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."