We have been discussing the increasing disciplining of students and teachers for comments and photos on social media sites. Just yesterday in a story out of Indiana, we saw students expelled for comments viewed as bullying. Now, Georgia legislators are moving to make this controversial trend an actual law for schools to discipline students for mean comments on sites like Facebook. This comes at the same time that a lawsuit shows how the common law can serve as an adequate protection for victims, in my view.

Alexandria Boston, 14, has filed a lawsuit alleging libel and intentional infliction of emotional distress, against the families of two students who allegedly created a fake Facebook page using her name and posting a distorted photograph to make her look heavier. The site included allegedly false claims of sexual activity, drug use and racial bias. It is a perfectly legitimate lawsuit and serves as a deterrent against such alleged abuse. The need for such action is highlighted by the fact that Boston’s family claims that Facebook ignored repeated demands to take down the false site. In Facebook’s defense, such a demand requires some investigation to avoid third parties from forcing site off the Internet based on false claims.

Boston, known as “Alex,” is an eighth-grader at Palmer Middle School in Cobb County. There appears to be a strong case for defamation. Because I cannot locate a copy of the complaint, it is not clear whether the complaint includes a false light claim. While some states have eliminated false light in favor of a general defamation rule, it is allowed in Georgia.

In the meantime, legislators are moving to codify the effort of school legislators to regulate the speech of students outside of school — a trend that I have long criticized. I do not contest the right of the school to confront the student and the parents. However, expanding the authority of school officials over comments made after hours is a threat to free speech and a poor policy choice in my view. Yet, legislators have reintroduced House Bill 310, known as the “cyberbullying” bill. The state already has a cyberbullying law, but this law expands the authority of school officials. Rep. Carolyn Hugley, D-Columbus expresses the clearly admirable “goal has to be to make children safe in school.” However, there are already means to accomplish this worthy end. What Hugely is proposing is to give added power of monitoring to school officials who must determine what is deemed to be threatening or mean. We have seen how prohibitions in the schools have led to absurd “zero tolerance” policies (and here) where officials opt on the side of discipline and expulsions in every infraction no matter how small. Faced with objections from parents, school officials are more likely to demand the withdrawal of comments or the shutting down of the site rather than conduct any reasoned analysis or review. Moreover, such decisions are made in an administrative context, given less protection to students.

Hugely insists that this is a superior approach to the common law because “[w]e shouldn’t have to have students suing each other.” Yet, the common law affords a system that is designed to afford due process and constitutional rights. It also creates a strong incentive for parents to monitor their own children since they will have to pay the price of liability — as with any injury to a third party. Defamation on the Internet is no different from a physical attack or other form of liability. The culprit and his or her parents are ultimately liable.

It is the ultimate conflict between statutory and common law. Here, however, there is a fear over the chilling of free speech as school officials monitor the Internet for inappropriate or mean comments.

Do you see the need or wisdom in such a law?

Source: Daily Report as first seen on ABA Journal.