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“Sticks and stones may break my bones but on-line posts may land me in prison”.

“Sticks and stones may break my bones but on-line posts may land me in prison”.

A brief look at the National Trends regarding the use of social media and its affect on legal policy- PART I

By Kristie Walsdorf

The term social media generally refers to any social network sharing internet site. Most recognizably, it includes facebook, twitter, YouTube etc. These are public websites where an individual signs up to participate on its website. Once you become a member, the individual is allowed to share or “post” information on its site and invite whoever you wish to view your material. The ability to limit information and users from what they may view on your site is completely within the creator’s discretion. Although innocuous and friendly use, such as photo sharing or family updates, are abounding, the door is open to use the medium for other limitless, less friendly uses, such as gossip, salacious talk/photo’s, and/or ex-husband/boyfriend bashing. The scenarios are countless. This new technology, in the hands of some computer savvy individuals, is creating a mountain of social and legal challenges, some foreseen and many unforeseen. The power of the internet likened to a baby, is just beginning to crawl, and its full potential and parameters are no where in sight. Thus, the dilemma of how to address these issues is a climb up new and uncharted territory as each side struggles with creating answers about how to cope, correct, and prevent negative outcomes from arising.

One of the negative uses that have begun to attract national attention is the subject of on-line bullying or “Cyberbullying”. After the warning bell was rung with the Columbine High School Shooting tragedy, caution flags were raised about the tangible effects of bullying on society and how we treat and recognize it as a community issue. It was learned after the shootings that the teenage shooters themselves were victims of bullying. Since that time, there have been numerous tragedies of school age children committing suicide after having been bullied on line and in person. In fact, numerous studies have drawn links to bullying and teenage suicide. Thus, there is a renewed focus on recognizing and preventing all forms of bullying of school age children.

The Center for Safe and Responsible Internet Use defines “Cyberbullying” as sending or posting harmful or cruel text or images using the Internet or other digital communication devices. That is an incredibly vague and subjective definition. The struggle over clarifying and what is harmful or cruel speech versus what is actionable and non-protected speech surrounds the current state of the law in this growing field. What some organizations are advocating is actionable speech is in reality protected speech. Writers and speakers of rude or hateful speech are not committing illegal acts. It is well within our protected First Amendment Right to be rude and harsh in and out of public. Arguably, as teenagers spend more time on the Internet and have mobile devices such as iphones/ ipads/ blackberries, teenagers are more vulnerable to bullying and what they see are personal attacks as it is increasingly easy to carry out the bullying as its effects are felt almost instantly in the palm of their hand and not only in the school yard. In light of that increased exposure to bullying, more teens may be feeling the effects of the bullying which makes it harder for some to take a position that seems to advocate protecting our First Amendment Rights over protecting our children. Naturally, parents of deceased teens cite the links between the bullying and the suicide creating a slew of litigation attempting to hold someone responsible for the terrible tragedies putting the First Amendment in the center of the disputes.

As many of us have school aged children returning this fall, we may recall having to review and sign agreements/pamphlets with the schools regarding bullying and the schools policy towards it. In many cases we were asked to sign and have the children turn back in materials stating that we will ensure our children do not participate in, nor will we tolerate our children acting as bullies in person or on line. Some may have spelled out potential penalties for our children who are found to have engaged in such acts to be disciplined. What you may or may not realize is that there may be long lasting effects of such “agreements” that may have lifelong consequences for our children, up to and including temporary or permanent suspension from school and criminal charges resulting in incarceration, arising from alleged violations of the schools bullying policies. Today, many school districts and state are moving with calculated steps to limit their financial and legal exposure and liability by crafting new policies regarding bullying in order to insulate themselves from potential litigation. This controversy raises numerous constitutional issues. Do you feel that it is fair that school officials may expel or worse press criminal charges against your child for conduct committed outside of school with intangible non face to face contact? Should your son or daughter be suspended for what they say on facebook about a principal or teacher? Shockingly, it is not just teenagers who are committing the bullying against other teenagers. It is also adults bullying other teens and adults bullying other adults. I will examine the state of the law and discuss a few notable cases on the subject.