This week, Blogging Censorship will look at student speech: the new technologies that create more spaces for free expression, and growing concerns about cyber-bullying, internet filtering, and student online speech off-campus.

Today, we’ll look at cyber-bullying, peer-to-peer. That is, students harassing other students online. A recent report from the Berkman Center for Internet and Society at Harvard University declared that cyber-bullying, not online predators, is “the most common risk minors face online.”
This conclusion has been reported as a minor salve to parents concerned about their children’s safety, but it also adds some more weight to ongoing discussion about youth (and therefore) student expression and the role of policymakers and schools to protect students and the school environment.

As the Berkamn report notes, cyber-bullying can different from “offline” bullying in its visibility: both to other students and to parents and school authorities. As the PEW Internet & American Life Project “Cyberbullying and Online Teens” memo reports:

In the past, the materials of bullying would have been whispered, shouted or passed around. Now, with a few clicks, a photo, video or a conversation can be shared with hundreds via email or milions through a website, online profile or blog posting.

Cyberbullying itself is hard to define. The National Crime Prevention Council (an educational non-profit, most famously know for McGruff the Crime Dog) has defined youth cyber-bullying as: “teens [using] the Internet, cell phones, or other devices to send or post text or images intended to hurt or embarrass another person.” Although 35 states have cyberbullying legislation, the attempt to create a federal statute after Megan Meier’s suicide was knocked down (we should note that this case was about adult-to-student, rather than peer-to-peer, cyber-bullying). The May 2008 proposed statute stated:

Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.

As Eugene Volokh at the Volokh Consipiracy noted:

So if I harshly criticize Reps. Sanchez and Hulshof (“hostile”) at least twice (“repeated”) in a way that a jury finds “severe,” whatever that exactly means, and if I do that “with the intent to … cause substantial emotional distress,” I could go to prison for up to two years. My criticism could be perfectly accurate. … The desire to cause substantial emotional distress could be prompted by the target’s reprehensible actions or political views, and could be coupled with a genuine attempt to persuade the public. Doesn’t matter: My actions would be a crime. This is clearly unconstitutional.

The Berkman report recommends more resources for “schools, libraries, and other community organizations to assist them in adopting their own risk management policies and for educating children, parents, and caregives on issues relating to online safety.”

In “Student Online Expression: What Do the Internet and MySpace Mean for Students’ First Amendment Rights” by David L. Hudson Jr. at the First Amendment Center, the author quoted Thomas Hutton from the National School Board Association. Interested in preserving the authority of local school boards to set policy as they see fit, Hutton said:

We do not advocate any one particular approach. If a school is going to go after student behavior off-campus, the school must make it clear in the code of student conduct so that it puts the students on notice. … There is a lot that schools can do short of imposing disciplinary actions, such as educating kids about responsibilities online and educating parents about the Internet. If a school official is aware of cyberbullying, one option is rather than imposing discipline, call the parent of the student who has been doing the cyberbulling.

This sentiment, that parents, rather than legislators, are best equipped to address cyberbullying, is amplified in James Tucker’s entry at the ACLU blog. He writes:

“Cyber-bullying” is a loaded term to be avoided by anyone interested in engaging in an objective look at online speech. Like past legislative attempts to justify online censorship, such as the “Deleting Online Predators Act” (DOPA) and the “Securing Adolescents From Exploitation-Online Act” (SAFE Act), the term is intended to stack the deck against the First Amendment. Specifically, it is meant to imply the regulation of unlawful conduct, not the censorship of protected speech, under the guise of protecting our children. …

Parents, not the government, are best positioned to police the websites and content that their children access. Efforts to inform parents and their children about what is available online should be encouraged. Ultimately, the only way for the Internet to remain a true marketplace of ideas for the 21st Century is to continue to promote the free exchange of information and speech, with the understanding that online speech can be as beneficial or as hurtful as speech occurring offline.