Cyber-bullying for Attorneys June2012

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This presentation offers an overview of the legislative and legal landscape of cyber bullying and sexting. It is meant for attorneys involved in these kinds of cases.

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Cyber-bullying for Attorneys June2012

  1. 1. DISCLAIMER This presentation is for educational purposes only and does not constitutelegal advice. It is recommended that you seek legal counsel for specific matters.
  2. 2. What is Cyber-bullying?Cyber-bullying is the use of the Internet and related technologies, such as cell phones, to harm other people, in adeliberate, repeated, and hostile manner.
  3. 3. What is Cyber-bullying? Millenium High School, Arizona, an anonymous group creates a Facebook page that encourages users to post unflattering comments about students and teachers at the school. A teenager, who gets in a fight with friends, is the target of more than 100 mean-spirited tweets about her. A teen girl receives harassing messages from her friend “Josh” commits suicide by hanging herself, after he “tells” her the world would be better without her. “Josh” turns out to be the girl’s ex-friend’s mother (Megan Meir, 2006)
  4. 4. What is Cyber-bullying? As it has become more common insociety, particularly among young people, legislation and awareness campaigns have arisen to combat it.
  5. 5. What is Cyber-bullying? Cyber-bullying Technology:  Social Media platforms, such as Facebook ®, Twitter ®, MySpace ®, etc.  E-mail  Cell phones via text messaging or phone calls  Instant Messaging  Defamatory personal web sites  Chat rooms or other online “hang-outs”
  6. 6. What is Cyber-bullying?Cyber-bullying Categories:  Inadvertent  Vengeful Angel  Mean Girls  Power Hungry  Revenge of the Nerds~Parry Aftab, Esq., Executive Director, WiredSafety.org
  7. 7. What is Cyber-bullying?Cyber-bullying Techniques:  Flaming  Harassment  Cyber-stalking  Denigration  Impersonation  Outing & Trickery  Exclusion~Nancy Willard, MS, JD, Director, Center for Safe & Responsible Internet Use
  8. 8. What is Cyber-bullying?Cyber-bullying Statistics:  43% of teens have been cyber-bully victims, but less than 11% talk to their parents about it  35% of kids have been threatened online  As many as 160,000 students may stay home on any given day because of bullying  Cyber-bullying typically starts at 9 years of age  Cyber-bullying affects 65-85% of kids in the core group directly or indirectly through close friends~Various studies including 2003-2004 i-Safe America survey; Aftab
  9. 9. Current State of Laws 49 States currently have anti-bullying laws, only Montana doesn’t. http://www.bullypolice.org/ 8 states include the word “cyber-bullying” in their laws (Arizona, Kansas, Massachusetts, Nevada, Hampshire, Oregon, New Jersey, and New York). 31 states include reference to “electronic harassment” 7 states have criminal sanctions for bullying behavior (Idaho, Kentucky, Missouri, Nevada, North Carolina, Tennessee, and Wisconsin)
  10. 10. Current State of Laws 39 states have school sanctions for bullying 44 states (including Washington, DC) require school policies addressing bullying. No federal legislation yet. Rep. Linda Sanchez (D – CA39) introduced the Megan Meier Cyberbullying Protection Act, HR 1966, in 2009 session. Bill was not enacted and died in committee.  Concern: too broad and unconstitutionally vague  UCLA Professor Eugene Volkh “It is well within a person’s 1st Amendment rights to be rude and harsh.”~ Cyber-bullying Research Center, http://www.cyberbullying.us/
  11. 11. Law Example: New JerseyHARASSMENT, INTIMIDATION & BULLYING (HIB)New Jersey has been a leader in the establishment of astrong statutory, regulatory, policy and programframework to support the prevention, remediation andreporting of HIB in schools.http://www.state.nj.us/education/students/safety/behavior/hib/
  12. 12. Free Speech & First AmendmentMost schools claim that they are restricted as tohow they can pursue cyber-bullying because oftwo issues:  It is usually done off school property  The issue of the posts being protected by First Amendment rights
  13. 13. The Tinker Standard Tinker v Des Moines Independent Community School District, 393 US 503 (1969) Students were suspended for wearing black armbands to protest the Vietnam War. Court ruled that a “school may regulate a student’s speech or expression if such speech causes or is reasonably likely to cause a material and substantial disruption to school activities or to the work of the school.” 711 F.Supp. 2d. 1094, 1100 (CD Cal 2010)
  14. 14. Recent Cyberbullying Cases Two cases, J.S. v. Blue Mountain School District (593 F.3d 286, 308 (3rd Cir. 2010)) and Layshock ex. rel. Layshock v. Hermitage School District (593 F.3d 249 (3rd Cir. 2010) have had strikingly different outcomes In both cases, students used an off-campus computer to create a fake profile of a school principal. In both cases, the profile sparked a reaction on campus and enraged the principal. And in each case, the principal reacted by suspending the student.
  15. 15. J.S. v. Blue Mountain School District J.S. and her friend K.L., another eighth grade student at Blue Mountain Middle School, created a fake profile of middle school Principal James McGonigle, which they posted on MySpace. The profile did not identify McGonigle by name, school, or location, though it did contain his official photograph from the School District’s website. The profile was presented as a self-portrayal of a bisexual Alabama middle school principal named “M-Hoe.” The profile contained crude content and vulgar language, ranging from nonsense and juvenile humor to profanity and shameful personal attacks aimed at the principal and his family.
  16. 16. Layshock ex. rel. Layshock v. Hermitage School District High school student Justin Layshock posted a fake MySpace page parodying his high school principal, Eric Trosch. Layshock posted a picture of Trosch and answered the questions asked by the sites profile template by riffing on the word "big" because Trosch is apparently a large man. Answers included phrases like "big faggot”. To the question, "what did you do on your last birthday," Layshock answered "too drunk to remember." Layshock created the profile from a computer at his grandmothers home.
  17. 17. Recent Cyberbullying Cases In the twin Feb. 4, 2010, decisions, the 3rd Circuit ruled that the student suspension was proper only in the J.S. case. In the Layshock case, the court found that the school district could not establish “a sufficient nexus” between the student’s cyber speech and a substantial disruption of the school environment.
  18. 18. Judicial Outcomes The Court of Appeals in the J.S. case reversed the ruling in part, stating that the school district could not punish the student for use of profane language outside the school, during non-school hours. The Court of Appeals in the Layshock case stated that the students “entering” districts website to “take” districts photo of principal was not sufficient to forge nexus between school and profile and, The school district did not have authority to punish the student for expressive conduct outside of school that district considered lewd and offensive.
  19. 19. Recent Cyberbullying Stories Former Rutgers University student Dharun Ravi was found guilty of hate-crime charges and invasion of privacy for using a webcam to secretly record his college roommate, Tyler Clementi, who later committed suicide.  Throughout the trial, it was clear that the judge and jury were entering relatively new legal territory of cyber-bullying. The complicated legal definition of a hate crime made the verdict difficult to determine. The jury concluded that Ravi’s repeat behavior casted doubt on his innocence.  Ultimately, jurors found that Clementi “reasonably believed” he had been made a target because he was gay.  Ravi sentenced to 30 days.
  20. 20. Cyber-bullying or a Joke? The American Civil Liberties Union of Indiana filed a federal lawsuit on behalf of three Indiana girls, claiming the Griffith Public Schools district in northern Indiana violated the girls civil rights when it expelled them on the basis of a personal off- campus conversation that attorneys say shouldnt have been taken so seriously. The lawsuit filed in U.S. District Court in Hammond says that any reasonable person would have realized the 14-year-olds banter was in jest in part because of the use of emoticons such as smiley faces, humorous online shorthand such as LOL and ROFLMAO, and capital letters that represent sarcasm used while discussing killing another classmate. http://www.huffingtonpost.com/2012/06/14/facebook_n_1597 799.html
  21. 21. Other Cases of Interest J.S. v Bethlehem Area School District, 807 A.2d 803 (Pa. 2002) Emmett v Kent School District No. 415, 2000 U.S. Dist. LEXIS 4995 JC v Beverly Hills Unified School District, 711 F Supp 2d 1094 (CD Cal 2010)
  22. 22. Litigation for Cyber-bullying Get the facts from the child/teen. If it is one student against another, inform the school. If there is any danger to your child, inform the police. Change schools for your child if the bully stays in the school. Document harm to the child. Print out screen shots of the messages and posts.
  23. 23. Litigation for Cyber-bullying File a lawsuit in the small claims court to get the other parents’ attention and to tell the school you are serious. File a civil suit against the bully, the parents, the school district. Compensation for stress and anguish caused by the cyber-bullying; costs for any medical services and medication expenses as a result of the bullying; restraining order against the bully.
  24. 24. Litigation for Cyber-bullying Causes of actions beyond cyber-bullying:  Defamation  Stalking  Harassment  Intimidation  Invasion of Privacy  Intentional Infliction of Emotional Distress  Violation of Civil Rights with Bodily Injury  Hate Crime  Sexual Exploitation
  25. 25. Is it Cyber-bullying or Just Rudeness?Look at: 1. Kind of Threats 2. Frequency of Threat 3. Source of Threats 4. Nature of ThreatsThe more frequent, the more dangerous the methods in thethreat, more people involved, the more serious the threat is.Aftab, Esq.
  26. 26. Tips for Someone Being Bullied Tell a trusted adult about the bullying, and keep telling until the adult takes action. Don’t open or read messages by cyber bullies. Tell your school administrators if it is school related. Schools have a bullying solution in place. Don’t erase the messages - they may be needed to take action. Protect yourself - never agree to meet with the person or with anyone you meet online. If bullied through chat or instant messaging, the "bully" can often be blocked. If you are threatened with harm, inform the local police.http://www.in.gov/attorneygeneral/2629.htm
  27. 27. Sexting We define sexting as “the sending or receiving of sexually-explicit or sexually-suggestive images or video via a cell phone.” Most commonly, the term has been used to describe incidents where teenagers take nude or semi-nude (e.g., topless) pictures of themselves and distribute those pictures to others using their cell phones (although it is also possible to distribute such images via social networking sites, email, instant messaging programs, and video chat). http://www.cyberbullying.us/Sexting_Fact_Sheet.pdf
  28. 28. Sexting StatisticsThe percent of teenagers who have sent or posted nude or semi-nudepictures or video of themselves:  20% of teenagers overall  22% of teen girls  18% of teen boys  11% of young teen girls ages 13-16The percent of teenagers sending or posting sexually suggestivemessages:  39% of all teenagers  37% of teen girls  40% of teen boysThis is based on the National Campaign Survey, but Pew ResearchCenter puts this less at about @12-13% of all teens with no genderdifferences.
  29. 29. Sexting Cases – Jesse Logan The suicides of Jesse Logan and Hope Witsell forced adolescent sexting behaviors to the forefront of “national social conscience.”  Jesse Logan was an 18-year-old girl from Ohio whose ex- boyfriend circulated nude pictures of her to a large number of their high school peers, leading to extensive and unremitting verbal cruelty.  Two months later, she committed suicide after suffering scholastically and relationally as a result of the humiliation and abuse she received from classmates.  http://www.huffingtonpost.com/2009/12/07/jessica- logan-suicide-par_n_382825.html
  30. 30. Sexting Cases – Hope Witsell  Hope Witsell was 13 years of age when she sent a topless picture of herself to a boy she liked. The image quickly found its way onto the phones of other students.  Her journals indicated the vicious name-calling (e.g., “slut,” “whore”) she endured for weeks before it became too much for her to handle. She ended her life two weeks into her eighth grade year.  http://articles.cnn.com/2010-10- 07/living/hope.witsells.story_1_photo-new-school-year- scarves?_s=PM:LIVING
  31. 31. What Should be Done? Attorneys should inform educators that they should work with a police officer to collect any evidence and investigate the incident to determine its nature.  It should be made very clear that administrators and educators should never forward, copy, transmit, download, place on a USB thumb drive, or show any non-law enforcement personnel any evidence collected from a personal digital device, cell phone and/or computer after the initial discovery of sexual content, or at any other time during the investigation.
  32. 32. What Should Be Done? This may lead to felony criminal child pornography charges, even if actions were made in the best interests of the student(s) involved (Oei, 2009). To avoid legal liability in instances of sexting, it is highly recommended that school administrators only confiscate the devices, and let law enforcement search its contents and call logs. “The laws need to catch up to this technology so a girl sending a pic of herself to her boyfriend isn’t prosecuted and charged as a sex offender.” -School Resource Officer from Arizona
  33. 33. Legal ConsequenceIn some states, sexting is illegal and can constitute child pornography. Individuals possessing the images of minors face being put on the Sexual Offenders Registry for up to 20 years. Doesn’t matter how old they are, it matters how old the person in the photo is.
  34. 34. Education and Outreach “Look, kids do stupid things, impulsive things, all the time. We need to approach this problem logically.” - Lawmaker from New Jersey  Law and policies are a necessary, but not sufficient, component of a comprehensive prevention and response plan. We don’t want the presence of law and policy to take the place of purposed educational efforts to teach teens about the responsible use of technology. This sometimes happens when laws or policies are passed as a way of quickly “dealing” with an issue, without understanding its fundamental causes.
  35. 35. Education and Outreach Attorneys should inform schools and parents that they must implement creative educational strategies to raise awareness among students on the negative impacts of sending or receiving sexually-explicit images of themselves or someone else. Schools need effective school policies regarding this issue. The policy needs to be communicated to students, parents, teachers, and staff.
  36. 36. School Policy Components Specific definitions for harassment, intimidation, and bullying (including the electronic variants) Graduate consequences and remedial actions Procedures for reporting Procedures for investigating Specific language that if a student’s off-school speech or behavior results in “substantial disruption of the learning environment” the student can be disciplined Procedures for preventing cyber-bullying (workshops, staff training, curriculum development).
  37. 37. Resources NYSSCA Cyber Bullying & PEAS Program www.nyssca.org/.../Cyberbullying%20pp- New%20NYSSCA.pdf The Law’s Repsonse to Cyber Bullying http://www.nacdl.org/Champion.aspx?id=20618 Cyber Bullying Fact Sheet http://www.cyberbullying.us/cyberbullying_fact_shee t.pdf
  38. 38. Resources Anti-Bullying Network http://www.antibullying.net/ Cyber-bullying Research Center http://www.cyberbullying.us/ Government Stop Bullying Site http://www.stopbullying.gov/ It Gets Better Project http://www.itgetsbetter.org/
  39. 39. Resources National Parent-Teacher Association: Stop Bullying http://www.pta.org/bullying.asp?gclid=CPKkx- z6pKoCFYgW2godcXC7Wg Stomp Out Bullying http://www.stompoutbullying.org/ Stop Cyber-Bullying http://www.stopcyberbullying.org/
  40. 40. Resources: Videos Digital Nation Frontline – CBS (2010) http://www.pbs.org/wgbh/pages/frontline/digitalnation/ Growing Up Online Frontline: CBS (2009) http://www.pbs.org/wgbh/pages/frontline/kidsonline/ The “In Crowd” and Social Cruelty ABC News Special http://www.amazon.com/News-Specials-Crowd-Social- Cruelty/sim/B000IMVORS/2
  41. 41. Resources: Books Bullying Beyond the Schoolyard: Preventing & Responding to Cyberbullying, by Sameer Hinuja & Justin Patchin Confronting Cyberbulllying: What Schools Need to Know to Control Misconduct & Avoid Legal Consequences, by Shaheen Shariff, PhD Cyberbullying & Cyberthreats: Responding to the Challenge of Online Social Aggression, Threats & Distress, by Nancy Willard & Karn Steiner Girl Wars: 12 Strategies That Will End Female Bullying, by Cheryl Dellasega & Charisse Nixon
  42. 42. Resources: Books Odd Girl Out: The Hidden Culture of Aggression in Girls, by Rachel Simmons Queen Bees and Wannabes: Helping Your Daughter Survive Cliques, Gossip, Boyfriends and the New Realities of the Girl World, by Rosalind Wiseman Responding to Cyberbullying: An Action Tool for School Leaders, by Jill J. Myers, et al Teen Cyberbullying Investigated: Where do Your Rights End and Consequences Begin, by Thomas Jacobs, JD The Bully, The Bullied and The Bystander: From Pre-School to High School – How Parents and Teachers Can Help Break the Cycle, by Barbara Coloroso
  43. 43. Resources: Law2smLaw2sm Cyberbullying Corner:www.law2sm.comTo inquire about workshops forstudents, parents, school districts, and otherscontact:info@law2sm.com404-857-1331

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