Kowalski v. Berkeley County School, Cyberbullying and Hate Speech Legislation

Due in part to the proliferation of digital communication over the years, there has been growing concern over free speech and free expression in relations to First Amendment rights and cyberbullying. “Cyberbullying” can be defined as communication conduct employing technology devices used to cause emotional stress and fear[1] in a way that is “[meant] to intentionally harm [or embarrass] others”. Cyberbullying is acted out using “hostile behavior such as sending [disparaging] text messages and posting ugly comments on the internet.”[2] Cyberbullying also includes a range of online conducts, including any communication that is meant to instill hatred in the hearts and minds of others, or humiliate or damage a victim’s reputation. Despite the damaging nature of cyberbullying, it has yet to be labeled hate speech in the United States, which in most cases is protected under the First Amendment[3]. However, in over a hundred and seventy five countries, many of them democratic, hate speech is a crime and punishable by law.[4]

The First Amendment states, “Congress shall make no law […] prohibiting the free exercise thereof; or abridging the freedom of speech”. However, there are caveats to this, such as incidents relating to clear and present danger, obscenity, incitement of violence, libel/defamation, and fighting words[5]. Additionally, free speech is subject to restrictions dictated by time, place, and manner. A new frontier of litigation based on inalienable rights has begun to spawn thanks to the internet, where the protections of the First Amendment are being applied to the World Wide Web.

In recent years, the instances of cases in the United States involving internet harassment, cyberbullying and hate speech have increased. Until recently,[6] appeals have been unsuccessful in reaching the Supreme Court, most cases ending at appeals in the lower courts of law.

One of the latest civil case that was unsuccessful in gaining an appeal through the Supreme Court was Kowalski v. Berkeley County Schools 652 F.3d 565 (2012). Kowalski v. Berkeley made it to the United States Court of Appeals of the Fourth Circuit in the North District of West Virginia, but was not granted petition for writ of certiorari when she tried to appeal her case to Supreme Court.

Kowalski took legal action against the school district through the District Court, citing the First and Fourteenth Amendment, for disciplinary measures related to the creation of a 2007 group webpage created on the online social networking site MySpace. The MySpace group page was generated as a platform to encourage other students, along with Kowalski, to embarrass and/or defame a fellow classmate. The short-lived online group was called S.A.S.H. – an alleged acronym for “Students Against Shay's Herpes”. After school authorities were alerted to the nature and scope of the webpage, the Musselman High School senior was suspended from school for ten days and from all school activities for ninety days, in which she was not a principle participant.

The Plaintiff, Kara Kowalski, filed suit under civil rights law 42 U.S.C. § 1983 – a civil action for deprivation of [Constitutional] rights. In her petition, Kowalski asserted “that the School District [Defendant] was not justified in regulating her speech because it did not occur during a ‘school related activity,’ but rather was ‘private out-of-school speech’”[7]. Second to the infringement on free expression, Kowalski sought redress due to infliction of “emotional distress” due to “social isolation”, which allegedly resulted in depression and a subsequent need for medication. The Defendants responded by filing for a dismissal and summary judgment. In turn, the court granted summary judgment on the free speech matter.

During the proceedings, the District Court established that Kowalski was fully aware of Berkeley County School’s statute related to bullying, which was outlined in the School Code of Conduct, and therefore upheld the disciplinary action by the school. The District Court contended that the speech disrupted the environment of the school, negatively impacting the learning environment. Finding no breech of First Amendment rights and no grounds for “emotional distress”, the summary judgment by the District Court held in favor of the Defendant.

Kowalski then moved to appeal the decision of the U.S. Fourth Circuit Appellate Court. She petitioned on the same grounds that the speech in question took place “out-of-school”, and therefore the resulting discipline was unwarranted and caused undue emotional harm.

The Fourth Circuit reviewed the case and upheld the summary judgment of the district court under case law established by applying Tinker et al v. Des Moines Independent Community School District et al 393 U.S. 503, 506 (1969). In the earlier case it was established that free speech in school was only protected as far as it was not disruptive, and that “school administrators have some latitude in regulating student speech to further educational objectives”. Further, in the published verdict it was established that “a court could determine that speech originating outside of the schoolhouse gate, but directed at persons in school and received by and acted on by them, was in fact in-school speech.”[8] The Fourth Circuit also applied the Sixth District judgment from Lowery v. Euverard, which established the duty of school administrations to foster “safe school environment[s] conducive to learning”. [9]

Based on this, the School District was within its legal right to discipline Kowalski for the aggressive online behavior. The Fourth Circuit Court of Appeals agreed with the judgment of the District Court that Kowalski had sufficiently disrupted the learning environment, which negated her First Amendment rights. Therefore, the Fourth Circuit stood by all rulings made by the lower court. Following the judgment by the Fourth Circuit, Kowalski petitioned the Supreme Court for an appeal. However, the court denied her petition for certiorari, therefore all judgments established by the District Court and the Fourth Circuit Court stand.

Precedent for future lawsuits related to cyberbullying will likely be established by the judgment made in Kowalski v. Berkeley County Schools. Most cases involving adolescents and school discipline related to free speech issues have been known to summon Tinker to determine the level of First Amendment protection.[10] In regards to free speech rights among adolescents, now both in and outside of school, disruption or interference takes primacy over the protection granted to what can be termed by some as “offensive speech”. This is largely in part due to proliferation of social media and the broad community reach aided by the internet. Other cases regarding free expression and students have also generally applied standards set forth by cases such as Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986), in which a student used “obscene” language and “graphic sexual metaphor” during a school assembly[11].

There is a growing amount of litigation related to electronic communication and cyberbullying in the United States. This can be attributed to the prevalence of ownership of electronic devices such as smartphones and tablets among adolescence[12].

Historically, there has been numerous court cases related to the First Amendment, however, litigation due to cyberbullying is relatively new compared to traditional bullying; until recently there have been very few legal cases related to this problem. In most, if not all cases, First Amendment rights were invoked as a defense by the perpetrator. The matter of cyberbullying is not a behavior limited to the youth, but increasingly by adults. The new era of technology takes workplace bullying and relationship issues, where there is often threats and perceived intent to harm, into cyberspace. According to the Workplace Bullying Institute, thirty-five percent of adults report being bullied at work[13]. A study by Pew Internet Research found that forty percent of adults have experienced harassment online indicative of cyberbullying, varying from name calling, to purposeful intention to embarrass, to physical threats, sexual harassment and stalking[14]. While the cases of adult cyberbullying are more rare than those involving adolescent, an upcoming Supreme Court Case Elonis v. United States[15] will consider the case in relation to the First Amendment. Using the judgment of Virginia v. Black[16], Elonis v. United States is set to establish increase legislative guidance regarding adults and harassment or bullying online. Among other things, the Elonis case involves the legal precedent of perceived online threats as protected free expression. According to Adam Liptak of The New York Times, the ruling of the Supreme Court could have a significant impact on future prosecutions related to electronic communication.[17]

Cyberbullying laws have been in existence for less than ten years. The first state cyberbullying statute came out of Missouri in response to the famous case of Megan Meier, a girl who committed suicide after being bullied online by a classmate’s mother. The resulting lawsuit, United States v. Drew[18], set an example for future state laws. As of September 2014, forty-nine states* and the District of Columbia have bullying laws in place. Of those states, forty-eight include “electronic harassment” and twenty of them include “cyberbullying” with three additional states currently proposing laws. Several instances of cyberbullying that resulted in the suicide of the victims also inspired bills such as “The Megan Meier Cyberbullying Prevention Act” (Missouri); “Pheobe’s Law” (Massachusetts); and “Act Toward Bullying Prevention” (Vermont)[19].

On the Federal level, there exists no exact bullying laws; however, there has been a proposed Federal law regarding “cyberbullying” since 2009. Additionally, “internet harassment” law, which includes sanctions related to bullying under Section 875 of the U.S. Code, stipulates that threats of harm communicated directly by any means is a criminal act[20]. These laws illustrate a clear trend toward curtailing the scope of the First Amendment, both online and off-line.

Cyberbullying is hateful by nature and is not just about the insecurities of the bully, or any of the many reasons people are purported to bully, nor is it purely about power and intimidation over peer-groups. Sometimes bullying is often directed towards those perceived as “different” from others, such as is related to race/ethnicity, gender, religious affiliation, and sexual preference[21]. Cyberbullying and hate speech are synonymous topics in academic writing, and are often combined under similar legislation in other countries. While hate speech is harder to define than cyberbullying, it can be established through definition alone that cyberbullying and hate speech are of similar ilk, and they can be used interchangeably in reference to regulations and law in the United States and around the world. Trends around the world have been towards eradicating, or in the very least discouraging, all manner of hate speech and (cyber)bullying.

In the realm of jurisprudence, cyberbullying becomes a matter of ethics[22] versus law, as cyberbullying blurs the line between hate speech and free expression, that of human rights versus civil rights. Regulating hate speech has become commonplace among developed countries under human rights authority.[23] As Webb states in Verbal Poison-Criminalizing Hate Speech, Canada may have what appears the most balanced position related to human rights and democratic rights of free speech. Canada’s criminal code states that “identifiable groups [are] protected [including] those based on race, national or ethnic origin, color, religion, age, sex, sexual orientation, marital status, family status, disability, and conviction for which a pardon has been granted”[24]. This criminal code also allows for providing provisions for things such as truth, public benefit, or interest, and good faith based on religious grounds; as with in the United States, Canada’s Supreme Court considers the cases. In terms of cyberbullying, as with bullying, activities such as criminal harassment, uttering threats, and intimidation are classified as Criminal Code offenses[25]. Like with state legislation, provincial statues are more prevalent in relation to their federal/governmental law.

Germany’s hate law protects against libelous, disparaging, and otherwise defamatory or damaging speech, including that related to the deceased, with provisions against malicious speech inciting animosity based of nationality, race, religion, or ethnicity.[26] Australia, United Kingdom, South Africa, France and the Scandinavia countries have anti-hate speech legislation, some as far back as the late 1800’s, like Singapore, each with levels of regulation, but regulation nonetheless. According to Felman, in Hate Speech and Democracy, this makes the United States “an outlier among advanced democracies”, where “dignity describes an individual's assurance that he or she fully belongs to the society and will be treated respectfully, as a political and legal equal” – this brings to mind tenants of Democracy. Other countries follow suit with similar statutes as Canada loosely related to cyberbullying but “do not have stand-alone offences”[27] like many states in the United State - rather they have laws similar to Canada, such as is the case with the United Kingdom, Australia, and New Zealand.

While there is less top-down regulation, the growing number of school districts, cities, and states/provinces, indicates a bottom-up attempt to address cyberbullying. Some schools have even created online awareness campaigns and courses like “Understanding and Addressing Bullying”, such is the case with one school in California[28]. Moreover, these actions illustrate a clear worldwide acknowledgment of the growing issue of cyberbullying and hateful speech.

Among the concerns in public debate, outside of the First Amendment implications on free expression, are the ethical, social and emotional consequences[29] related to cyberbullying and hate speech abound, due to the innate aggressive nature of bullying. According to some studies, there is a clear distinction between offline and online bullying, and therefore this warrants not only further research but also special consideration in prevention of such behavior.[30]

With any perceived impediment on Constitutional rights, there is a vast range of public and legal arguments. The primary argument of the opponents of anti-bullying legislation is that anti-bullying or anti-cyberbullying legislation fosters the “chill effect” created by the regulations[31]. They feel that this perceived chill effect prohibits students, and adults, from feeling that they can freely express themselves and their ideas. Proponents of these legislations may argue on what can be interpreted as ethical grounds. This ethical standpoint is related to the encouragement of a healthy society in which tolerance of hatred, harassment, and bullying is damaging and one where it “manifesting bigoted views [impairing] progress towards being socially well-ordered” which Simpson attests, vis-à-vis Waldren, “is something the law can intervene in and counteract.”[32]

The main issue that evolves from the legal protection of damaging behavior under the pretense of First Amendment rights is the idea that all unpopular opinions have an underlying value to them, and are therefore worth protection. In fact, those that protect hatred of groups of people, or a single person, based on any natural quality, is not valuable to a Democratic society, as earlier illustrated by Felman, from ethical standpoints. Those who protect hate and bullying under the guise of protecting “diverse opinions” would better be suited acknowledging how it infringes of the victim’s right to dignity and “how contributes to (identity-based) [damaging] social hierarchies”[33]. Reflecting on the work of Heyman, Simpson contends that hate speech and cyberbullying are a violation, and such behavior diminishes social standing and inflicts harm on the target. As Webb asserts, “hate speech regulation [and thereby bullying regulation] is consistent with the democratic principles of maintaining order, promoting equality, and protecting minority groups. Permitting hate speech […] actually works to counter these principles.”[34] To further contextualize the point, the “right to freedom of speech [carries] with it a responsibility not to jeopardise [sic] or undermine, in one’s speech, the civic bonds that hold society together.”[35]

When applied to the cyberworld, what holds true in the “real world” so shall it be online. The World Wide Web, long been touted as a new frontier to Democracy, is not exempt from the tenants put in place by regional, national and global laws, or agreed upon rules of ethics and morals. In the real world, unethical behavior (generally) has consequences – both legal and non-legal. First Amendment rights have never been absolute; such is the case with caveats relating to ‘clear and present danger’, and ‘fighting words’. Additionally, ‘libel’ is not a protected form of speech. Libel can be seem as closely aligned with acts of bullying and hate speech, as libel is also damaging and degrades the “widely-shared understanding and acceptance among the populace of the status-respect that we all owe, and are owed, as fellow members of society”.[36]

Alas, as Slagle[37] contends, what is left is the question of who gets to decide. By ethical standards, the principles of utilitarianism can be applied. What is a benefit to the most people? Based on democratic principles, less bullying, less hatred, less aggressive discourse is more beneficial to society as a whole than not, by the sheer lack of value in cyberbullying. The answer then is in the ethics and morals, as many other countries have contented by enacting laws to prevent behavior that is damaging to their societies. As far as the future of cyberbullying legislation in the United States, we have but to wait and see. What will emerge will be up to the Court’s interpretation based on longstanding First Amendment rhetoric and previous court judgments. It may not reflect the benefits of society and Democracy, but rather the longstanding tradition of primacy towards “protected” rights of the individual. Nor is it likely that the ethical implications of the matter will be in built into the framework. What can be said is that judgments on cases such as Kowalski v. Berkeley County Schools will be key in raising the bar.

Footnotes:

[1] National White Collar Crime Center. Cyber-Bullying The Legislative Response. National White Collar Crime Center.

[2] "Cyber Bullying Law & Legal Definition." Cyber Bullying Law & Legal Definition.

[3] Packard, Ashley. "Sex and Violence." Digital Media Law. 2nd ed. N.p.: Wiley-Blackwell, 2013. 330. Print. Packard’s definition of hate speech is “communication that disparages individuals or groups on the basis of characteristics such as ethnicity, race, religion or sexual orientation”.

[4] See 3

[5] Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) “offensive, derisive or annoying word[s] to any other person who is lawfull in any street or public place. . . with intent to deride, offend or annoy him.” via Webb, Thomas J. "Verbal Poison - Criminalizing Hate Speech: A Comparative Analysis and a Proposal for the American System.

[6] Elonis v. U.S. is set to go before the Supreme Court in 2015

[7] Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011)

[8] Tinker v. des Moines Indep. Community Sch. Dist. 393 US 503 (1969)

[9] Lowery v. Euverard 497 F.3d 584 (6th Cir. 2007)

[10] J.S. v. Blue Mountain School District (2011 & 2012), Doninger v. Niehoff (2011), People v Marquan M. (2014)

[11] "BETHEL SCHOOL DISTRICT NO. 403 v. FRASER." Bethel School District No. 403 v. Fraser. Chicago-Kent College of Law

[12] National White Collar Crime Center. Cyber-Bullying The Legislative Response. National White Collar Crime Center.

[13] Namie, Gary. "2010 & 2007 U.S. Workplace Bullying Surveys WBI-Zogby."Workplace Bullying Institute (n.d.): n. pag. Workplace Bullying Institute.

[14] Duggan, Maeve. Pew Research Centers Internet American Life Project.

[15] "Elonis v. United States." SCOTUSblog. Supreme Court of the United States

[16] Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003)

[17] Liptak, Adam. "Supreme Court's Robust New Session Could Define Legacy of Chief Justice." The New York Times.

[18] 259 F.R.D. 449 (C.D. Cal. 2009)

* Montana is the exception

[19] See 12

[20] See 12

[21] "Why Do People Bully?" Bullying Statistics. N.p., n.d. Web. 26 Oct. 2014.

[22] Slagle, Mark. "An Ethical Exploration of Free Expression and the Problem of Hate Speech."

[23] Webb, Thomas J. "Verbal Poison - Criminalizing Hate Speech: A Comparative Analysis and a Proposal for the American System

[24] See 22/Canadian Criminal Code § 319

[25] Report to the Federal/Provincial/Territorial Ministers Responsible for Justice and Public Safety.

[26] See 12

[27] See 25

[28] Repa, Barbara Kate. "E-Cruelty: Cyberbullying in California." California Lawyer (2013): n. pag. E-Cruelty: Cyberbullying in California.

[29] Law, Danielle M., Jennifer D. Shapka, José F. Domene, and Monique H. Gagné. "Are Cyberbullies Really Bullies? An Investigation of Reactive and Proactive Online Aggression."

[30] See 29

[31] Hayward, John O. "Anti-Cyber Bullying Statutes: Threat to Student Free Speech."

[32] Simpson, Robert Mark. "Dignity, Harm and Hate Speech." Law and Philosophy

[33] See 32

[34] See 25

[35] See 32

[36] See 32

[37] See 23

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Originally posted online November 2014 http://just-call-me-frank.blogspot.com/2014/11/cyberbullying-hate-speech-and-democracy.html