The Tully Center for Free Speech

Free Speech Zone

Cyberbullying: Fighting back with the First Amendment

By Kenneth Merrill, November 17, 2011

On September 26th the Independent Democratic Conference (IDC), a caucus comprised of four Democratic members of the New York State Senate, released a paper titled “Cyberbullying: A Report on Bullying for the Digital Age.” Responding to growing concern over a string of youth suicides in which social media and the Internet played a role, the proposal argues that existing criminal and tort law, specifically those covering harassment and stalking, are ill-equipped to deal with cases of cyberbullying and “bullycide” – defined as instances in which bullying precipitates the victim taking his or her own life.

To bring these laws up to date the proposal would extend the crime of cyber-stalking in the third degree to include “cyberbullying,” while expanding the crime of manslaughter in the second degree to include “bullycide”.

The report goes on to embrace what the authors call “a more refined First Amendment” where free speech would “be treated not as a right but as a privilege – a special entitlement granted by the state on a conditional basis that can be revoked if it is ever abused or maltreated.”

Here the authors turn to John Stuart Mill’s harm principle and Oliver Wendell Holmes’ famous line, “the right to swing my fist ends where the other man’s nose begins” to support their argument that speech, especially in the digital age, can be used as a weapon and should therefore be regulated as such.

To be sure, the recent rise of suicides in which digital technology, the Internet and social media have played a role is extremely troubling, especially insofar as the victims in these cases seem to belong predominantly to one oft-discriminated against group: the LGBTQ community. Take for example the case of Rutgers student Tyler Clementi, who committed suicide after his roommate secretly taped a sexual encounter Clementi had with another man; or the fourteen-year-old boy from Williamsville, New York who took his own life after being relentlessly bullied because of “struggles with his sexuality”. In fact, the only certainty to be gleaned from these tragedies is that the slow but steady trend towards the adoption of laws protecting same-sex marriage equality fall far short of guaranteeing social justice.

But is the Internet to blame? Has social media changed the nature of bullying (and bullies) or has it simply extended the playground into the home?

On this latter question Dr. Jasmine McNealy, a communications law professor at Syracuse University, says the cyberbullying debate is similar to that of online privacy because they are both rife with unrealistic expectations about where certain social spheres end and others begin.

“Context is key,” says McNealy, adding, “most digital natives think of cyberspace as an extension of the home.”

In this sense conflated notions of online privacy – the belief that there exists a certain “expectation of privacy” in cyberspace – are leading some, like the IDC, to suggest (in keeping with Justice Holmes’ pugilistic metaphor) that our right to free speech should stop, not where the other man’s face begins, but where his Facebook wall begins.

Confusion regarding free speech and cyberbullying in this unsettled online environment has been especially difficult for schools, which must balance the need to provide a safe learning environment with the First Amendment rights of students.

Typically, schools have relied on the Tinker test, emanating from the Supreme Court’s decision in Tinker v. Des Moines School District (1969), to determine whether disciplinary action violates a student’s First Amendment rights. But the proliferation of mobile web devices and the pervasiveness of social media have made it increasingly difficult for school administrators to determine where cyberbullying is occurring and whether it poses a significant threat or disruption to school activities.

Do schools have a responsibility to monitor and potentially discipline students for hateful speech posted on social networks if they feel it could pose a threat to students? What about hateful speech posted on campus using a mobile phone?

It is amid this murky area of law that the IDC looks to provide recourse for victims of cyberbullying, but in doing so it throws one of the most important tools for combating bullies under the bus: namely the First Amendment.

In this sense, the proposal’s most egregious misstep is its willingness to sacrifice individual rights like free speech and expression without placing any responsibility on individual users to become more active participants in guarding their privacy and who they choose to associate with online.

To this point media scholars have for years examined the myriad ways in which online media creates increasingly “active audiences”, as opposed to the more passive audiences of the Television age. However, what cyberbullying and the broader online privacy debate seems to suggest is that when it comes to online social media use, especially among younger users, many tend to be selectively active.

Actively sharing is fun and easy; actively patrolling ones privacy is a chore.

But if the Internet has extended the playground into the home it has also provided users with the ability to choose who can play by allowing them to essentially mute the cyberbully at the click of a “defriend” button.

And then there are the more oppositional methods of dealing with cyberbullies, which also happen to rely on the First Amendment’s guarantees.

Take for example Dan Savage, the writer and co-creator of the “It Gets Better” campaign, who harnessed the Internet to fight back against Republican presidential candidate Rick Santorum’s own form of bigoted bullying by creating a website assigning the presidential hopeful’s last name with a particularly graphic sex-related term. The website has since received so many hits that it now rests atop the list of findings in a Google search of the word “Santorum.”

Of course Dan Savage is an adult, not to mention a particularly pithy social commentator. It is unfair to expect adolescents, many of whom are being unrelentingly harassed by peers and in some cases adults (like Lori Drew who posed as a sixteen-year-old boy on MySpace in order to feign interest and inflict emotional harm on thirteen-year-old Megan Meier, a classmate of Drew’s daughter. When Drew — masked as the boy — wrote to Meier that “the world would be better off without you in it”, Meier responded by hanging herself) to fight back in the same way. But it is also unfair, not to mention unconstitutional, to strip them of the opportunity to do so.

To those involved in the cyberbullying debate the answer seems clear: the Internet has replaced broadcast as the pervasive medium affecting society. And while the medium has changed, the opportunity to voice hateful or offensive messages remains. But as Dr. McNealy says, “the beauty of the First Amendment is that it protects all kinds of speech.”

Abhorrent examples abound, including the hateful messages of the Westboro Baptist Church, whose First Amendment right to protest the funerals of soldiers with vitriolic anti-gay messages was upheld last spring in the Supreme Court’s decision in Snyder v. Phelps (2011).

Understandably, this inclusive view may be hard to accept for those directly affected by cyberbullying, but there are alternatives short of dismantling freedom of speech that should be pursued, including pressing social media websites for more privacy options, new media literacy campaigns, anti-bias education, hate crime prevention, and the simple – and remarkably effective – reassurance that it does “get better.”


Kenneth A. Merrill is a graduate student in Media Studies and the Research Assistant for the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University.