California Court Says Online Bullying Is Not Protected Free Speech

from the first-amendment? dept

Fri, Mar 19th 2010 12:00pm — Mike Masnick

There have been plenty of efforts to try to curb "cyberbullying," often through laws that try to make it illegal to be a jerk. Unfortunately, the concept of cyberbullying is so vague that this creates tremendous problems and unintended consequences. And, on the whole, it seemed unlikely that any such law could withstand First Amendment scrutiny. However, it appears that the First Amendment isn't always the First Amendment we thought it was.

A California appeals court has ruled that cyberbullying threats are not protected free speech. Now, you can understand why people might like this conceptually. No one likes a bully. But making it against the law to bully is incredibly risky, and almost certainly leads to a very different kind of bullying.

In this particular case, a kid set up a website about himself, and his fellow students posted comments mocking him. It was cruel, though you would think that the simple response would be to take down those comments. Instead, the family went to the police -- who said that the comments "did not meet the criteria for criminal prosecution and were protected speech." The family followed by suing six students and their parents for hate crimes, defamation and intentional infliction of emotional distress.

Now, there's no doubt at all that the comments were over the line and incredibly mean. However, it looks like there was a perfectly reasonable process outside of the courts to handle this. Apparently, the father of one kid who made some of the worst comments made his son apologize, grounded him and took away his internet access. It seems that wasn't enough. Those who were sued filed an anti-SLAPP motion under California's anti-SLAPP law (one of the strongest in the country), but the judges said that the text was not protected free speech and thus did not fall under the anti-SLAPP provisions. One of the kids, while admitting his own conduct was over the line, said he was just joking around, and trying to top others in responding to the website. The judges, clearly, did not find the joking to be funny. Indeed, it was not funny, but that doesn't mean you should lose your free speech rights.

One judge dissented and argued strongly that not only was this a mistake, but it would have serious First Amendment consequences:

I share with the majority the view that R.R.'s post, like many that preceded and followed it, was vulgar, nasty, offensive, and disgusting. But, as Justice Harlan wrote in Cohen v. California... although --the immediate consequence of [free speech rights] may often appear to be only verbal tumult, discord, and even offensive utterance[,] . . . [w]e cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values [of freedom of speech] are truly implicated.

In concluding that the post was not in connection with an issue of public interest, the majority fails to follow relevant precedent and ignores the substantial evidence that D.C. was a person in the public eye. The majority also creates a broad and groundless exception to the protections of the anti-SLAPP statute, holding that for purposes of the statute, jokes do not constitute communications in connection with issues of public interest.... That is not the law.

It also notes that while the "threats" in questions did seem incredibly distasteful, in context with all the other comments, it seems obvious that they were not real threats:

Reading the sequence of posts from beginning to end, no reasonable person would foresee that any of it would be taken as a serious threat of violence. No reasonable person would believe that (at least) four people were sincerely threatening to take D.C.'s life. Taken together, all of the posts amount to nothing but a lot of adolescent sex-obsessed hyperbolic derision, sarcasm, and repulsive foolishness

In fact, the judge notes that the kid who set up the website didn't seem bothered by the comments, and was apparently more traumatized by his father filing this lawsuit. Maybe the kid should sue his father?

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Filed Under: bullying, free speech

36 Comments

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Ima Fish (profile), 19 Mar 2010 @ 12:16pm

"The judges, clearly, did not find the joking to be funny."

What a fricken minute... there's a judge out there without a sense of humor?!
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Anonymous Coward, 19 Mar 2010 @ 12:37pm

The Law
The majority also creates a broad and groundless exception to the protections of the anti-SLAPP statute, holding that for purposes of the statute, jokes do not constitute communications in connection with issues of public interest.... That is not the law.

It is now.
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foobar, 19 Mar 2010 @ 12:45pm

Not an issue of free speech
This was taking place on someone else's private property. If they'd set up their own sites to say their peace you might have a point, but they weren't.
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Dark Helmet (profile), 19 Mar 2010 @ 12:51pm

Re:
How does one take up the mantle of an officer of the court in our legal system w/o a sense of humor? How do you participate in a joke w/o the ability to find it funny?
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ChadBroChill (profile), 19 Mar 2010 @ 12:53pm

Re: Not an issue of free speech
First off, piece be with you.

Also, this was not private property. This is the internet. The site obviously had some sort of comment system that made it a function of the site to post your thoughts. By your logic, you are trespassing on Mike's private property by posting your comment.
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Anonymous Coward, 19 Mar 2010 @ 12:54pm

RE: Not an issue of Free speech
so Mike can hold all the people who call him evil things liable? i didnt realize the comments section was private property for pretty agreeable language..
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Paul Alan Levy (profile), 19 Mar 2010 @ 12:58pm

Why the decision is troubling -- in both directions
The particularly troubling aspect of this decision is that the court, instead of recognizing that the issue was one within the scope of the anti-SLAPP statute, and then deciding whether the plaintiff could show a probability of success, decided that the speech was so nasty as to bar the application of the SLAPP statute's analysis at all. This approach could have serious repercussions for other defendants who are trying to invoke the anti-SLAPP statute, because the burden of persuasion is on the defendant on the issue of whether SLAPP analysis applies; once the statute applies, the burden is on the person trying to sue over speech to show a probability of success on the merits.

Also, I worry that your account of the case somewhat understates the strength of the student's claim. The student was suing over very explicit threats posted on his site― "Hey [D.C.], I want to rip out your fucking heart and feed it to you. I heard your song while driving my kid to school and from that moment on I‘ve . . . wanted to kill you. If I ever see you I‘m . . . going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you burn in hell.", Another comment was “Faggot, I’m going to kill you.” The majority opinion contains an extended discussion of whether this is a true threat that is unprotected by the First Amendment.

The problem is, this analysis is supposed to take place in the "probability of success" analysis, not in the "scope of the SLAPP statute" analysis. It is a good example of bad facts making bad law.

The decision is here:
http://www.courtinfo.ca.gov/opinions/documents/B207869.PDF
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crade (profile), 19 Mar 2010 @ 1:21pm

I don't get it. Isn't it already harrassment to do that sort of thing? I didn't think free speach covered harassment of particular individuals anyway.
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Anonymous Coward, 19 Mar 2010 @ 1:56pm

There is a danger in categorizing explicit threats of violence as harmless whenever it is surrounded by a "joking" context.

Violent threats are not funny - they are violent threats. Calling them "jokes" is just trying to put a socially acceptable mask over the malicious intent that prompted the threats.

There are plenty of ways to be funny, and even to tease or bully, without explicitly threatening physical harm. This is dangerous harassment that deserves no legal protection. The commentors need counseling. Left unchecked, will we continue defending them when they walk in to school one day with a knife or gun, or actually do take physical action against D.C.?
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Ryan, 19 Mar 2010 @ 2:31pm

Re:
Violent threats are not funny - they are violent threats. Calling them "jokes" is just trying to put a socially acceptable mask over the malicious intent that prompted the threats.

Except, of course, for the inconvenient fact that if they are "jokes" then they are not "violent threats" with "malicious intent".

Left unchecked, will we continue defending them when they walk in to school one day with a knife or gun, or actually do take physical action against D.C.?

Nice. Bring in a completely unrelated scenario for association to direct the discussion away from the situation at hand. If we continue to allow you to post bullshit on message boards unchecked, what's next? Do we have to allow you to rape a bunch of 10 year-olds?
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Nastybutler77 (profile), 19 Mar 2010 @ 2:34pm

Mr. Popularity
Nothing helps you make friends and influence people at school better than having your parents sue a bunch of your classmates and their parents.
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Anonymous Coward, 19 Mar 2010 @ 3:12pm

@Ryan
Straw men aside, when given the choice between saying "lol you suck" and "I'm going to pound your head in with an ice pick", do we not have an ethical responsibility to give guidance to the person who chooses the latter means of expression instead of condoning it?
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DCX2, 19 Mar 2010 @ 3:14pm

Threats should not be protected speech
Even in jest. This wasn't a "I'm going to kill you for sucking so bad" kind of boiler-plate release of angst, this was a very specific "I'm going to stab you in the head with an ice pick" threat. If the one kid had actually been stabbed with an ice pick, everyone would be talking about how stupid it was to ignore the other kid's threats.

BTW, Mike, you should have noted the comment about the ice pick, and how the kid who said it claimed he is Buddhist. I bet the judges couldn't even keep a straight face.
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Marcus Carab (profile), 19 Mar 2010 @ 3:27pm

Re: Re:
The courts aren't themselves a joke - human nature is the joke, and the courts are just another of its well-meaning punch lines :)
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Marcus Carab (profile), 19 Mar 2010 @ 3:28pm

Re: Not an issue of free speech
Welcome to the internet. It doesn't work like that.
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Anonymous Coward, 19 Mar 2010 @ 4:06pm

Re:
Only if we have an ethical responsibility to train people in realizing the difference between hyperbole and serious threats.
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Anonymous Coward, 19 Mar 2010 @ 4:53pm

@#16

Perhaps we have an ethical responsibility to train people in clearly distinguishing when they are being hyperbolous versus when they are making a serious threat.

It's the reason toy guns are painted bright colors -- so that cops won't kill kids who are just playing.

"You suck" is a hyperbole. "I'm going to pound your head in with an ice pick" is a threat.
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Sergio, 19 Mar 2010 @ 5:53pm

This didn't have to go to court
Wasn't it enough that D.C's parents showed the other kid's parents the site and said "Look what your kid said on my kid's site?" Based on the posts, it does seem pretty obvious that the intention wasn't to cause harm, they were using the site as a medium to come up with more and more vile and disgusting things to say. Who hasn't seen this happen in high school?

So now because we have new forms of communication eveything has to be a lawsuit and everything is a very real threat that will be acted on?
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DanVan (profile), 19 Mar 2010 @ 7:36pm

Anything that makes more people responsible for what they say online is a good thing.

I am tired of people spewing nasty, hateful messages online w/o any sort of responsibility.

It's pathetic and attaching a name to the comments would see a massive decrease in online hate speech
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Anonymous Coward, 20 Mar 2010 @ 3:24am

Um wow. That was so far over the line it's not even funny. No seriously. Those sounded like serious death threats. I'm usually in agreement with stuff on here, but not this time. I used to be police in California, and I'd have taken action on this one.
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Dementia (profile), 20 Mar 2010 @ 1:25pm

Re:
How about something to make people more responsible for what they say period?? Would that go over well with any particular segment of the population, like maybe politicians?
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DanVan = Pussy, 21 Mar 2010 @ 5:01am

Re:
Wow, grow a pair you complete and utter pussy.
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known coward, 22 Mar 2010 @ 10:46am

This is the reason I do not like hate crime legislation
In california you have no right to hate and threaten violence against a legislatively defined minority class. In this case "faggots" are a protected class, and as such can not be threatened with an "ice pick to the head".

Whether the boy is gay or not, whether the comment was meant as a joke or not, the comments are, as designated by the state of California a “hate crime”. Where the comments are made does not matter. According to the law, they have to be prosecuted.

Stop whining about the onlinedness of the comments. If you do not like the law change it. Good luck with that in california.
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Rachel, 23 Mar 2010 @ 3:10pm

shame on you
"Mike Masnick of Techdirt disagrees with the suit:

Now, there's no doubt at all that the comments were over the line and incredibly mean. However, it looks like there was a perfectly reasonable process outside of the courts to handle this. Apparently, the father of one kid who made some of the worst comments made his son apologize, grounded him and took away his internet access."

Really mike? Is making threats to STAB someone in the head a small enough threat to take away his internet access??? Are you kidding me????? You say the comments were "incredibly mean", but they were more than that, they were threats to bodily injury. Grave bodily injury. You should be ashamed of yourself and I promise you, I have sent this article on to as many people as I can, so you can bet you've LOST followers.
Shame shame.. your mama outta spank your butt for being so ignorant.
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Anonymous Coward, 23 Mar 2010 @ 11:37pm

The victims did the right thing. It was a hate crime and a defamation of character. Parents need to realize and teach their children //they// are legally responsible for what their kids do. If parents are irresponsible in enforcing limits on their own kids then they should pay the price. Threatening someone's life, even if an idle threat, needs to be severely punished. When these delinquents are adults, we already see the fruits of irresponsible parents. They can and do become full-fledged criminals, heck, just look at Columbine and other examples of school massacres. If it needs to go to the Supreme Court to be upheld than so be it!
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Anonymous Coward, 23 Mar 2010 @ 11:41pm

TechDirt is lame, they call me an "Anonymous Coward" simply because I didn't sign up as a poster? I bet they'll remove this and my preceding post which while it's their right to do so only shows how closed-minded and ignorant they are calling someone a "coward" when they don't even know me. I will stop reading Tech dirt as of now and it's obviously simply dirt.
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Mike Masnick (profile), 24 Mar 2010 @ 12:42am

Re:
TechDirt is lame, they call me an "Anonymous Coward" simply because I didn't sign up as a poster?

Like many early tech blogs, we give anyone who doesn't give a name the tag "anonymous coward." It's a joke.

I bet they'll remove this and my preceding post which while it's their right to do so only shows how closed-minded and ignorant they are calling someone a "coward" when they don't even know me.

Chill out. We don't remove posts, unless they're spam.

I will stop reading Tech dirt as of now and it's obviously simply dirt.

Obviously.
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Christopher (profile), 24 Mar 2010 @ 7:23am

Re: shame on you
I have a problem with that assessment of Mike's as well, but not enough to stop reading Techdirt.

If someone expressed a desire to stab my son in the head with an icepick, at the very least I'd like that person to spend a night in jail. It's a criminal act, and when it isn't treated as such, it forces me to seek alternative recourse. Suing is the only legal avenue left to me.

Saying "you suck" is different than "when we meet I will stab your head".

--#
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mike is a tool, 24 Mar 2010 @ 1:40pm

Re: Re:
Mike is a complete tool. The only reason that he takes this point of view is to get flames so he can pretend to have an audience.
When he has a flame that says someone is going to stab him in the head, he changes his phone number, and get extra locks on the doors, but when it happens to someone else, it is just fodder to get free advertising with his petty, pitty comments. In the unlikely, yet realistic event when threats like this are carried through to fruition by unstable people, people that have Mike's narrow-minded and sad point of view claim that "he didin'tmean it like that" and see how fast they can backpedal. Perhaps you are the true coward, but most certainly a tool. If you have children, please post their info so we can threaten them, since it really isint a big deal to you
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Sheri, 9 Apr 2010 @ 8:56am

comment on bullying
I think i'ts wrong to bully some one.And that some one did'nt
do anything wrong.like if the kid was wearing clothes that
the other kid dosn't have it's not right to make fun.I'm
mad and fed up with the scholl system not doing anything
about.I think it should be talked about more further.I
think that all school systems should talk about this at pta
meetings.Expelling the kids who bully is not going to do anything,bullying is just going to continue.lives have been lost
and nothing is being done. What the hell is wrong with the
school that the 15 year old boy killed him self because of kids bullying him.Something could have prevented here.Like talking to him and going further from the begining.to the point where when the first started.Why didn't the school
adminerster's office say anything about.you wanna know why it's because they got something to hide. And they think it's okay and it's not, kids think that they can do what ever they want and get away with it. i'm gonna make bill.and that bill is no bullying in school or you will go to jail.yeah i said it jail.Because it can drive aperson to commit suicide
like it has even at the same school how screwed up is that school should be looked ito much further.I'm sick to my stomach whaen i hear that a kid killed there selfs because some one bullied them.I'M GONNA HAVE THIS STOPPED IF YOU DON'T STOP IT YOU FUCKING KIDS I'LL HAVE IT STOPPED!!!!TEENS THINK THERE KNOW IT ALLS THEY SAY THING TO MAKE THEM SELFS FEEL BETTER.TEENS THINK THAT THEY CAN HAVE SEX DO DRUGS AND HAVE BABY'S THERE KIDS NOT ADULTS ACT YOUR AGE NOT YOUR SHOE SIZE.Ther is no such thing as being popular i don't give a fuck what you say it's all in your head.bullying is kiddy shit grow the fuck up actually they think there grownups.this is going to stop right now.i think the teachers and principals need to go to jail for the students how killed them selfs because of bullys.How come know one is doing anything about what worng with the world. i think it's the parents fault to. Of course they don't do anything.
every one thinks it's okay it's not.Am i the only person that thinks it's not okay?
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Joe, 13 Apr 2010 @ 11:49am

Re: Re:
Seriously If we keep defending them now when they are not doing much but threatening, what will happen if they actually do kill someone or even a tempt to kill someone? Have you ever thought about that?
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Sensei J. Richard Kirkham B.Sc., 15 Jun 2010 @ 11:32am

Cyberbullying
I'm not in support of bullying in anyway shape or form, but comments on blogs can be moderated and there's a reason for this moderation.

The kids were wrong to flame, but this may have been an overreaction to the pendulum on bullying swing this far

Rick
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Sensei J. Richard Kirkham B.Sc., 16 Jun 2010 @ 4:03pm

Re: comment on bullying
While I appreciate your obvious emotional involvement in this, you miss another problem finally coming to light. That problem being workplace bullying. This could be grown up school bullies, but physically at least adults none the less.

Rick
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Life Fitness Treadmill, 3 Dec 2010 @ 5:26am

Bullying
Freedom of speech is a much abused alibi used by most people. They tend to forget that words can have more lasting negative effect, much more than a bullet scar. It has no physical manifestations, but the mental aberration is there and the subject suffers the consequence throughout his life. Life Fitness Treadmill
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Joeseph, 23 Jan 2011 @ 1:21pm

Re:
Your comment offends me. I find that it spews a nasty, hateful response without any sort of responsibility on how I am going to be offended by it. Your hate speech should have some sort of law to prohibit you from posting such things. I hope you are arrested and taken to jail. Or worse, I hope that someone find out who you are and sues you.

Have a nice day.
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adam, 13 May 2011 @ 5:10pm

freedom of speech
this is all a bunch of b.s (bull shit)it shouldnt have went to court free speech is free speech say what u want wen u want!!!verbal bulling being against the law to me is like putting chains on my soul and calling me the goverments slave!!!!!!!!!!!!!!
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