The Bully on the Virtual Playground

As seen in the January issue of Louisville Bar Briefs.

With thousands of kids spending countless hours texting on their phones and frolicking on the virtual playground created by Facebook and other social media sites, it was inevitable that the same bad behaviors affecting the real world would carry over into cyberspace. The press has labeled the use of electronic media to criticize, threaten, embarrass or intimidate as "cyberbullying," and recent incidents of "cyberbullying" by teens, in some cases leading to the suicide of the victim, have received a significant amount of attention. As society tends to do with an array of social ills affecting our youth, we have looked to the public school system to address the issue. Although efforts by school officials and politicians to curb harmful behavior are laudable, because cyberbullying involves the use of words and expression, efforts by state and federal legislatures, city councils and schools to limit such behavior necessarily bring into question constitutionally protected free speech rights. Before we even reach the constitutional issues, however, we should first consider whether the schools have the same authority to patrol the ethereal cyber playground comprised of bits and bytes as they do to oversee the physical playground comprised of swings and jungle gyms.

"Cyber Bullying" Defined

The National Crime Prevention Council defines cyberbullying as the use of "the Internet, cell phones or other devices to send or post text or images intended to hurt or embarrass another person."1 Wired Kids, Inc. an organization dedicated to Internet safety, security and privacy, defines cyberbullying as: "a situation when a child, tween or teen is repeatedly 'tormented, threatened, harassed, humiliated, embarrassed or otherwise targeted' by another child or teenager using text messaging, email, instant messaging or any other type of digital technology."2

Is This Really an Issue for the Schools?

With recent incidents of cyberbullying leading to tragic results for teen victims, looking to the schools to address the behavior at least arguably makes some logical sense. When the bullying behavior involves actions by students outside the school, using their own computers, however, two distinct legal issues necessarily arise. First, does the school even have authority to address the situation? And second, does the action by the school constitute an impermissible restraint on free speech?

In Kentucky the state...