law Threatens Student Speech in North Carolina

You can't say that about school officials on the Internet!

This summer, prompted by complaints from teachers, North Carolina legislators passed a law criminalizing student-on-teacher cyberbullying. The measure creates a Class 2 misdemeanor—on par with simple assault or resisting arrest and punishable by up to 60 days in jail or a $1,000 fine—for students who use computers with the “intent to intimidate or torment” school employees. 

While most states have passed anti-bully provisions in recent years, North Carolina’s is the first aimed at preventing students from bullying school employees. In an email, Mary Catherine Roper, a senior staff attorney at the American Civil Liberties Union (ACLU) in Pennsylvania, who has litigated student free speech claims, tells Reason, “The state bears a very high burden when it tries to impose criminal penalties for speech. Whatever consequences we face for speaking our minds, we do not generally have to worry about going to jail for it.”  

Prohibited online activity—provided authorities find “intent to intimidate”—includes: creating a fake profile; signing school employees up for spam mail or onto a pornographic site; publishing doctored or undoctored photos; making a "statement, whether true or false, intending to immediately provoke, and that is likely to provoke, any third party to stalk or harass a school employee"; posting private information or publishing data about a school employee.  

Free speech advocates like Sarah Preston, policy director at the ACLU of North Carolina, worry that the lack of definitions for terms like intent and torment “chill free speech." She told Reason that the language gives law enforcement too much discretion, which “invites arbitrary enforcement” and “could punish factually true statements.”

Classroom Teachers Association of North Carolina President Julie Kidd, who supported the law, told The Wall Street Journal the law is justified because teachers need "some kind of protection" from students. She described two incidents to the Journal: a high schooler falsely claiming on Facebook that an ROTC instructor groped her, and sexually explicit emails about a teacher sent by a sixth grader to other students.

School officials nationwide have not been shy about disciplining students when they make crude or juvenile comments about school employees online. However, sometimes students find themselves punished for little more than being irreverent.

Last spring in California, for instance, students were suspended for three days and were to be banned from prom and graduation ceremonies until the ACLU of Northern California and the Asian Law Caucus intervened—for criticizing a teacher who taught “Pink Floyd for 3 weeks” then gave a “final project due in 3 days” and an administrator who nagged “student govt about being on task” while lagging “on everything.”

Punishments like suspensions and revoked privileges—much less criminal charges—for online speech can be on legally shaky ground. The United States Court of Appeals for the 3rd Circuit ruled last year against two Pennsylvania schools, in separate cases, that punished students for creating fake MySpace profiles of their principals and posting lewd and immature statements on those profiles. Both students received 10-day suspensions. One was removed from class and put in an alternative program with “underachieving students.”

In 2008, however, the 2nd Circuit Court of Appeals upheld a Connecticut schools’ punishment of a student who called officials “douchebags” on her blog for cancelling—in fact, postponing—an event she had helped organize. The student was not allowed to run for class secretary. (Supreme Court Justice Sonia Sotomayor, then sitting as a judge on the 2nd Circuit, ruled with the majority in the case.)

In October 2011, the Supreme Court declined to step in and resolve the split, which revolves around whether online speech that merely generates a buzz in school—as opposed to communicating an actual threat of harm—counts as a “substantial and material disruption” of the classroom—the standard laid down in 1969's Tinker v. Des Moines, where the Court enshrined the notion that free speech does not end at the schoolhouse gate.

“School children have always criticized and made fun of their teachers and administrators, and no one thought that should be a crime until they started using the Internet to do it,” according to Mary Catherine Roper of the Pennsylvania ACLU, who worked on the 3rd Circuit cases.

So what should schools do with students who use the Internet to embarrass or offend administrators and staff?

Roper says teachers have the option of filing a defamation suit if the situation warrants it. Otherwise, criticism and pranks—even if crude and objectionable—call for a stern talking to and a meeting with parents—not criminal charges.

“Most public school students have no choice but to attend public school—unlike public employees, they do not choose whether to be under daily government control,” says Roper. “They should not have to give up their rights to get an education.”

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  • Fist of Etiquette||

    ...for students who use computers with the “intent to intimidate or torment” school employees.

    One person's torment is another person's feedback.

  • The Late P Brooks||

    Further proof, as if any were needed, that the schools are run solely for the benefit and convenience of the staff. The students are merely an unavoidable nuisance.

  • Alan||

    Well said.

    There's about two things on that list that I could consider a citable offense with a small fine (signing up someone else for spam or for a pornographic website). All the rest is either bullshit or might deserve a slap on the wrist at school. Turning normal student behavior into misdemeanors is simply ludicrous, especially considering that the students have no choice but to attend these prisons schools.

  • ant1sthenes||

    Look, students need to be prepared for a world in which criticizing the government or its employees entails punishment. These schools are doing their civic duty.

  • Alan||

    +1

    Damn it.

  • Loki||

    Classroom Teachers Association of North Carolina President Julie Kidd, who supported the law, told The Wall Street Journal the law is justified because teachers need "some kind of protection" from students.

    Shorter version: "Waaaahhh!!!! Kids are assholes!!!!! WAAAAAHHHHHH!!!!!!!"

    Of course kids are assholes. Anyone who's been around them for 5 minutes or anyone who actually remembers what junior high was like can tell you what obnoxious little dickstains they are. If you can't handle a job that requires you to interact with obnoxious little dickstains for 7 hours a day, don't become a teacher. Or just sack up and grow a pair. Problem solved.

  • ||

    legislators just don't seem to understand that the constitution applies to the internet. as i have said before, many, if not most states have cyber laws violative of the first amendment

    much of this 1st amendment erosion stems from the war on domestic violence. recall not too long ago, the renton PD debacle, where their police chief used WA state's unconstitutional cyberstalking law in order to get information on who had posted some anonymous cartoons that made fun of people in his organization

    none of this is helped either, by the infamous SCOTUS "bong hits for jesus case"

    text of unconstitutional WA cyberstalking law:


    RCW 9.61.260

    Cyberstalking.

    (1) A person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication to such other person or a third party:

    (a) Using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act;

    (b) Anonymously or repeatedly whether or not conversation occurs; or

    (c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household.

    (2) Cyberstalking is a gross misdemeanor, except as provided in subsection (3) of this section.

    (3) Cyberstalking is a class C felony if either of the following applies:

    (cont)...

  • fresno dan||

    "...publishing doctored or undoctored photos"
    Undoctored photos??? Well, I would be offended by someone publishing undoctored photos of me, as I am so Godd*amed ugly the very pixels that compose the picture would vomit in horror at protraying me, but I certainly wouldn't expect the state to do the job of my own privately contracted assasin...

  • Sarah Conner||

    I think anti-social behavior among kids these days is much worse than it used to be. It's not about being funny, in many cases their glee comes from inflicting emotional distress on the adults- and they never stop once they get that first taste of blood.

    Part of the problem is that with the internet they are free to do all sorts of things that actually can cause problems for people in real life, with no consequence to themselves. This isn't just kids either, anti-social adults abound as well.

    It sounds silly to worry about, until you are the target of this sort of thing. Then you understand... and it's not funny at all.

    Is making a law about it specifically for teachers the right thing to do? I don't think so. It sounds like something that is just going to be abused, and never actually help the people for whom it was designed.

    But isn't that the real problem in our society today- that everything people do to solve problems just ends up creating more? Maybe that's an essential aspect of a failing culture that needs an upgrade.

  • Jumbie||

    Students are not more anti-social. We just didn't have as many avenues of action back then. We had to content ourselves with egging teachers cars when they were dicks to us.

    Aslo , you're wrong to say the internet allows kids more leeway to act with 'no consequences' because as the story itself points out, kids get sanctioned for internet hijinks all the time.

  • ||

    as the story itself points out, kids get sanctioned for internet hijinks all the time.

    And, as the story points out, those sanctions have been ruled unconstitutional, which the article supports.

    I don't believe teachers should be entitled to any sort of protected class status, but I do think everyone should be free from harassment and assault online the exact same way they are in real-life. I used to think that was something libertarianism favored.

  • Alan||

    I have a friend who actually was a teacher in North Carolina, who left the job because she couldn't deal with the students who actually did do terrible things to her. But in her case, this involved actual destruction and theft of property - things that should be and are crimes - for everybody.

    Certainly the students in public schools are becoming more and more lawless, but this is a reflection of a public school system that is itself lawless. I would favor stricter enforcement of rules within schools, especially if the students were attending voluntarily - but turning normal adolescent behavior into criminal offenses is simply not the way to go. It will only introduce more young people into the prison system - just enough to teach them to be criminals without actually doing anything to stop them from making crime a career, which will ultimately cost society in both more crime and more expense in keeping these people behind bars in future.

    But criticism is not a crime. On the contrary, it is an important part of a culture of liberty.

  • FD||

    “Most public school students have __no choice but to attend public school__ unlike public employees, they do not choose whether to be under daily government control,” says Roper." [emphasis my own]

    Such laughably arresting irony, so typical of the ACLU.

  • BMFPitt||

    As I understand it, there is nothing stopping out-of-state adults from mocking these asshats. Someone start putting a list together.

  • agence de e-reputation||

    +1
    we need more anti-cyberbullying campaign

  • agence de e-reputation||

    +1
    people need more anti-cyberbullying campaign

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