Cyber slammed

Kids are getting arrested for raunchy online bullying. It's definitely offensive, but is it against the law?


Amy Benfer
July 3, 2001 11:03PM (UTC)

The first indication that the seemingly obscure practice of cyber-bullying might have reached outrageous proportions was an item in the New Yorker titled "The New Bathroom Wall." As much as one can discern from the understated style of the Talk of the Town section, the incident in question was not so much a harrowing news event as it was an amusing anecdote about teenage life or, at worst, a parable about how affluent Manhattan parents have access to just about anyone they need, including the district attorney.

Regardless of the gentility of the prose, however, the details packed a wallop.

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It seems that students in the Manhattan interschool system -- a consortium that includes the kind of private schools that parents train their children from age 3 to attend -- had decided to pool their vast collective brainpower to find out who was the biggest "ho" in their ranks. To do so, they enlisted the services of Freevote.com, a free Web site that lets users create a virtual voting booth.

The Interschool Ho voting booth listed and ranked 150 students before parents and teachers got word of it and had it shut down -- first by e-mailing the webmaster of Freevote.com, and when that didn't work, by having the Brooklyn district attorney place a call to Freevote.com to give it a nudge.

No charges were filed in this case; no students were suspended or expelled, and the intervention of the D.A. seems to have been more of a warning shot than any indication of an intention to press charges. Charles Hynes of the D.A.'s office told the New Yorker, "It's very clear: There's no accounting for taste, but the site is protected by the First Amendment Free Speech clause."

A few miles away, the students at Horace Greeley High School in Chappaqua, N.Y., a wealthy Westchester County suburb, were not so lucky. When word got around school in late May that a Web site run by two senior boys, and accessible by password to about 14 other boys, contained personal information on some 40 girls -- including family history, phone numbers, addresses and, most troubling, sexual experience -- the principal, Kathy Mason, called the New Castle Police Department. The two boys were suspended for five days without a hearing and charged with second-degree harassment, which carries a sentence of up to one year in jail and a $1,000 fine.

Days later, Westchester District Attorney Jeanne Piro announced that, while some of the material on the site was "offensive and abhorrent," it did not meet the legal definition of harassment and criminal charges against the two boys would be dropped. The community reacted with outrage. (The boys -- through their lawyer -- declined to give interviews.)

Perhaps the most extreme case of message-board malignancy this spring occurred in Dallas. The postings started May 29 on the message board of a Web site started by a former student at suburban Lake Highlands High School. The thread was called "Lauren is a fat cow MOO BITCH."

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Among other things, the anonymous poster, who identified himself or herself as "MOO BITCH," made fun of Lake Highlands sophomore Lauren Newby for her weight ("people don't like you because you are a suicidal cow who can't stop eating") and her bout with multiple sclerosis ("I guess I'll have to wait until you kill yourself which I hope is not long from now, or I'll have to wait until your disease [M.S.] kills you"), and urged her boyfriend, Chris, to break up with her ("I will have a huge celebration and hook up Chris with some hookers so that he knows what a non-fat cow looks like.")

The Lake Highlands message board, which can still be viewed online, is exceptional not only for the viciousness of the attacks on Newby (which included an entire page of the words "Die bitch queen!" repeated hundreds of times) but also because the violence online escalated into the offline world.

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Newby's car was egged, "MOO BITCH" was scrawled in shaving cream on the sidewalk in front of her house and, on the evening of June 7, a bottle filled with acid was thrown at her front door. Newby's mother, who opened the door, suffered minor acid burns, and the arson department was called in to investigate. It's still not clear if the person responsible for the postings was also responsible for the vandalism, but in a report filed with the Dallas Police Department, Lauren stated that she believes both were the work of a single individual. (She did not return calls from Salon.)

While there is nothing particularly new about kids who taunt, bully and harass other kids, the appearance of these attacks on the Internet gives the ugly rites of adolescence a chilling new spin. The sense of exposure, humiliation and vulnerability felt by the victims of bullying is heightened, and their escalated fears of social banishment and lasting emotional damage are shared by their parents.

But regardless of how distasteful and frightening these recent incidents of cyber-bullying may seem, they are most likely out of the legal reach of both school administrators and the criminal court system (although Newby's case clearly involved criminal territory; the attack on her home would most likely bring a charge of aggravated assault). All three cases involved message boards run by students but not hosted on school-owned computers -- which means that the schools themselves most likely have no jurisdiction. And none of the cases suggests a basis for criminal charges; the only recourse for the kids involved would be the civil courts.

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There are laws and legal precedents to govern behavior by teens and adults on the Internet. But the network itself is so new, relatively speaking, that many authorities simply don't understand the laws. Even a detective who specializes in Internet crime (who asked not to be identified) admitted that he had no idea how he would proceed on the Lauren Newby case.

Because Texas has no laws targeting computer crimes, in the Newby case prosecutors would have to respond to the Internet-related actions with charges of harassment. In the past, such allegations have usually involved stalking or threatening contact by telephone or mail. Harassment at school and in the workplace have historically been defined as behavior that has created a "hostile environment."

The closest offline analogue to a message board -- especially one limited by password or by interest to a group of users in a particular high school community -- is the "slam book" or the bathroom wall. That is, essentially, what the Chappaqua case boils down to: If 14 boys had passed around a black-and-white composition book listing phone numbers and raunchy comments about a list of girls in their class, it might have warranted a trip to the principal's office, but would it warrant a call to the police station? Would it be national news? Would it make the New York Times if "Sheila gives good head" was found written on the bathroom wall of Horace Greeley, or if "Charles is a ho" was written in the girls bathroom at Dalton?

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"Any incidents involving the Internet get a disproportionate amount of media attention," says Bennett Hazelton, the webmaster for Peacefire.org, an organization dedicated to supporting the rights of minors online. "If you have a popular cheerleader harassing an unpopular girl in school, the administration would never dream of calling the police."

Adds Cindy Cohn, spokeswoman for the Electronic Frontier Foundation in San Francisco: "I don't think in general that there is any difference whether the message is coded in electrons or on dead trees. The only time you could make an argument that different rules would apply to the Internet is if the comments reach a broader audience than they would if they were only on paper -- like, say, someone evaluating a student's application for college. But in general, the people you are most embarrassed to have see a posting on the Internet are the same people who would see it on paper -- that is, your peers."

Says Aaron Caplan, an attorney for the Washington state ACLU: "Even if it reaches a wider audience, your freedom of speech isn't limited to contexts where your speech has little or no impact."

Mike Hiestand of the Student Press Law Center in Arlington, Va., agrees that having a password might minimize the damages if, for example, a student tried to sue for libel; but he also points out that the legal definition of libel applies to any published material that more than one person has seen.

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If the closest analogue to a message board is a slam book, the closest legal analogue to the Internet is a sidewalk, according to the 1996 Supreme Court ruling in Reno vs. ACLU. According to that decision, the Internet, unlike the public airwaves, which are subject to stricter guidelines, is relatively protected when it comes to free speech. This protection extends to "high school kids saying vulgar, unproductive, socially useless gossip on a Web site," explains Caplan, who has successfully defended several students who were punished by school administrators for publishing what was deemed to be offensive content on off-campus Web sites.

For students enrolled in a public school, explains Caplan, the school is considered a government body and therefore the students are entitled to free speech under the First Amendment. (This protection may not apply to students at private schools, however, because there may be a contract between the school and the parents and students regarding behavior, both on and off campus.)

This right to free speech is not absolute -- the courts have recognized the need of schools to maintain order and an environment conducive to learning and thus allow school administrators to restrict student speech if it represents a material disruption to the learning environment. But, says Caplan, citing the 1969 Supreme Court decision Tinker vs. Des Moines Independent Community School District, which upheld students' rights to wear black armbands to school in symbolic protest of the Vietnam War: "Students don't give up their rights at the schoolhouse gate."

Indeed, in the last five years many state courts have upheld the right of students to publish content that school administrators found offensive, as long as the content was published without using school resources. Most of these cases dealt with students who were mocking or critiquing the policies of administrators and teachers.

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According to the Student Press Law Center's CyberGuide, one of the first times school officials took action against a student for an independent Web site (a site not run or accessed by school computers) was in 1995 in Bellevue, Wash., when Paul Kim, a senior honors student, created "The Newport High School Unofficial Homepage." The site contained talk about sex and football that administrators found offensive.

Upon learning about the site, the school's principal contacted the National Merit Foundation and the colleges to which Kim had applied, asking them to rescind the school's letters of recommendation. This case never went to court: When Kim threatened a lawsuit, the school issued a formal apology, paid him $2,000 and reinstated his recommendations.

Since then, courts have upheld students' rights to publish all sorts of offensive content on home computers -- including a site that showed school administrators in simulated sex acts; one that showed a teacher morphing into Hitler; and one that contained a "Graffiti Wall," which encouraged students to post comments about students they didn't like. (All of these cases can be viewed in more detail on the Web site of the Student Press Law Center.)

"Off-campus speech has generally been considered censorship-proof," according to the CyberGuide, though "it can be little consolation to students that academic sanctions and disciplinary punishments doled out by overzealous and misinformed administrators are often overturned or settled months or years later -- long after academic damage has been done and legal bills have piled up." It may also be little consolation for a student who is being attacked by another on an off-site message board to know that neither the school nor the police can intervene on their behalf before their reputation is completely trashed online.

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Michael Carr, a spokesman for the National Association of Secondary School Principals, says that it should be common knowledge among school principals that they do not have jurisdiction over students' off-campus speech -- though the relative novelty of the Internet means that some administrators have not learned this yet. What's more, Carr points out, there is no national consensus on what constitutes harassment on school grounds: "I don't foresee us ever setting a definition of harassment. That's for local school boards to decide. And it's still subjective. Even at the local level, you're going to have a debate going on."

In an interview with the New York Times, Donald Parker, superintendent of the Chappaqua Central School District, defended the decision to call the police to arrest the boys responsible for posting personal information about other students. "It's just not appropriate to put information about people on a Web site. We all realize that, since Columbine, things have changed."

None of the Chappaqua comments have been released to the public, but it seems like a panicky stretch to equate raunchy dating tips along the lines of "Sally sleeps around" with comments that indicate an intention to murder other students, as in, "I'm going to go to school tomorrow and bash Sally's head in with this mace which I've bought for this purpose." One is mean, personally devastating and perhaps grounds for a civil suit; the other is mean, personally terrifying and perhaps the grounds for criminal charges, if it can be generally surmised that it is a "true threat" -- that is, a threat specific enough to qualify as a description of a future action, and not simply hyperbole.

Parents and students can and do sue school districts for failure to protect kids who are being harassed on school grounds; but the problem in this spring's three cases of cyber-bullying is that even if the students' behavior met the legal definition of harassment, it did not take place at school. And although the girls who were the focus of the comments might have the basis for libel suits in civil court, the boys who were suspended could also have the makings of a civil lawsuit against the school.

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"In this case [Horace Greeley High School], the principal probably overstepped the law in suspending the students," says Hiestand of the Student Press Law Center. "It's a matter between the student who posted the item and the student about whom comments were made. It's unfortunate that the police didn't realize before the district attorney was brought in that we are talking about speech here, and we don't arrest people for speech, unless the speech involves a clear threat. Sexual comments about another student do not constitute a clear threat. They can be offensive, they can even rise to the level of libel, but those kinds of matters are dealt with in civil court."

Indeed, in the case of the student whose Web site featured a photograph of his teacher's face morphing into Hitler, the criminal charges were dismissed, but a jury later awarded the teacher $200,000 in damages after a defamation suit in civil court.

"Students can sue other students," says Hiestand. "They need to have this message hammered into their heads: They are responsible for everything they publish online. I hope that some of these messages are getting through. Just because you can post something online doesn't mean that you should. But kids are going to be kids."

But even in civil court, the outcome of a case depends largely on the charges filed. In the case of libel, the accused can use the defense that the hurtful statements are true -- leaving the unsavory possibility that a savvy defense team could set out to prove that a student really was the biggest ho in the Interschool system, or the blow job queen of Chappaqua.

But in the case of simple name-calling, it may be difficult to divine the nature of the slur. Says the Electronic Frontier Foundation's Cohn: "So and so is the biggest ho? What does that mean? The law doesn't deal well with parsing student slang."

"Can you imagine," asks Peacefire.org's Hazelton, "what would happen if an adult woman tried to have a guy arrested for calling her a slut? Just because a girl is a student at a ritzy school, it doesn't give her more rights. There are limits to what you can say, but they shouldn't have additional restrictions on what you can say on a message board until you are 18."

Of course, the webmaster of any site can remove posts at any time. Hiestand explains: "If you as a webmaster have not played a role in creating or encouraging the posts, the law will probably protect you in a civil or criminal suit. But it does present an ethical question. If someone is slandering another person on your message board, it's probably your moral responsibility as a webmaster to remove that stuff."

The Student Press Law Center bills itself as a resource for students who are being censored for producing alternative journalism online, and Hiestand says that each time a student gets in the news for doing something stupid online, it makes him furious. "The Chappaqua case, the kid with the morphing Hitler head, these are the kinds of cases that make the news. Most students aren't out there doing those things. It makes our job defending serious student journalists much more difficult."

It may seem callous to suggest that the best recourse for a kid being brutally harassed by another kid online is to simply repeat the playground mantra "Sticks and stones may break my bones, but words will never hurt me." But strangely enough, the Newby case also demonstrates the way that kids will come together to defend another kid against harassment.

Immediately after MOO BITCH started his or her postings on the Lake Highlands message board, other posters jumped in. The next post immediately following MOO BITCH's debut was: "my god, what is wrong with you?? that is so horrible! i would say the same about you but i cant be that mean, i hope you get a lot of crap for this because it that is awful."

Over the next few weeks, people dropped by the message board to attack MOO BITCH and defend Newby. MOO BITCH was scolded for remaining anonymous while Newby's defenders signed their names. Her boyfriend, Chris, posted a long message to the board, saying, among other things, "I love you so much Lauren"; "I've never been happier in my life"; and "To Austin and Kevin and everyone that has had so little of a life to revolve it around slamming the person I love, please don't ever talk to me again." The other posters met his entrance with applause; one wrote back: "Chris, I just gained so much respect for you. I wish there were more guys like you."

Finally, after the attack on her house, Newby herself started a thread titled "This ends now." She detailed the vandalism that had occurred and asked posters to contact her with any information that she could pass on to the police.

There is nothing comforting in watching teens use new technology to engage in the same old immature and vicious behavior. And the fact that the First Amendment protects a kid's right to flame another kid on the Internet is hardly a consolation to the kid being flamed. The bottom line may be that to find oneself on a list of school sluts or fatties constitutes involuntary tutoring in constitutional law -- the message board attack as a particularly hellacious lesson in finding out what it means to live, and play with computers, in a democracy.


Amy Benfer

Amy Benfer is a freelance writer in Brooklyn, N.Y.

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