How Far Should the Government go to Prevent 21st Century Bullying? A Look at the Massachusetts Cyber-Bullying Bill

(Photo by: Chesi - Fotos CC)

In response to a number of high-profile cases involving intense bullying, both within Massachusetts and in other states, Governor Deval Patrick signed into law last May a bill aimed at combating bullying in public schools. Although bullying is certainly nothing new for schools and students, the law also combats a truly 21st century aspect of bullying: cyber-bullying. In doing so, the Commonwealth joins over 20 other states with laws or proposed legislation about cyber-bullying.

The Massachusetts legislation defines cyber-bullying as “bullying through the use of technology or any electronic communication” (M.G.L.A. 71 § 37O(a) (2010)). The statute prohibits cyber-bullying on school grounds or through school leased or owned electronic devices. The law also prohibits cyber-bullying which creates a hostile environment at school for the victim, infringes on the rights of the victim at school, or materially and substantially disrupts the education process. Additionally, the statute requires schools to develop a comprehensive and preventative anti-bullying plan.

Although this legislation is created with the best intentions, cyber-bullying laws could potentially infringe upon First Amendment rights of students. In order to prevent that, the Massachusetts statute includes language that limits the breadth of the law to classes of student speech. The Supreme Court has already ruled on what may be regulated by schools in terms of speech. For instance, by limiting the prohibition of cyber-bullying to that which substantially and materially disrupts the education process, Massachusetts’ legislators have attempted to follow the precedent set in the case Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which allowed schools to prohibit speech which materially and substantially disrupts learning in schools. Nonetheless, the number of courts which have applied this material and substantial test to online content has been few, and it has yet to reach the Supreme Court.

It is easier for schools to argue that traditional bullying falls within the Tinker standard; traditional bullying is likely to be confined to the school yard, where it can easily be called a distraction to the learning process. Cyber-bullying, on the other hand, happens across the Internet, where the line between school and home is blurred and allows bullies almost constant access to their victims. Depending upon how broadly or narrowly courts determine whether online content materially and substantially affects the educational process, schools could be given vast or slim power to regulate student online content.

If interpreted too broadly, students could be punished for almost anything they put on the Internet, if the content had any type of negative implications about another student. In a world where the Internet can be accessed almost instantly, from almost anywhere, it is not unfathomable that courts could hold any type of Internet content as an affect on the educational process. Courts may find the content offensive even when that content may have little to do with school. If the bill is interpreted too narrowly, First Amendments rights of students will be safe, but the provision will become ineffective for its purpose. By applying the material and substantial criteria to only the most egregious form of cyber-bullying, the most common forms of bullying will go on unpunished. Current criminal laws, such as harassment and stalking statutes will be able to cover the rest that the cyber-bullying bill does not address.

No one condones the words and actions that bullies use to inflict pain on their victims. Nonetheless, protecting one’s right to free speech, even when the message is disagreeable, is a priority in our society. For other states considering adopting legislation to combat cyber-bullying, they should avoid prohibitions which run the risk of either failing under constitutional grounds or being corroded by judicial interpretation. Instead, other states should look to where the Massachusetts bill goes right which is in the bill’s requirement on schools to take a more proactive approach to preven bullying and helping the victims. Instead of attempting to ban speech, the government should focus on discouraging bullies from developing and helping victims to overcome the harassment.