Originally published in the San Antonio Current
Senator José Menéndez will have to bridge a tough line in his proposal to make cyberbullying a crime — one that balances the First Amendment rights of students with his attempt to crack down on online harassment.
The proposed legislation is called “David’s Law.” It’s named after 16-year-old David Molak, an Alamo Heights resident who killed himself on January 4 after a barrage of online bullying. The law would make electronically harassing or bullying anyone under the age of 18 through text messages, social media, websites or apps a misdemeanor.
Menéndez tells us that this is a minor part of his proposed legislation, which mainly aims to bolster cyberbullying prevention efforts in schools. However, making cyberbullying a crime seems like a big deal because students, regardless of how vile their speech can be, as it was in Molak’s case, still have a First Amendment right to free speech, especially when it’s done off-campus and not during school hours.
However, Menéndez believes criminalizing cyberbullying won’t infringe on free speech. “The Supreme Court has ruled our right to free speech is regulated by boundaries. You can’t yell ‘fire’ in a crowded theater is a classic example. You also can’t make threats against someone’s life and defend it as free speech,” he said.
He acknowledged that his proposed legislation aims to set a new such “boundary.” “Our goal with David’s Law is to establish a boundary that you can’t prey on children and coerce them or suggest to them they should commit suicide,” Menéndez told the Current.
In the United States, there are 17 states that have criminalized cyberbullying, according to the Cyberbullying Research Center. Menéndez’s proposal is modeled after Grace’s Law, which was passed by Maryland lawmakers in 2013. That law is named after Grace McComas, a 15-year-old girl who killed herself after being bullied by anonymous individuals online. It made cyberbullying a misdemeanor punishable with a $500 fine and up to a year in jail. At the time, ACLU attorney Sara Love told the Baltimore Sun that a portion of the bill that said using a computer in “a course of conduct that inflicts serious emotional distress” is unconstitutional because it’s too broad and could restrain a wide range of language. That law is currently being challenged in court.
In June, a cyberbullying law in North Carolina that made it a criminal act to post sexual information about a minor online in order to torment that minor was ruled unconstitutional. The state’s Supreme Court ruled that the language in the law was a restriction of free speech because it was far too broad. That’s also why a cyberbullying law was struck down by the New York’s high court. In 2011, New York’s Albany County passed a law that made it a crime to “harass, annoy, threaten…or otherwise inflict significant emotional harm on another person” through social media or text messaging.
There’s also the thorny issue of how much of this ugly speech happens off campus. Case law protecting this kind of speech can be traced to the Vietnam War, when a 13-year-old student named Mary Beth Tinker and a couple friends war black armbands to school protesting the war. They were sent home and a lawsuit was filed. Her case eventually made its way to the Supreme Court, which ruled that student’s don’t shed free speech when they go to school. More importantly, for cyberbullying laws, the Supreme Court in that case ruled that Tinker’s display was not disruptive to school. Since then, the courts have used what’s called a “disruption test” to consider whether school officials that have punished student’s for off-campus speech have violated their First Amendment rights.
Consider these two recent cases: a minor named R.L., who made a dumb joke on Facebook during a bomb threat at his school, and 18-year-old Taylor Bell, who made a rap video about shooting two school officials his friends had accused of sexual harassment and posted it social media. In R.L.’s case, he was suspended from school for 23 days after a bomb threat shut the school down. When officials sent everyone home, R.L. made this post on Facebook: “Plot twist, bomb isn’t found and it goes off tomorrow.” The courts ruled that R.L.’s post was disruptive since it was made during a bomb threat and that his punishment was constitutional. In Taylor’s case, he made the video on his own time, without school resources at his house. The courts ruled in Taylor’s favor, saying he did not substantially disrupt school by creating the rap video. The lyrics included: “You fucking with the wrong one / Gonna get a pistol down your mouth.”
Basically, these laws are new and the courts are still figuring out where the lines are. If the legislation’s too broad, free speech advocates and students who are arrested and charged would probably just argue that their actions didn’t disrupt a school’s educational mission. Nobody seems to have agreed yet on where the lines should be drawn when crafting a cyberbully law, in part because the U.S. Supreme Court has yet to see such a challenge and rule on it.
All of which means the line Menéndez will have to walk his bill this upcoming session is a complicated one.