Walsdorf Law Firm

“Sticks and stones may break my bones but on-line posts may land me in prison”. 

The term social media generally refers to any social network sharing internet site. Most recognizably it includes facebook, twitter, YouTube, MySpace etc. Although innocuous and friendly uses such a, photo sharing or socializing are obvious, many users including school age children, have used social media for other less friendly uses, such as gossip, sexting, salacious photo’s posting, and/or bullying. Legislatures and schools alike are addressing these issues about how to cope, correct, and prevent negative outcomes within the legal limits of the Constitution. 

One of the negative impacts of this free flow of communication that has begun to attract national attention is the subject of on-line bullying or “Cyberbullying”. The Center for Safe and Responsible Internet Use defines “Cyberbullying” as sending or posting harmful or cruel text or images using the Internet or other digital communication devices. That is an incredibly vague and subjective definition. Thus, the struggle over clarifying and what is harmful or cruel speech versus what is actionable and non-protected speech continues to be litigated. What some organizations are advocating is actionable speech is in reality protected speech. 

For instance, writers and speakers of rude or hateful speech are not committing illegal acts. It is well within our protected First Amendment Right to be rude, harsh, or even hurt somebody’s feelings, in and out of public. This is the argument that was put forth in J.S. v. Blue Mountain School District, No. 08-4138 (3rd Cir. Jun 13, 2011). Two teenage girls, after having been disciplined for dress code violations, posted a fake MySpace account using the school principal’s school photograph. The posting was done entirely off school grounds, and off school hours, depicting some typical and not so typical school age humor making fun of the principal.   Once the principal learned of its creation, however, the girls were suspended. Is that fair or even legal? The Court eventually found that since school was not disrupted, the school had no right to discipline the girls for the off campus behavior, thus the girls Constitutional rights were violated by the school. However, in many similar circumstances around the country students are disciplined and courts are split, ruling in favor of schools imposing arbitrary disciplinary action. 

Even adults are at risk for potential prison time for on line speech, as evidenced in the Megan Meir prosecution. In that case, a 13 year old girl, Megan Meier, committed suicide after her online boyfriend rejected her. Megan began an online “relationship” with a boy named Josh. When the relationship turned sour and the boy turned on her saying things like the world would be a better place without you, Megan hanged herself. Josh was never a real boy, but a fictional name that a
 mother, Lori Drew,  of one of Megan’s estranged classmates was using to “talk” with Megan. When local state authorities could not find a law to charge anyone under, the United States Attorney Office stepped in and levied charges - one felony and three misdemeanors. In the end, Drew was acquitted of all charges, partly because she was charged with violations that did not “fit” the crime. Most critics agree the charges of conspiracy to commit a tortuous act under the Computer Fraud and Abuse Act, which was the actual charge, was a stretch at best to hold anyone accountable for this terrible tragedy. Since then, a slew of legislation has been hastily created among the States attempting to fill the void of applicable laws.  

In response to tragedies like Megan’s, today, school districts and states are moving with calculated steps to limit their financial and legal exposure and liability by crafting new policies regarding bullying in order to insulate themselves from potential litigation and protect the public.  You may recall having to review and sign agreements/pamphlets sent home with your returning school age child regarding new bullying policies. Some policies asked parents to sign and return contracts stating that they will ensure our children do not participate in, nor will parents tolerate our children acting as bullies in person or on line. Some policies spell out potential penalties for students who are found to have engaged in such acts to be disciplined. What you may or may not realize is that there may be long lasting effects of such “agreements” that may have lifelong consequences for our children, up to and including temporary or permanent suspension from school and criminal charges resulting in incarceration, arising from alleged violations of the schools bullying policies, that may have taken place out of school. Additionally, by signing and agreeing to these policies what potential exposure/penalties have parents opened themselves up to if it is found by the school districts that parents have failed to abide by the agreements? Arguably under these new agreements not only can students be held accountable and disciplined for their off campus online speech/posts but parents can face similar actions. 

Thus, the question remains how much of our Constitutional rights are we willing to give away to address the problem. Is there another means to protect all our children? Do you feel that it is fair that school officials may expel or worse press criminal charges against your child for conduct committed outside of school with intangible non face to face contact? Should your son or daughter be suspended for what they say on facebook about a principal or teacher? What due process is your child entitled to when accused of violating these new school policies? These are difficult questions to answer, but they need to be raised. 

-Kristie Walsdorf ​