Student's Off-Campus YouTube Bullying Of Another Student Protected Free Speech

from the oh,-we-still-have-that? dept

There’s been a lot of talk and hype about “cyberbullying,” these days. There’s no doubt, of course, that school bullying is something that many kids have to deal with, and it’s not enjoyable at all. In the age of the internet, of course, that bullying can not only be more intense, but it can go much further than it used to, following you into your home and being exposed to a much wider audience. And yet, it still feels like some of the moral panic around “cyberbullying” is blown totally out of proportion. The fact is, some people out there are going to be jerks, and part of growing up, unfortunately, is learning to deal with jerks. That doesn’t make it a good experience, but you simply can’t outlaw being a jerk, no matter how hard you try. In fact, one of the things that’s missing in so many of these discussions about “cyberbullying” is the First Amendment, which protects speech you don’t like, just as much as the speech you do. Now, obviously, it is possible to go over the line, into a threat or causing real harm, but we do need to be careful not to get so over-protective that we forget that even most jerky behavior is protected free speech.

Thankfully, some courts still remember this point. Michael Scott points us to a recent ruling about a student who was suspended from school after she posted to YouTube a video of herself and some friends making fun of another girl at school. The student argued that the suspension was a violation of her First Amendment rights, in particular because the speech was done off-campus (something that’s come up a lot in various school suspension cases). The court ruled that schools can discipline students for off-campus activities but that they need to be aware of First Amendment rights, and in this case, the student’s actions did not rise to the level necessary to take action. The court cited the famous Tinker v. Des Moines case, which is the seminal case when it comes to student free speech issues, noting that while this video may have been mean, it did not rise to the level of creating a “substantial disruption.”

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Comments on “Student's Off-Campus YouTube Bullying Of Another Student Protected Free Speech”

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MadderMak (profile) says:

Re: Re:

I guess it would depend on the actual statements made in the video.
eg: “I think you are a b*tch” vs “You are a b*tch”

One would possibly lend towards defamation the other is opinion.
Also the context may clearly indicate the comments are not serious in nature or intended to defame (or would be taken as such by any member of the public viewing them) given the context.

Can the lass say “Streisand”? better not to bother and move on with life.

Anonymous Coward says:

Re: Re: Re: Re:

Actually, it isn’t all that difficult. Honestly speaking, children from large families deal with teasing in and out of school. It’s a good way to get a thicker skin. If you hold yourself in such low esteem that something this petty gets to you, then maybe you need outside help.

Marcel de Jong (profile) says:

Re: Re: Re:2 Re:

I can tell you, from personal experience, that years of near-constant teasing and bullying does make your self-esteem and your self-worth become 0!

Words don’t hurt they say, and I shout BULLSHIT! It does hurt, and if it gets repeated enough you start to listen.
I’ve been on the edge, where I have contemplated taking my own life, because no-one would miss me, because I was worth nothing. That’s what I honestly believed. Thankfully my family found out and fought for me. Against myself and against those fucking bullies.

Don’t you dare shrug it off as “well grow a thicker skin”, because kids at that young age are very impressionable, and people tend to believe that shit after it has been said to them over and over and over again.

out_of_the_blue says:

Re: Re: Re:3 "Don't you dare shrug it off..."

Absolutely right.

One of the problems with America today is complete lack of empathy for the oppressed. The tendency of those who coasted into easy lives to ignore injuries to those less fortunate is exacerbated by television shows promoting torture, violent video games, and extolling “capitalism”, aimed at people who are themselves in fact powerless but through the magic of “media content” can imagine themselves as cruel tyrants, cold murderers, and exploiters of the poor. Even foreign wars based on what everyone now recognizes as outright lies are shrugged off — or worse, supported.

One of the techniques of social control is that so long as the powerless can feel superior to someone else, they don’t notice oppression from above, but instead act to enforce and spread the tyranny. — Just WAKE UP and look to those on top, because they’re the actual source of most problems in society. THEY are making you behave like animals by suppressing natural empathies, besides class interests.

Anonymous Coward says:

Re: Re: Re:3 Re:

I not only dare I encourage that kids grow a thicker skin and learn how to deal with bullies, there are ways to make bullies pay and the most effective ways never ever involves the legal system.

I knew a bully that was shunned by his friends at school and in the neighborhood do you think he continued behaving the way he did?

Also bullies are insecure people they do it for the attention or because they can, humiliate them in public and things change.

Create the anti-bully squadron there is a lot people can do if they just put their minds to it and none involves giving up your first amendment to get something.

Anonymous Coward says:

Re: Re: Re:3 Re:

I’ll shrug it off as “quit living in the past”

Been there, done that. Made fun of, bad self esteem, except then I did grow a thicker skin. Then I did learn to fight back by using comedy. And getting better grades than the people making fun of me, going to college, getting a great job, and generally moving on with my life helped quite a bit too.

You should try it sometime.

Marcel de Jong (profile) says:

Re: Re: Re:4 Re:

Oh don’t worry, I’m not living in the past, I’ve grown past it now. I always had better grades than those who bullied me (was part of why I was being bullied).

But it makes me so angry, when people just say “oh you should just shrug it off”. I endured that kind of hell for 8 years, and for the first 7 years, I thought that no-one would ever listen to me. And it was a hell! At some point in the 8th year in, teachers made me spend lunch breaks in the teachers’ lounge, because I wasn’t safe outside. It didn’t actually help diminishing the teasing, but it made my lunch breaks a bit more enjoyable.

Bullying can have severe consequences for the victim that lasts years.
Even today, I feel very anxious to even speak up in groups (even if they are all like-minded people), for fear that people judge me negatively on it, and start teasing me.
I have a hard time trusting people, and I avoid conflicts, where I can. And I try to blend in with the wall.

In that regard is the Internet a great liberator for me, because you can’t see me and I can’t see you, and I dare to speak up for myself.

Fighting back to those bullies didn’t help in my case, ignoring them didn’t work either. I just was different, and that was reason enough. After I gave a couple of the bullies a black eye, the bullying intensified. After I tried to laugh it off, they kept going. If I just ignored them they thought that was funny. Nothing that I tried worked.
I was lucky, I was leaving school, and none of my fellow class””””mates”””” were allowed to go to the same school, the head of the school I was leaving, could foresee what would’ve happened if that were allowed to happen.
So I got a fresh start, and then it went better. I made friends, for the first time in my life, who didn’t backstab me.

But let me tell you, if those class””””mates”””” had gone to the same school as me, I would not have been here.

MadderMak (profile) says:

Re: Re: Re: Re:

Okay – having read the comments following this I would like to point out a couple of thoughts I have.

I was bullied somewhat and survived because my family reinforced my self worth. I now have my own children and I am quite certain they will experience something the same – it does appear to be a part of growing up. However given i support and encourage them they to are likely to grow and develop as people despite this.

There are things a child can do – seeking help from a caring family, a “switched on” teacher, good friends etc that will have far more impact to negating the bullying than a legal law suit. That should be the final resort and if you end up there better to change schools.

Just my 2 cents worth.

Vigo says:

Not over yet

I’m sure this sort of issue will still be grandstanded for quite a while by media, politicians, schools, etc. the whole nine yards. It’s still a useful prop-up issue, and it could still hold a threat to free speech.

I agree, this “cyberbullying” stuff sucks, but bullying is bullying. It’s pretty much the equivalent of a bully photocopying something embarrassing all over the school halls, as was done a few years back. In my opinion, it is probably better that it permeates into home life these days. Since parents are now more tech savvy, they can spot these problems and stop the issues before they become tragic.

Anonymous Coward says:


>> In this day and age i’m surprise these “cyberbullies” aren’t being sued for liable and slander.

That’s because the kids are aware that the highest office, that of the Obama Administration, won’t hold Bush or his cronies accountable for obvious accounts of torture, treason, or selling their own future to foreign countries for pennies on the dollar. By way of example, they know that if they are caught for libel or slander, it would only take a donation to Amnesty International or buying a goat the whole village can fuck will solve everything.

nasch (profile) says:

Re: Bleakness

That’s because the kids are aware that the highest office, that of the Obama Administration, won’t hold Bush or his cronies accountable for obvious accounts of torture, treason, or selling their own future to foreign countries for pennies on the dollar.

You’re right, that’s exactly why high school kids’ parents don’t file defamation lawsuits. Because of Bush and Obama. Makes perfect sense!

ofb2632 (profile) says:

past vs todays world

When i was growing up, if we had a dispute, we would settle it by fighting, then it would be over. Now, the first amendment protects these bullies and if you defend yourself to these attacks, you are the one in trouble with the law.
As a child or teenager, constant verbal attacks by several people can wear you down in time. As you read in the article, there were 3 girls. Typical pack mentality. The ones to blame are the parents of these girls. If i found out that my kids were harassing someone like that, i would drive to school and embarrass them in front of everyone. My kids know that.
If this victim finally snaps, the parents should be charged. Yes the parents are responsible for their children. We tend to forget that easily in this world. I see on the news many instances of the victim finally fighting back, and then the bullies are now playing the part of the victim and the bullies parents are screaming about the injustices of life. And all along these parents are the problem.

Anonymous Coward says:

Re: past vs todays world

Back then the fight would be between two people and end with a bloody nose or busted lip. These days, it may begin with two but others jump in and then someone brings a gun and then after the fight is over, the loser regroups and goes after the winner. There’s no honor these days…no rules or standards to uphold.

Bullying will always happen, but its up to the parents to teach their children to not bully and how to deal with being bullied. My dad told me to get a big stick and handle the situation…which I did…and he never picked on me again.

Anonymous Coward says:

Re: past vs todays world

This is not a matter of law this is a matter for the community. Bullies exist because they are part of learning, some will try to be the boss of others and will learn limits, to learn that they need a good social environment a.k.a. community that shun such behavior but don’t get into the legal realm because it doesn’t help, it will not stop it because kids don’t know better and they are still learning how to deal with life.

Personally I’m in favor of public humiliation of bullies and community discrimination instead of legal action it really drives the point harder.

I remember one bullies that was shunned by his pears people stopped talking to him he had no more friends he stopped his behavior after that, the same can be done by people, those parents from the bullies probably also encourage that kind of behavior and some probably never will see any fault in their own kids, are they responsible for their children yes, are they criminal responsible for them this is ridiculous.

Atkray (profile) says:

Re: Re: past vs todays world

I got the crap beat out of me every day until I stopped crying when they beat me up.

Sticks and stones will break my bones but names will never hurt me.

I agree with the above….It used to be that it was fought out on the playground. Eventually all bullies got taken down. I’m sorry for those who never developed thick skin but if you are going to be out and about in the world enjoying it you are going to need thick skin. I think that especially in elementary school teachers should let the kids fight stuff out on the playgrounds, the lessons learned there are often every bit as important as the ones in the classroom.

Michael Lockyear (profile) says:

Two sets of rules

It would appear that there are 2 sets of rules: 1 for adults and one for children.

If an adult made “derogatory, sexual and defamatory statements” about a colleague on Youtube and then invited a bunch of co-workers to view the video they would be fired for sexual harassment. They would certainly be given more than a “2-day suspension”.

Rich Kulawiec says:

Misplaced priorities

I think we need to replace the completely overblown self-righteous moral panic over the nonexistent problem of cyberbullying with completely overblown entirely unjustified panic over the nonexistent problem of cyberwar. And then shift back…and forth…as many times as necessary to gin up enough misdirected public outrage and fear that both will be fully-funded at the federal and state levels, thus ensuring a long, smooth ride on the gravy train for legions of overpaid consultants.

out_of_the_blue says:

Wrongly decided: minors don't have full rights.

I’m one of the least supportive of the overweening “in loco parentis” that has evolved, but if there’s not a role for schools in policing — non-judicially, but *some* punishment — this area, then the whole system is undermined. Simply put, minors *don’t* have the right to bully others through “protected” speech; it’s an important area in which to educate. I’m not surprised that a court decided otherwise, because instead of getting on a slippery slope in limiting speech, this decisison *greases* the existing slippery slope in preventing even justified “interference” by school officials.

To various above: you can’t actually sue a minor, nor are likely to prevail against parents in this gray area, so there’s no relief available from a court, besides up-front expenses at risk. It’s evolved that minors are in somewhat randomly protected bubbles, having either more or less rights than adults, mainly because those who make “laws” intend the effect of those laws to fracture society.

Overcast (profile) says:

“after she posted to YouTube a video of herself and some friends making fun of another girl at school.”

In 10 years, or maybe sooner – someone will be sitting at an interview for a job.

The interviewer will remember that YouTube video and someone will be sent packing. I’d request they leave it up, actually I’d copy it myself and post it using their real name – so that google searches find it.

A childish prank like this, could very well cost someone a job – or more.

Cowardly Annon says:

You know, it is her right to make fun of ppl. It’s her right to film it. She has all the power to post it on YouTube. She also has to pay for the consequences.

Her First Amendment rights weren’t what was taken away. It was the punishment for being a jerk. And no, being a jerk isn’t illegal, but there are consequences for it.

Bullying is an issue, and now there is a court ruling saying that you have a right to do it and you can’t get in trouble for it. At least, that’s how it looks to me.

duderino says:


I do agree with the article, my main problem is the effect the videos have on the other students as well. For example, those girls made and posted a video of them cursing out another girl in their school. Now what about the rest of the school? When they see that video, that might trigger some sort of response where they now pick on that girl in the school. Yes, those other students should now be responsible, but that kind of reaction isn’t being considered enough. But again, it’s all about protection of free speech so even still, the initial bullying act should not be resolved by the school…they are just jerks.

Don’t know if that makes much sense.

Jesse says:

Not sure about this case, but free speech does not protect defamation or harassment.

Mike, usually I find your pieces to be really well thought out and intriguing. I do truly agree that moral panics and over reactions don’t help anything. But neither does dismissing and trivializing bullying to the point of saying that it’s just a normal part of growing up and it’s just learning to deal with jerks. If it’s something that we all need to learn then have the teachers make belittling and publicly humiliating students part of the curriculum, because as it stands only a small proportion of students are learning this “essential” lesson. In the “real word,” most workplaces have respectful workplace policies and bullying wouldn’t fly, yet we implicitly allow it in our schools, largely due to indifference or subconsciously agreeing with the behaviour (particularly in the case of homophobia and some racism). Often, students don’t even see real consequences if they commit actual criminal offences like assault or true defamation.

If it was just “dealing with jerks” then why would so many children feel so hopeless that the only way out, or so they think, is suicide? Again, I agree that a moral panic won’t help, but I strongly urge you to watch the dismissive language.

DanVan (profile) says:

I am all for schools and other places of education starting to implement rules for students and attacking this bullying crap

I have seen first hand with kids of mine how other kids attack other students with myspace, facebook, and other social sites through THREATS or mockings.

I know it will be tough to identify who did it but if they do find out, I hope those kids are punished

Anonymous Coward says:

When I was in junior high, I had a bully who was quite fond of making my life hell. It all ended one day when I politely warned the gym coach what was going on and that if he did not immediately handle the situation he may end up sweeping this kid’s teeth up off the hardwood floor(per my father’s instructions).

Long story short, the coach did nothing and I responded to the bully’s next attack only a few minutes later with what was described to my parents as “the most brutal student altercation in the history of this school” by the administration. We were both suspended for 10 days, however, I was allowed back the next day after my father basically threatened(legally, not with violence ofc) the school board and the gym coach specifically for attempting to hold me responsible for defending myself when they had not taken action after being explicitly warned there was a problem.

That evening, both of our parents were called into a emergency meeting to discuss the event. Even better than the fact that I would no longer need to endure the bully’s threats, was the fact that his own father refused to press any charges of assault against me and promised his son in front of all of us that his swollen eye and jaw were the least of his concerns when he learned that this had been going on for months on end. Hearing “He’s gonna get a 10 day vacation to the island of redass.” from the kid’s father pretty much ended the discussion leaving most of us satisfied with the outcome.

Now, this was a little different than the OP. This was not teasing or harmless mocking, but real threats of violence, which only ended after a violent incident occurred which brought the bully’s actions to light and to an end. It’s kind of hard to blur the line between physical and virtual bullying. One is a genuine threat to a person, while the other is much harder to justify as being a real threat at all. I would think that in the case of this type of bullying, either ignoring it altogether(don’t feed the trolls) or responding with your own video mocking the bully(counter-trolling) would be in order.

I think the school is wrong for getting involved unless there was a clear physical threat to someone’s safety. They are not the morality police, nor should they be. It’s people’s right to form an opinion about someone else and share that opinion if they so desire. Whether the target of that opinion finds it hurtful or not is irrelevant. Whether or not they formed and expressed their opinion on- or off-campus is equally, if not less, relevant. It is just an opinion and can easily be ignored or countered.

MadderMak (profile) says:

Re: Re: Re:

I think I must disagree. Bullying in and of itself is unlikely to cause a suicidal depression unless the person in question also has underlying or pre-existing issues, pehaps around the family or society they live in, drug use, emotional trauma such as parents death etc etc.

A well raised child should not become suicidal over what is basically an outlier – the positive reinforcement from friends and family has far more strength. If however their family/home life is abusinve or negative towards the child then yes I agree it could well tip them over.

Of course I could be wrong but I am fairly sure most of the information I have read as a parent supported this view.

Anonymous Coward says:

Freedom of speech.

Regarding the freedom of speech argument, compare with laws against stalking. It is legal to call or mail someone without permission, walk outside their house etc, but we still have laws against stalking. Is stalking laws a big threat to our freedom to walk wherever we want or to use the phone? I would say no, because in certain cases it is easy to recognize when someone goes out of there way to harrass others.

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