Albany County’s Cyber-bullying Law: Is it Constitutional?

Written by Alaina Bergerstock, Albany Government Law Review Member

 

Introduction

The days of traditional bullying on the playground or school bus have transformed into a more technological type of bullying called “cyber-bullying,” as discussed in a recent article by Michael Telfer.[1] Cyber-bullying has increasingly become an extremely serious problem as technology develops.   Cyber-bullying not only includes written words in chat rooms and instant messages, but it also includes impersonation through the creation of fake Facebook and MySpace pages.[2] In addition, “happy slapping” has developed as a new means of cyber-bullying.[3] “Happy slapping” involves a victim being physically attacked while the attacker’s accomplice stands by and videotapes or takes pictures of the attack, and the video and/or pictures are then posted on an online site, such as YouTube.[4] Another means of cyber-bullying is where an individual takes pictures of the victim in the locker room, bathroom, or other location, and then posts those pictures online.  Online polls, in which readers are asked to vote on humiliating questions about the victim, are also used to cyber-bully.[5]

The problem with cyber-bullying in comparison to face-to-face bullying is that bullying that occurs via electronic means is capable of reaching a lot of people at once[6] Cyber-bullying also has the potential of being an around the clock problem since not only does it happen during school hours, but it also takes place off of school grounds.[7] The use of internet and cell phones allow bullies to torment their victims any time they want.  Young people are using the internet and text messaging as a means of bullying because it is easier for them to be mean when they don’t have to face their victims.  The internet allows an individual to make embarrassing and derogatory comments and remain anonymous.  However, the truth is that cyber-bullying hurts just as much, if not more, than if a victim is being bullied in person.[8] The importance of peer approval to children is high and thus, cyber-bullying can be extremely destructive to those who fall victim to it.[9] Unfortunately, the prevalence of cyber-bulling is increasing; “[t]he U.S. Justice Department recently reported that cyber-bullying is at an all-time high, with 43 percent of teens saying they have been victims.”[10] Continue reading “Albany County’s Cyber-bullying Law: Is it Constitutional?”

Taking the Fight Against Cyber-Bullies Outside The School House Gate

Michael Telfer, Editing Chair, Albany Government Law Review Member

With the widespread use of the Internet in the last decade and the creation of websites such as Facebook and YouTube, the ability for people to connect with one another across the globe and with people they have lost touch with has been enthusiastically welcomed.  With the great benefits that new technology brings, also comes the ability for people to use it to the detriment of others.

Bullying has existed “as long as schools have,” but today bullying is no longer confined to the school house gates or even prevented at one’s front door, as it can “follow students to their rooms . . . their cell phones[,] or online.”[1] Through cyber-bullying, bullies can now “harass, threaten or intimidate others” by “e-mail, instant messaging, blogs, chat rooms, pagers, cell phones, and gaming systems.”[2] Specifically, bullies engage in cyber-bullying by videotaping their peers with their cell phones and posting embarrassing videos online through YouTube, creating fake Facebook profiles to steal the identify of other students,[3] and posting embarrassing comments on Facebook to humiliate other students.[4] Reports of students who have been victims of cyber-bullying have become nationwide news stories, such as the suicide of a freshman at Rutgers University in New Jersey who “jumped to his death . . . after his dormitory roommate and another student posted a video of sexual encounters he had with another man online.”[5]

As has been addressed in a previous Fireplace article, the issue of whether school districts can punish students for cyber-bullying when the student’s right to free speech is implicated is not uniformly defined.[6] Due to the fact that these incidents exist off of school grounds, the ability for schools to take action against cyber-bullies is limited because action taken by a school district can only be justified if the student’s online speech “materially disrupts class work or involves substantial disorder o[f] the rights of others.”[7] The uncertainty of the state of the law is not helped by the fact that the Supreme Court has “not addressed online student speech.”[8] The ability of schools to combat cyber-bullying has been tested in at least one case in California where a parent had his child’s suspension, due to the posting of a video on YouTube, overturned when the court found the disruption to the school caused by the video posting was “only minimal.”[9]

Since cyber-bullying usually impacts one student’s emotional well being and does not affect the larger school environment, students may be unable to rely on their school to protect them if cyber-bullying happens outside of school, which in most cases it does.   The question this article seeks to answer is whether victims of cyber-bullying have legal remedies through either criminal or civil laws of New York.

Continue reading “Taking the Fight Against Cyber-Bullies Outside The School House Gate”