How Protected Speech Places a Price Tag on the Lives of Our Youth

-- By NatalieYoukel - 10 Dec 2015

Introduction

The advent of the Internet brought with it extraordinary opportunities for individuals and/or groups of individuals to express opinions – good, bad, and ugly. On one hand the Internet has provided individuals worldwide with immediate access to an infinite amount of information not previously accessible. But the freedom afforded by the Internet, like most other services, is susceptible to abuse. Cyber bullies, racists, and terrorists, among others, have abused the Internet to target helpless victims with hateful speech or actions that invade personal privacy, ruin reputations, or spread discriminatory thoughts. These actions have occurred primarily as a result of social media platforms, such as chat rooms, blogging Web sites (Blogspot), video sites (YouTube), social networking sites (Facebook, MySpace, Twitter), and electronic bulletin boards or forums (Reddit).

Cyberbullying in the US

Asher Brown, Billy Lucas, Ryan Halligan, Megan Meier, Phoebe Prince, Seth Walsh, Tyler Clementi, and Rebecca Sedwick are only a few of the children who took their own lives as a result of cyberbullying. Cyberbullying generally refers to when another child or teenager in the form of threats, harassments, or humiliation intentionally and repeatedly targets a child or adolescent, through the use of Internet technologies.link text. Cyberbullying can take place twenty-four hours of the day, seven days of the week and can reach a child almost anywhere. Furthermore, such harassment can be posted anonymously, accessed by millions, distributed with a click of the mouse, and stored forever.

According to National Voices for Equality Education and Enlightenment during the past year 1 million children were harassed, threatened, or subjected to other forms of cyberbullying on Facebook.link text Furthermore, the Center for Disease Control and Prevention’s 2013 Youth Risk Behavior Surveillance Survey found that 15% of high school students in the US were electronically bullied in 2013.link text In addition, a United States Department of Education report found that approximately 19% of middle school administrators reported that they had to deal with cyberbullying daily or a least once per week.link text

The Fight Between Freedom of Expression and Saving Lives

Even though the number of cyberbullying cases continues to rise each year and an increasing number of children are choosing to take their own lives as a result of cyberthreats and harassment, little has been done to address the problem. This is due to the broad protection afforded to the citizens of the US by the First Amendment of the US Constitution.

Historically, and as noted by Justice Oliver Wendell Homes Jr. in Schenk v. United States, speech, oral or written, which creates a clear and present danger is not protected under the Constitution. This I believe was a noble idea, and one that very shortly after turned into a noble “ideal.”

Unfortunately, since the decision in Schenk the Supreme Court has refined the clear and present danger principle to exclude from protection of the First Amendment only speech/threats that incites “imminent lawless action.” This means that unless cyber speech crosses the line into incitement of imminent lawless action, which it rarely ever will, the speech no matter what its effects on children, receives protections under the First Amendment. This is based on the theory that such cyberthreats or harassment are not “imminent” by nature.

Furthermore, the Supreme Court has been silent on the issue of cyberbullying within the public school setting. Historically, the Supreme Court has established that a student's constitutional right to freedom of expression will give way to the school's interests in education, order, and discipline if the expression is substantially disruptive, plainly offensive, or perceived to be school sponsored expression. However, the Supreme Court has only addressed student speech that occurs within the school environment, and has not yet directly addressed the question of what protections the Constitution affords student speech that is generated from a student’s home computer while off school property.

Not only has the Supreme Court remained silent on the issue of cyberbullying it appears as if state courts and the state legislatures are at odds. For example, just recently the highest New York court struck down an Albany County law that criminalized cyberbullying, holding that the law was overbroad and trampled free speech rights of online bullies.

We Cannot Sit Back and Wait for More Children to be Harmed

Action can be taken on many levels to combat the harm stemming from cyberbullying. However, unless the Supreme Court sheds some light on the issue, individuals and local agencies/schools in fear of trampling individuals’ first amendment rights will do little to address the issue.

On a Micro level two things need to happen. First, social platforms should be disabled, as these platforms encourage cyberbullying. However, because this is not feasible and society would loose out on too much monetary gain, it is absolutely necessary that these social media platforms implement a sort of filter/block system that runs searches specifically directed at targeting cyberthreats. Second, the United States School systems need to take a stronger stance in writing school policies and procedures in a way that punishes and deters cyberbullying perpetrators both on school grounds and off.

On a Macro level the Supreme Court needs to take a stand on the issue. In my opinion the easiest way for the Supreme Court to approach the issue is to make cyberbullying an action not afforded protection by the First Amendment in public school settings. I believe that the Supreme Court should make the argument that cyberbullying harms a school’s interests in education, order, and discipline, as the act of cyberbullying is increasingly affecting more and more children each year and leads to a substantial disruption in both the school and sometimes, the community.

That being said, I do not think that the Supreme Court should stop there. In order to truly put a halt to cyberbullying and protect the youth of the US, the Court must create an exception to the First Amendment protections that narrowly defines cyberbullying and criminalizes its behavior. The Court should tailor the exception narrowly and perhaps draw upon Justice Oliver Wendell Homes Jr.’s original “clear and present danger” exception.

There are two primary places where this argument needs to deal with fundamental objections, which we can call the legal and the philosophical intersections.

First, this is law school, so when we write about law, we do so precisely. The Supreme Court is a court, which decides cases. Whatever criminal law you think it should be willing to uphold some legislature must make and somebody must then litigate to challenge on First Amendment grounds. If you want to discuss such possible phenomena, you must be far more precise in doing so than you are here.

Whatever you may write on that subject, the central claim will involve the Court, it appears, in some "exception" you think should be made, which actually means, I think, that you want the Court to find under the relevant standard, which is strict scrutiny, that there is a compelling government interest being achieved by the most narrowly tailored means. You are going, therefore, in some context, to argue that a compelling government interest, presumably preventing children from taunting one another, is achieved by the means least restrictive of speech if we criminalize taunting by children. Perhaps you can make out such an argument, though I think it is exceedingly unlikely. At any rate, you must try.

Which leads to the second class of objection. I see no moral case whatever, either in this essay or in any one I can speculate up, for applying criminal sanctions to the horrible things children say to one another. We apply criminal law sparingly to acts of children because we understand that full moral responsibility for the consequences of their actions is not an appropriate expectation. To criminalize behavior of children that is not criminal in adults is, it seems to me, an absolute moral wrong. Moreover, the moral causation argument advanced here seems to me very flimsy. To say that suicide or other acts of desperation by children are caused by other children's savage words is just as evidently wrong as to say that a child who is killed by tetanus died of a cut, or that a child who freezes to death in the street died of inadequate clothing. In all cases it is clear that the child died because of inadequate care. We are accustomed to having a society so unrobust in its methods of caring for people (including but not limited to children) that its most vulnerable people, including those who suffer from mental distress and illness, are susceptible to crises—including those that cause hospitalization, suicide, and harm to others—precipitated by stresses that a healthy society would help its vulnerable members to weather or avoid.

In the same way, then, that it vindicates a small morality at the expense of the larger social responsibilities we like to ignore to imprison the drug addict or criminalize dangerous forms of self-medication for conditions we do not accept our responsibility to treat in the poor, the idea of subjecting children to criminal punishment for behavior the slightest acquaintance with literature will show is simply the universal reality of human child nature reduces to invisibility the real requirement to provide good mental health treatment as well as tetanus vaccinations in a public health context that reaches every human child in our society.

Could one, from a constitutional perspective, claim that the "more speech" of good psychotherapy for distressed young people is somehow not a superior alternative to the "less speech" approaches of social media censorship and outright criminalization? Why is harm done by speech any less capable of being righted by more speech here than in the case of sedition, or religious or racial bigotry, or any of the other contexts in which we express our most important and distinctive social value by the tolerance we show to the most repellent error where reason is left free, as Jefferson said, to combat it?