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.
Kids will be taught by this that they are chumps for putting their identity on Facebook. Adults sometimes learn from children about things like computers.
Yep….. I’d expect as much…
OS,
Depending on how you impune them, depends if you get a visit from the all encompassing HSA……. Truth for them is not a defense……
I don’t use Facebook, but have been thinking about registering so I can write really mean stuff about certain legislators and school administrators. Can I expect a knock on the door from an irate Principal who will put me in detention hall?
No, there is neither need nor wisdom in such a law. “Mean” comments? What does that even mean?
The internet is full of comments, some mean, some meaningless. Bullying occurs not just in school or on social media sites, but in life. Period. Without any science to back me up, the bullying-incident mean for a lifetime will be over fifty. With zero incidents, if you are never born, and a million incidents if you never die.
Bullies existed before the internet. Now with the internet, a nasty, snarky comment can exist ad infinitum. That sucks and I, that is we, don’t like it. But, enacting a law to prohibit and punish this conduct is not the answer. I do not have the answer. Indeed, nobody has the answer and that’s why I suggest there is problem with this law–nobody can clearly define in a law what a mean comment even means. As Justice Harlan said famously, “One man’s vulgarity is another’s lyric,” whether a comment is “mean” depends on the individual. And for this individual, any law without need or wisdom is just plain MEAN.
One step for man….. Three leaps for the government….. AN……
lottakatz,
Back in the eighth grade (1960-61), I read a science fiction story about a man who traveled to the future and then returned to the present where someone asked him to describe what he had found. Said he:
“They only have two laws. First, you must not annoy other people. Second, you must not allow other people to annoy you too easily.”
The moral of the story: “It’s amazing how much freedom you can allow people when you know they won’t abuse it.”
Later in life, when raising my own two sons, I put an early stop to the “He [did such and such] to me, dad” business. I punished both of them. When they complained of the injustice of my punishing the one who didn’t do anything wrong, I would reply. “Well, one of you did something to the other one. So I punished that person. The other one of you ratted out your own brother to score a little temporary advantage for yourself. So, I punished that person as well. So I know I punished the right person for the right crime.” Thereafter, on the rare occurrence when they would come to me with a complaint about the other one’s alleged perfidy, I would inquire: “Do you really want to involve me in this, or would you rather settle things by yourselves?” Thinking things over, they would invariably decide to work things out themselves. As a single father, I didn’t have a lot of extra time to waste on trivial matters, and I think my sons ultimately understood and respected this.
As the Buddha said, condensing the two futuristic science fiction laws into one: “You can’t give offense to anyone unwilling to take>/i> it.”
“… the common law affords a system that is designed to afford due process and constitutional rights.” — Jonathan Turley
“In childhood the earliest questions asked concerning the origins of things betray the spontaneous assumption that somebody made them.” — Joseph Campbell, The Masks of God: Primitive Mythology.
“Never use the passive where you can use the active.” — George Orwell, “Politics and the English Language.”
Leaving aside the redundant usage of “affords” as just a simple oversight, Professor Turley’s sentence still suffers from a spontaneous animism and unfortunate grammatical construction that makes nonsense of his intent. So, I must ask::
(1) Who designed the common law? What happened to the prepositional phrase “by [someone or something]” that would have made this clear?
From my admittedly limited legal understanding, the common law has evolved over a very long period of time through the slow accretion of practical, customary experience with legal disputation. A “designed” common law sounds to me like a “designed” common sense or a “designed” universe.
(2) I understand that the common law antedates the Constitution by centuries, at least, so it could not possibly have set out “by design” to afford constitutional rights to anyone.
(3) In what sense can one call the common law a “system”? If “common sense” means “a consensus of widely-held ignorance,” does not “common law” mean “an amorphous agglutination of inherited inconclusiveness”?
(4) Bad metaphysics and bad grammar aside, in the Era of Eric Holder (and I assume his successors as Attorney General), we can no longer use quaint noun phrases like “due process” and “constitutional rights” if the President and his minions determine that we cannot. Of course, in trivial or salacious cases that offer us proles entertaining distraction from vital concerns that do not involve our consent, participation by the judiciary and accused persons with counsel may take place not only in full public view, but in the glaring headlights of media sensationalism. More importantly, though, where it really counts we must now employ the verb-object construction “do process,” as in “The Executive may do some “secret stuff” and that constitutes a process, the only one American citizens or sub-human foreigners have coming to them should the President and his subalterns feel at all magnanimous on any given day.” The judiciary, for its part, can awake and look busy with the inconsequential just so long as it goes on nodding dumbly while feeding at the corporate trough should any matter of true national importance arise. Any secret stuff done by the Executive to unidentified persons anywhere on earth seems all right by the judges. But by all means, let the courts and school administrators not allow the children make mean with each other on Facebook.
Somebody sure made a legal and political mess out of something, but unless we clearly identify these human culprits as the subject of active-voice sentences, they will remain as unaccountable and irresponsible as leprechauns, unicorns, tooth fairies, gawds, demons, and other spontaneous suppositions of childhood animism — hidden safely away from human self-awareness in the incomplete passive voice where, once upon a time, “mistakes were made.”
I recall a scene from an old TV show I saw when the better half and I were looking to buy a house. A sub-plot dealt with a man with the delusion that he was from the future. A cop asks him if he wants a lawyer and the man replies to the effect ‘how quaint, lawyers’. The cop asks him what they have in the future if not lawyers and the man replies ‘Realtors, they’re the only ones that really understand all that fine print anyway’.
It seems to me that this proposed law is a way for the state to enlist the school system (or tolerate the school system) becoming an enforcement arm of the state regarding ipossible nfractions of law that may be actionable by the state in a criminal capacity or actionable as a civil manner. It is a way to load on penalties and make a non-law enforcement/judicial body responsible for penalizing persons without due process.
As well, the state is constructing a new category of sanction-able infractions which may not be actionable in a court, either civil or criminal, and turning over the responsibility of identifying and punishing transgressors to schools. This is akin to culture police.
I recall reading that in the early days of the auto industry Ford had teams of morals assessors, a male and female, that would show up at their workers homes unannounced and uninvited to do moral assessments of the workers. They would assess the cleanliness of the house, whether or not alcohol was present, whether or not the kids were well behaved, if there was a bible in view. If the worker failed the test the worker would be fired.
Using schools to enforce cultural norms are the Ford morals committees writ large, and the roving teams of Mullahs, policing appropriate public behavior in Egypt or Saudi Arabia, writ way too close for my liking.
Will lawyers and judges and police be replaced by school principals, teachers, and school boards to spot, investigate and enforce on the young, an ever burgeoning list of cultural norms? Give it time, we’ll see.
Our legislators think that there job is to write new laws. So they just keep writing and writing. I would like to see a good wave of condensing the code of law, perhaps down to 5000 pages for the entire federal code of law. As things stand now, no one has a REAL understanding of our code of law. A single bill contains so much language that it would require a year’s work just to truly comprehend that one bill. Perhaps this is why legal precedent is so important, it gives some comprehensible shape to the ridiculous bloat of text that is supposed to pass for our code of law. A good way to start down this road would be a simplified version of the “Read the Bills Act”. Any law that comes up for vote would have to be read in it’s entirety and only members that attended (both physically and mentally) the full reading would be eligible to vote.
The Georgia Bill will force students to revert to writing on the shithouse walls all of their complaints and observations of each other. What we need is a law to reign in schools from talking out of class or regulating conduct outside of class. There must be a way for kids to fight back at them. They need to launch their own anonymous website and throw rocks at anyone that they care to. Call it schoolschmucks.org
anon nurse,
scary bill from the House! It fits in niceley with this ridiculous bill from Georgia. The Freedom of Speech is not limited to adults in adult situations. If the School has the ability to discipline for non school speech or activities, are they not usurping the parental role as well?
http://www.aclu.org/blog/technology-and-liberty-national-security/house-representatives-passes-privacy-busting-cispa
House of Representatives Passes Privacy-Busting CISPA
Posted by Ateqah Khaki, ACLU at 6:33pm
“The House of Representatives just passed the Cyber Intelligence Sharing and Protection Act (CISPA), a dangerously overbroad bill that would allow companies to share our private and sensitive information with the government without a warrant and without proper oversight. CISPA gives companies the authority to share that information with the National Security Agency or other elements of the Department of Defense, who could keep it forever. The Obama administration issued a veto threat on CISPA earlier this week.
In a statement that we issued just after the House vote, ACLU legislative counsel Michelle Richardson stated, “CISPA goes too far for little reason. Cybersecurity does not have to mean abdication of Americans’ online privacy. As we’ve seen repeatedly, once the government gets expansive national security authorities, there’s no going back. We encourage the Senate to let this horrible bill fade into obscurity.”
We’ll have more tomorrow about the vote and common sense steps that that Congress should take into account as the cybersecurity debate continues; stay tuned.”
“CISPA cat”
https://www.aclu.org/files/imagecache/blog_feature_500/blog_images/blog_cispacat_0.jpg
No.
Policing the police state…..
I would have thought whatever I, as a student, did outside of school and school activities, is none of their business. That should be what parents (or guardians) are for.
Students should limit the viewing of their site to “friends” and family and leave the school officials “unfriended”.
“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?”
Good question, so lets consider:
(Security: Familyland, Fatherland, or Homeland?). As a general rule, the family needs to be included in these matters first and foremost.
Giving up on the family realm, sacrificing it to secular government, in terms of a city, county, state, or federal government system is not needed or wise in the general sense.
It will not work as well and will degenerate over time.
That said, school officials should be limited to informing parents first, then and only then, if the maladjusted behavior continues, call the parents and the child in for a chat.
It takes a village to raise a child, however, no village is going to be around long if it does not have parental dynamics playing a fundamental role.
It would seem that with written and recorded social media it would be easier to prove guilt or innocense, since it’s there for evidence. Do more laws really have to be written? and at what point will we ever have enough laws?
So what happens when a home schooled child says something verboten online? What about high school seniors that are over 18?