Where Good Intentions Go Bad: Redrafting the Massachusetts Cyberbullying Statute to Protect Student Speech

Article excerpt

"'People don't appreciate how much the 1st Amendment protects not only political and ideological speech, but also personal nastiness and chatter.... If all cruel teasing led to suicide, the human race would be extinct.'" (1)

"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and ... inflict great pain." (2)

I. INTRODUCTION

On January 14, 2010, Phoebe Prince, a fifteen-year-old Irish immigrant and student at South Hadley High School, took her own life. (3) While the reasons for Phoebe's suicide remain unknown, what emerged in the broader media coverage of her death was an allegedly systemic pattern of bullying throughout her high school, a pattern ignored by administrators, faculty, and parents. (4) Phoebe's enemies attacked her with verbal insults, both in school and electronically outside of school, via Facebook. (5) Massachusetts officials sprang quickly into action after the media onslaught following Phoebe's death. (6) Northwestern County District Attorney Elizabeth Scheibel charged five of Phoebe's classmates with a multitude of crimes stemming from their reported bullying of her, including civil-rights violations with bodily injury, criminal harassment, and stalking. (7) The Massachusetts General Court also acted swiftly, passing what many experts deem the most sweeping and powerful antibullying statute in the nation. (8) The statute creates a broad scope of illegal activities for which students can face punishment, including incidents of cyberbullying that occur outside school walls. (9) Because the statute grants school administrators unique authority, Massachusetts now stands as a model testing ground for the national movement to curb bullying incidents in public schools. (10)

As researchers further explore the impact of cyberbullying on adolescents, many fear cyberbullying causes greater harm to victims than traditional bullying because of the nature of the Internet and other electronic communication. (11) According to a federal government initiative supported by President Obama, student-on-student bullying is a "major concern" in schools across the country, and can cause victims to become depressed and anxious, to refuse to go to school, and to contemplate suicide. (12) Further studies show a correlation between teenage victims of cyberbullying and increased contemplation of suicide or attempted suicide. (13) A 2010 study found that one in five middle-school students were affected by "willful and repeated harm" inflicted through electronic communication. (14) The Internet can electronically shield cyberbullies under a cloak of anonymity, preventing a victim from discovering the identity of the bully and increasing the vitriol felt by the victim. (15) The ease of electronic communication allows cyberbullies to reach past school walls and into the houses of victims whose fear now extends beyond traditional school hours. (16) Additionally, communication technologies and social-networking sites distribute cyberbullies' material to hundreds or thousands of people instantaneously, prolonging the duration of bullying and the associated embarrassment of the victim. (17) Unlike the school environment, electronic communications between adolescents remain relatively unmonitored by parents or other authorities, allowing repeated perpetration of the abuse. (18)

The Massachusetts statute reflects a growing trend of states attempting to curtail bullying of students via electronic media both inside and outside the classroom. (19) While most cyberbullying occurs outside the school walls, its effects are ever present within the school environment, contributing to the heightened sense of fear and hostility bullying victims face. (20) A majority of states have sought to give school administrators the legal tools to combat cyberbullying in the form of antibullying statutes that specifically target electronic communications, with varying degrees of protection for students' constitutional rights to free expression. …