School Suspends 10 Students For Commenting On Image That Appears To Show Principal Choking Student

from the got-that-backwards dept

Way back in 2005, we wrote a story about a ridiculous situation in which a group of students were suspended after filming an angry teacher go on a bit of a tirade, screaming at students and yanking the chair out from under one of them. Rather than discipline the teacher, the school suspended the students. This was way back before it was that common for everyone to have phones with cameras in them (back when people still called them "cameraphones" and mocked them) and before social media made it so easy to widely distribute such images and videos. You'd think, given nearly a decade of time to get used to the concept that we wouldn't see a similar story pop up... but that's not the case apparently. 10 students in California have been suspended from their high school for posting, sharing or commenting on an image that appears to be their principal putting a student into a choke hold: There is some dispute about what's happening in the photo. The principal, Todd Whitmire, claims that the girl was involved in a fight, and he had separated her from others, "and she began struggling and I was pushing her away to get her away from the area and she fell down." The girl, Ashley Johnson, a 9th-grader at the school, disputes this, is wearing a neck brace and claims that Whitemore injured her neck. Either version of the events may be plausible, but no matter what the truth is, it's ridiculous to suspend students for posting, sharing or commenting on the photo. Yet that's what the school did. Whitmire claims that the original posting of the image wasn't the problem, but "keeping it alive" or making "negative comments" somehow constitutes "cyberbullying."

Principal Todd Whitmire said it wasn't the posting of the photo that got the suspended students in trouble but rather the comments that were added to the photo, which he said amounts to cyberbullying through a social network. The two students who fought were also suspended earlier this week for their actions as called for under the state education code.

"It was the reposting, the retweeting, and keeping it alive and assigning negative comments to it and creating a hostile environment" for the girl, he said Wednesday of the posts that followed Friday's on-campus fight.

This is shameful. It seems abundantly clear that the school is trying to stifle free expression and free speech -- and they flat out admit that fact, but hide behind the claim that it's "cyberbullying." Cyberbullying of who? The principal? Really? If you're going to be an administrator in a public high school, you need to have a slightly thicker skin than to suspend students for saying some mean things about a photo of you.

Filed Under: choking, cyberbullying, free speech, schools, suspended, todd whitmire

The Exaggeration Of The Cyberbullying Problem Is Harming Anti-Bullying Efforts

from the suffering-from-threat-inflation dept

Cyberbullying continues to be the topic du jour, especially for school administrators and legislators, both of which feel something needs to be done, even if they both have nothing in the form of hard data showing the threat matches the perception.

The result is bad policies and worse laws aimed at fighting an exaggerated problem. How exaggerated is it? Well, that depends on who you ask. As Larry Magid at HuffPo points out, the numbers tend to rise if there's a product or service in play.

I got a call recently from a woman who works for a company that makes an app designed to "keep kids safe" by enabling parents to monitor their texts and social media activities. The pitch included some dire statistics such as "70 percent of kids are cyberbullied" and -- like other companies that make parental-control software -- I was also told that it helps protect kids from strangers who would do them harm.

Actual studies point to much lower numbers, although there's no solid consensus.

The National Center for Educational Statistics reports that 6 percent of students in grades 6-12 experienced cyberbullying. The Centers for Disease Control found in 2011 that 16.2 percent of students had been bullied via email, chat rooms, instant messaging, websites or texting -- compared to 20.1 percent who had been bullied on school property (traditional bullying) -- during the 12 months prior to the survey. The Cyberbullying Research Center reports that "on average, about 24 percent of the students who have been a part of our last six studies have said they have been the victim of cyberbullying at some point in their lifetime."

Dan Olweus, who the editor of the European Journal of Development Psychology referred to as the "father of bullying research" wrote a 2012 article for that journal where he said that "claims about cyberbullying made in the media and elsewhere are greatly exaggerated and have little empirical scientific support." Based on a three-year survey of more than 440,000 U.S. children (between 3rd and 12th grade), 4.5 percent of kids had been cyberbullied compared to 17.6 percent from that same sample who had experienced traditional bullying. An even more interesting statistic from that study is that only 2.8 percent of kids had bullied others.

Because cyberbullying isn't precisely defined, variations are to be expected. But even the most expansive definitions fail to return the scary numbers quoted by those pushing software, policies and legislation.

i-Safe, "the leader in Internet safety education," compiled these cyberbullying numbers back in 2004 (and hasn't updated them in nearly a decade).

42% of kids have been bullied while online. 1 in 4 have had it happen more than once.
35% of kids have been threatened online. Nearly 1 in 5 have had it happen more than once.
21% of kids have received mean or threatening e-mail or other messages.
58% of kids admit someone has said mean or hurtful things to them online. More than 4 out of 10 say it has happened more than once.
53% of kids admit having said something mean or hurtful to another person online. More than 1 in 3 have done it more than once.
58% have not told their parents or an adult about something mean or hurtful that happened to them online.

The most surprising thing about these numbers is that the "mean or hurtful" stat isn't closer to 100%. Kids, due to their inherent lack of a developed world view, say "mean or hurtful" things all the time. Trying to portray this as "evidence" of widespread bullying is disingenuous. i-Safe may be a non-profit, but it still sells subscriptions to instructional software through its website. i-Safe has a vested interest in portraying bullying as worse than it actually is.

safetyNETkids, which also sells videos and curriculum, has this stat (among others) on its website:

Around half of teens have been the victims of cyber bullying

This startling "fact" is quoted all over the internet and is supposedly pulled from a Hartford County Examiner article. Unfortunately, that stat shows up nowhere in the referenced article and the study itself was performed not by the Examiner, but by the National Crime Prevention Council, home of McGruff the Crime Dog. The actual "stat" quoted by the Examiner says simply, "over 40% of all teenagers with Internet access have reported being bullied online." At some point, someone decided "over 40%" meant "around half," which sounds much more epidemic.

The actual number contained in the NCPC's report is 43%, closer to 40% than "almost half." How did this study manage to come up with a higher percentage than the others Magid quotes? By applying some very loose definitions, much like i-Safe above.

Most commonly, bullying is thought of as a pervasive, consistent activity, not a one-time event. Dan Olweus, "father of bullying research," defines bullying as "aggressive behavior that is intentional and that invoices an imbalance of power. Most often, it is repeated over time." Recent studies like those performed by the NCPC and deployed by i-Safe have upped the number of incidents by weakening the term. While someone might feel "bullied" by a one-off interaction, defining every singular experience as "bullying" dilutes the meaning, leading to the punishment of non-bullies and diverting resources from dealing with real problems.

There are a lot of reasons why exaggerating is bad. For one thing, it causes parents to worry unnecessarily. Of course parents are concerned about their kids use of online technology but focusing on the technology -- instead of the child's social emotional state -- is likely to divert their attention from real issues. And, as Olweus pointed out in this paper, "It may also create feelings of powerlessness and helplessness in the face of the presumably 'huge' and ubiquitous cyberbullying problem.. [and] that fixating on cyberbullying could encourage "an unfortunate shift in the focus of anti-bullying work if digital bullying is seen as the key bullying problem in the schools."

Some research exists indicating that the expansion of anti-bullying policies is making things worse.

University of Texas at Arlington criminologist Seokjin Jeong analyzed data collected from 7,000 students from all 50 states.

He thought the results would be predictable and would show that anti-bullying programs curb bullying. Instead — he found the opposite.

Jeong said it was, “A very disappointing and a very surprising thing. Our anti-bullying programs, either intervention or prevention does not work.”

The study concluded that students at schools with anti-bullying programs might actually be more likely to become a victim of bullying. It also found that students at schools with no bullying programs were less likely to become victims.

The results were stunning for Jeong. “Usually people expect an anti-bullying program to have some impact — some positive impact.”

i-Safe says 42% have been bullied online, but only 25% have had it happen "more than once." 58% have had something "mean or hurtful" said to them, but only 40% have seen repeat occurrences. There's a huge gap between these single events and pervasive behavior and that gap is being exploited.

The detailed methodology from the Harris Poll powering the NCPC's bullying numbers is no longer posted at its site, but the four-page summary uses the following to define "bullying."

- Someone pretending to be someone else in order to trick them online, getting them to reveal personal information.
- Someone lying about someone online.
- Pretending to be them while communicating with someone else.
- Posting unflattering pictures of them online, without permission.

Between the weak definitions and the inclusion of one-time events, NCPC has watered down "bullying" to define actions that, while temporarily unpleasant and/or embarrassing, are hardly evidence of "aggressive behavior repeated over time."

This isn't to say that cyberbullying doesn't exist and isn't a problem. This is simply to point out that the more worrisome the numbers presented, the more likely there's a narrative or product being pushed that benefits those doing the pushing. The downside, as noted by Olweus above, is that real problems are being ignored while legislators and school administrators chase down incidents common to any group of people interacting with each other, especially children and teens.

Filed Under: cyberbullying, exaggeration

Maryland Tops Off Awful Cyberbullying Law With Direct Line To Facebook To Remove Content 'Without Societal Value'

from the administrators-seek-to-control-off-campus-life-as-well dept

We saw Nova Scotia deliver the worst in cyberbullying laws (Canadian edition) earlier this year. Like most bad cyberbullying legislation, this one was prompted by the suicide of a teen. It's too tempting for legislators to rush into action with no real idea on how to solve the problem, much less mitigate it, and the attendant public uproar contributes nothing in terms of clear thinking or common sense.

As a result, laws like Nova Scotia's get passed -- laws that rely on purely subjective measures. If someone feels offended, they can press charges, utilizing a non-adversarial process that allows the accuser to present his or her case directly to a judge, who then decides whether or not it's actually cyberbullying. This opens the accused up to civil proceedings, criminal charges and a chance of being banned not just from social media but from the internet entirely, along with being banned from using electronic devices -- like a phone.

Maryland's anti-cyberbullying law ("Grace's Law") is also the byproduct of the charged reaction to a teen's (Grace McComas) post-bullying suicide. Grace's Law attempts to outlaw being a jerk while still pretending it doesn't tread all over the public's First Amendment rights. It grants exceptions for "expressing political views" and "conveying information" but that's it. And if it's a teen on the receiving end of "electronic annoyance" (whether or not the "annoyer" knows the target is a teen), expect the hammer to fall swiftly and crushingly.

Grace's Law is now in effect and the state of Maryland has gone even farther, partnering with Facebook to help it censor the output of Maryland citizens, as Walter Olson details at Cato.

On Tuesday, the new law took effect, and this morning Maryland attorney general Douglas Gansler unveiled a joint initiative with Facebook and the National Association of Attorneys General (NAAG) in which Facebook will create a new program for school officials, the Educator Escalation Channel — initially limited to use in the state of Maryland, presumably pending similar enactments elsewhere — allowing the officials to object to Facebook users’ content. Per local radio station WTOP, Maryland school officials will be offered the chance to flag “questionable or prohibited” language. That is to say, they will flag speech that isn’t prohibited by the new law but which they deem “questionable.”

The targets of the new program, according to Gansler as quoted by WTOP, include persons who are “not committing a crime… We’re not going to go after you, but we are going to take down the language off of Facebook, because there’s no redeeming societal value and it’s clearly hurting somebody.” That is to say, Gansler believes he has negotiated power for school officials to go after speech that is not unlawful even under the decidedly speech-unfriendly definitions of the new Maryland law, but which they consider hurtful and lacking in “redeeming societal value.”

Once again, the subjective standard is being applied. What's offensive to Maryland officials is deemed to be offensive to everyone. Maryland will now start censoring users' posts and comments, all with Facebook's approval. Here's Scott Greenfield with Facebook's public statement on its partnership in free speech neutering.

“Facebook continues to look for ways to help parents, teens and educators better understand the safety features built into our service,” Facebook’s Brooke Oberwetter said in a statement, thanking Gansler “for his national leadership on the issue of online safety and for working with us to create this pilot program in Maryland.”

Oberwetter's statement appears to have been pre-written by an official at the Ministry of Love. It contains the sort of Big Brother-embracing faux cheeriness Oberwtter, who once sued the DC Park Police after being arrested for dancing at the Jefferson Memorial (and lost but still returned to dance again), wouldn't make on her own. Nope, this is a corporate canned speech, one that gives a glassy-eyed nod as it awaits orders from its new "partner." As Greenfield points out, this is a dangerous precedent Facebook is setting.

While Facebook may be a private enterprise, fully entitled to decide what content is acceptable on its platform and similarly entitled to decide that its users will no longer be allowed to write “Suzy is a poo poo head” on the wall, it’s not that simple when the censor is a state actor and the content at issue is deemed offensive not because it violates any law, but because someone is empowered to stifle speech that doesn’t comport with their vision of redeeming societal value, whatever that means. By doing the bidding of teachers, Facebook becomes the agent of the state.

Even the new statement issued by Facebook, where it claims it won't be changing its content policy "one iota" rings a little hollow. The response, given to the WSJ's Law Blog, claims Facebook will show no greater preference to reports via Maryland's direct line than those arriving via the "report" buttons deployed by everyday, non-Escalating non-Educators.

But the foot's in the door.

But this is Maryland? Who cares? And Facebook is so MySpace, right? Except it’s a pilot program, and it comes with the support of the National Association of Attorneys Generals, who would like nothing better than to make sure that no speech that doesn’t meet its approval is ever seen. This is how it starts, in one god-forsaken state on one declining platform.

Maryland is the only state in the nation currently working with (or adjacent to) Facebook to make preemptive strikes against posts "without societal value." It's very unlikely it will be the last. There are plenty of opportunistic politicians, administrators and attorneys general more than happy to point out how SERIOUS they are about tackling the cyberbullying menace.

Maryland's anti-bullying law sets its own dangerous precedents, as does Facebook's willingness to (at least publicly) ingratiate itself to censorious state bodies. It won't just be one state or one social network before it's all said and done. With the NSA peeking in the back door and Maryland's NAAG squad peering through the windows, the world's largest social network has placed one foot on a slope that descends rapidly to Facebook.gov.

Filed Under: bullying, cyberbullying, maryland
Companies: facebook

Ask.fm Says Most Messages Came From Troubled Teen's Own IP Address While New Cyberbullying Law Is Widely Panned

from the a-problematic-issue-addressed-with-progressively-worse-ideas dept

The recent suicides of two teenagers, Hannah Smith and Retaeh Parsons, have prompted officials to take actions to crack down on cyberbullying. Smith committed suicide after extensive bullying on ask.fm, a social Q&A site that skews heavily towards teen users. Parsons' case is a little more troubling, as it involves an alleged rape and the extensive circulation of pictures of the attack.

UK Prime Minister David Cameron responded to Smith's suicide by calling for a boycott of "vile site" ask.fm, making the same convenient mistake many politicians do -- blaming a website for the actions of a small percentage of users. Fortunately, Cameron didn't call for any further legislation, pointing out that laws dealing with harassment (online and offline) are already on the books in the UK.

Ask.fm responded by stating it would hire more moderators and make more of an effort to track and prevent abuse. It also opened an investigation into the activity on Smith's account and returned with some very interesting findings. According to its investigation, 98% of the messages "aimed" at Hannah Smith's account came from her own IP address. Smith's father has, quite reasonably, asked the site owners to substantiate this claim. He's also asked why they haven't come forward with information on the other 2%.

While ask.fm's claim about where the abusive messages originated seems bizarre, it's not an impossibility.

Scott Freeman, founder of The Cybersmile Foundation, said: "It's very easy to get carried away in this circle of online self-abuse when you're alone in your room. [Children] check it, and keep checking, and it evolves into a kind of self-harm.

"We've seen instances where people have actually lined themselves up for abuse, posting a question like "do you think I'm pretty?" knowing that they'll get torn apart. What we're dealing with now is a completely new concept. It's the hate that's resonating through all of our social media coming through to our youth."

And what happens if the prompts are ignored, or the abusive answers are simply not coming fast enough? Or, as Hazel Robinson theorizes over at the New Statesman, what if the site becomes a vehicle to express self-hatred?

You see, I can think of maybe four or five young people I've encountered on Tumblr who I would (non-judgementally, analytically) suspect have sent themselves anonymous abuse messages in order to express their self-hatred, attack themselves through the abstraction of answering anonymous aggression. It's easy to do – just have an additional browser where you're not signed in to Tumblr and leave your inbox open to anonymous things. Cleaner than a razorblade, its simple to express your self-loathing through an avatar of external hatred.

This isn't to say that Hannah Smith attacked herself, and absent any evidence from ask.fm, there's no reason to believe she did. But the possibility remains, and it's probably not as unlikely as we parents might hope.

Parson's death, on the other hand, has prompted a huge overreaction by Nova Scotia's government, which rushed through a very terrible piece of cyerbullying legislation.The new law puts the power completely in the hands of the accuser, removes any sort of objective standard and levies harsh penalties against the accused without allowing them to defend themselves at any point.

Once again, a tragedy has resulted in legislation that makes things worse for internet users in Nova Scotia (the bill does not address regular bullying), while ignoring the laws already in place to deal with the incident that began the entire cycle.

Fortunately, the reaction to the new law has been overwhelmingly negative. Putting aside the fact that legislators often enjoy a good coattail ride, the responses from elsewhere in Canada seem to indicate no one's interested in subjecting themselves to this legislative disaster.

A National Post editorial points out just how much harm this law is capable of doing.

One might hope that the law will only be used in serious cases, but that's hardly to its credit: Legislators shouldn't be writing laws they don't want enforced. We are talking about fundamental rights and freedoms: Taking away someone's phone or banning him from the Internet represents a serious impediment to education and employment. Access to a lengthy and costly appeals process is a woefully inadequate safeguard against abuses.

The Toronto Star's editorial isn't much kinder.

Well-intentioned though it is, it unwisely defines cyberbullying in overly broad terms as “any electronic communication . . . that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person's health, emotional well-being, self-esteem or reputation.” The Star gets letters to the editor every day whose very point is to cause humiliation and distress to people with whom the writers disagree, if not to undermine their self-esteem and reputation. Are all of these people cyberbullies? There's something called free speech in this country. The new law crowds it.

Nova Scotia's law is so unpopular finding positive editorials is nearly impossible. National Post columnist Chris Selley expresses as much towards the end of a recent article:

And Sun Media's Anthony Furey joins a growing consensus of reasonable commentators in deploring Nova Scotia's absurd new anti-cyber-bullying law. (If anyone's seen a column or editorial supporting it, we'd love a heads up.)

Well, here's one.

The "Editorial Staff" at the Moose Jaw Times Herald has offered its support of Nova Scotia's law in one of the weakest editorials I've ever read. Fortunately, it's also very short. The editorial doesn't address any of the issues inherent with the bill, spending most of its time telling us how tragic suicide is and that bullying, especially cyberbullying, is bad and needs to stop.

When it's done spoon-feeding readers the obvious, it wraps up its non-argument with this.

It's time the governments of Canada go to bat for their youth, and place legal barriers into the mix, as [Wayne] MacKay suggests. Such legislation could help prevent further suicides in the same ilk as Parsons, Todd, and Hubley.

The Wayne MacKay quoted here is a law professor at Dalhousie University and is heading up a push for this legislation to be enacted across Canada. One would think a law professor would know the difference between good laws and bad laws and not actively pursue enacting such a problematic piece of legislation. (Then again, we have a president with a background in constitutional law, and that clearly hasn't resulted in constitutional rights being protected.)

The op-ed is finally put out of its misery by the final sentence, an insipid cluster of words that can barely muster the enthusiasm to get to the ending punctuation.

It certainly couldn't hurt.

Yeah, actually it could. For several examples, see nearly every other editorial written about the new cyberbullying bill. Anything recommended by the half-hearted phrase "It certainly couldn't hurt" is something obviously devoid of positive attributes. When you have to resort to using negative statements in order to "praise" something, it's time to reconsider your support.

Filed Under: cyberbullying, hannah smith, retaeh parsons, suicide
Companies: ask.fm

Nova Scotia's New Cyberbullying Law Will 'Make Bullies Of Us All'

from the 'fixing'-something-by-breaking-it dept

Another anti-cyberbullying ordinance has been rolled out in response to a tragedy. This time it's Nova Scotia enacting a new law aimed at combating the sort of behavior that resulted in the suicide of Rehtaeh Parsons.

Parsons' story is particularly horrible. Cyberbullying was only part of the problem. The much larger issue was the actual crimes committed against Parsons, criminal acts that already have laws on the books to address them. Parsons was allegedly gang-raped and harassed by her rapists. The Royal Canadian Mounted Police conducted a yearlong investigation into the case but ultimately decided there was a lack of sufficient evidence to pursue rape charges. (Conversely, activist "group" Anonymous claimed to have solved the case in two hours, using a variety of gathered information, including the EXIF data that the RCMP seemingly overlooked.)

Rather belatedly, the RCMP HAS decided to pursue child pornography charges against two of the alleged assailants, but this will be of little comfort to Parsons' family. Unfortunately, this new law (the "Cyber Safety Act" or Bill 61) won't do much to address the sort of criminal behavior Parsons suffered through. Instead, the bill will likely end up "making bullies of us all," according to Jessie Brown at MacLean's.

Rape, assault, harassment: these are crimes with established parameters. All of them could also be called “bullying.” They could also be described as “mean,” and I suppose we could enact a law against being mean. But I’d rather have laws against specific crimes, rather than against vast swaths of vaguely defined human behaviour. Ultimately, bullying is in the eye of the bullied.

Here's where these laws fall apart. Instead of an objective standard, the accused are held to a subjective standard, one applied by the accuser and enforced by the law. Where most criminal activities are clearly defined by certain actions, cyberbullying (and regular bullying) have no clear definition.

The bill works this way: an accuser files a claim with the court, requesting a protection order against the accused. A judge decides whether the behavior detailed meets the definition of "cyberbullying" set by this law. The definition of cyerbullying is broad and vague, the end result of overly-cautious lawmakers addressing a problem with no clear boundaries and doing so under the self-imposed pressure of needing to "do something."

The definition of cyberbullying, in this particular bill, includes “any electronic communication” that ”ought reasonably be expected” to “humiliate” another person, or harm their “emotional well-being, self-esteem or reputation.”

If this is the standard, I don’t know a person who isn’t a cyberbully.

Here's what can happen to the accused should the judge grant the protection order. (This process, by the way, occurs without any input from the accused -- it's solely between the judge and accuser.)

• The police can seize your computers and phone.
• Your Internet connection can be shut off.
• You can be ordered to stop using electronic devices entirely.
• Your Internet Service Provider or Internet companies, such as Facebook, can be compelled to fork over all your data to the police.
• You can be gagged by the court and prohibited from mentioning your accuser online.
• If you violate any of these orders, you’ll face stiff fines and up to two years of jail time. At this point, your accuser can sue you in civil court.

So, the law basically makes it possible for anyone's unfortunate online comments to result in a civil suit or a prison sentence. The process isn't adversarial at any point where some input or context might make a difference. Presumably, the accused can defend themselves once in civil court, but that will only mitigate the damages without having any effect on previous criminal charges or punishments already enacted.

Even worse, the law opens up parents to be targeted by civil suits for the bullying activities of their children and pushes school administrators to enact zero-tolerance policies backed by mandatory suspensions for bullying behavior -- even if it occurs off-campus. While there's something to be said for forcing parents to take responsibilities for the actions of their children, in practice this becomes nothing more than presenting parents as a "soft target" for civil suits, allowing the accuser to bypass the accused entirely if success against the parents seems more promising.

Responding to a bullying incident by lowering the bar and raising the consequences is completely the wrong answer, no matter how tragic the incident. This new law has the potential to criminalize plenty of non-bullying activity and may actually encourage abuse by anyone who sees the possibilities provided by the law's unintended consequences -- an easy route to shut down and prosecute anyone who irritates them in any way.

Filed Under: cyberbullying, free speech, nova scotia, rehtaeh parsons

'Cyberbullied' School Administration May Have Violated Student's First Amendment Rights By Suspending Him

from the the-most-power;-the-thinnest-skin dept

All the cyberbullying policies and laws being put into place to protect kids seem to be invoked most frequently to protect adults -- specifically, the adults who are responsible for the crafting of these new rules. Another case of school administrators being "cyberbullied" has hit the courts. This one stems from a disgruntled student who was unhappy with his treatment during the basketball season.

Following the season's final game, Rosario was out to dinner with his family and sent a series of crass and offensive tweets about school administrators and his coach:

1. Mr. Isaacs is a b*tch too
2. I hope Coach brown gets f*cked in the *ss by 10 black d*cks
3. Now I can tweet whatever I want and I hope one of y'all mother f*ckers snitch on me
4. Fuck coach browns bitch *ss
5. Finally this b*tch *ss season is over
6. Aiight I'm done y'all can go snitch now like before
7. Oh yea and Mr. DInkel's square *ss
8. AND Ms. Evans b*tch *ss boyfriend too He a p*ssy ass n*gg* tryna talk shit while walking away

Etiquette breach (while at family dinner) aside, school administrators were not happy. They punished Rosario for his tweets under a cyberbullying statute. The text of the statute read as follows:

"A member of the board of trustees of a school district, any employee of the board of trustees, including, without limitation, an administrator, principal, teacher or other staff member, or any pupil shall not engage in bullying cyber-bullying, harassment or intimidation on the premises of any public school, at any activity sponsored by a public school, or on any school bus."[emphasis added]

As you can see from the emphasis Venkat Balasubramani added, this collection of tweets should have remained outside the purview of the policy used to suspend Rosario. But that didn't stop the offended parties from kicking the student out of school. Unfortunately for the administration, Rosario's family took them to court, searching for injunctive relief from the suspension. (Rosario was ultimately allowed to transfer to a different school.) That was denied due to lack of irreparable harm and the school district filed a motion to dismiss. That didn't go quite as smoothly.

Rosario's family brought a "slew of other claims," but most notable is the First Amendment claim, which the court will allow to move forward.

As to Rosario's First Amendment claim, the defendants argued that the speech in question was not protected speech at all because it was "racist, violent, offensive, and hateful." The court (correctly) rejects this argument saying that the only legal basis for the speech in question to possibly be unprotected is obscenity, and this only applies to one tweet.

The court also notes that school administrators can discipline students for off-campus speech, but they need to show "substantial disruption" has occurred on campus in order to justify suspensions or expulsions. This district's policy covers a very limited area -- Balasubramani points out that its specific wording makes it unlikely to be enforceable against "activities in cyberspace," no matter if these activities happened during school events or on school grounds.

Cyberbullying policies have the built-in potential to cripple free speech, thanks to the general shift towards subjectivity, rather than objectivity. Beyond that, these policies seem to encourage a culture of heightened sensitivity and overreaction in far too many administrators.

There must be something in school administrators' DNA that causes a heightened reaction when they see their name mentioned in social media. The tweets were ill-advised at best and crass, depressing even. But I wonder whether the school would have been better off using this as a teaching moment rather than taking a harsher disciplinary approach that was not necessarily on solid First Amendment grounds.

The fact that the school relied on the cyberbullying statute is telling, and a good illustration that these types of statutes are often used in an unintended manner, to improperly suppress speech. It's a stretch at best to argue that tweets from a private account—that would not have reached the coach or administrators absent their inquiry—somehow amounted to "cyber-bullying".

This last point is also rather crucial. The district punished a student for tweets administrators never would have seen without jumping through some extra hoops. Rosario's Twitter account was private, meaning these were only shared with followers. While the court doesn't agree this gives Rosario an "expectation of privacy" in regards to his claims of Fourth Amendment violations, it does bring into question how much work administrators had to do simply to recover the tweets that offended them so much. It should have been a teachable moment, or at worst, something that could have been ignored.

Filed Under: cyberbullying, first amendment, free speech, school administrators, suspensions, tweets

Church Of Scientology Uses Copyright, Trademark, And Cyberbullying Laws To Silence Critical Parody

from the still-not-a-religion dept

For faith-based hilarity, you just can't do any better than the Church of Scientology. These photoshop masters have built for themselves the kind of reputation normally reserved for Stasi-style secret police. The constant target of Anonymous, ex-members, and every critical-thinking person on the planet are best known for gobbling up shallow celebrities, creepily persecuting critics and ex-members, and possessing the monumental testicles required to include a freaking space opera in their faith. As part of their attempts to silence critics, they've regularly run up against the wider internet, often using IP laws to gag speech.

Well, it turns out you just can't teach a kinda-old non-religion religion new tricks. Reader John alerts us to a case in which the Church of Scientology is using copyright, trademark and cyberbullying laws to silence a parody criticizing the "church", Will Smith, and the attempt to destroy film making commonly known as After Earth. Recently, they demanded that GoDaddy nix cheerupwillsmith.com, which parodied the church and the film, over the use of their logos, a letter from church-leader David Miscavige, a photo of the same Miscavige, and a parody portrayal of Mr. Miscavige.

Pointing to the presence of CSI logos and a photograph of Mr. Miscavige on the site, CSI told GoDaddy the site violated CSI’s copyright and trademark rights, and asked the company to take it down. GoDaddy promptly complied. CSI also claimed that the creators of the site had violated California Penal Code section 528.5, which forbids the credible impersonation of a human person online. Section 528.5 was intended to be used to combat cyberbullying; as we anticipated, however, it’s now being used to target political speech.

As the EFF notes while placing the Church of Scientology on their takedown hall of shame list, we have some major problems here. First, the copyright claim fails on the grounds of fair use, since the use was critical parody, with only the necessary usage used therein. The trademark claim is also pitiful for many of the same reasons, though we can add that the website was not attempting to compete in the market of religion with the "church." As for the penal code claim, it is true that that law was meant to combat cyberbullying, but I think the EFF might be off when they say:

Finally, the claim that the site violated the California Penal Code is equally absurd. Section 528.5 applies only to "credible" impersonations. No viewer would think the site offered a credible impersonation of Mr. Miscavige.

Au contraire, bonjour. Given the absurdity of the actions by these clowns, it would take a great deal to convince me of anything in which they are not capable. However, I don't think their own depravity is reason for which they could be charged with cyberbullying.

So congratulations, Scientologists. You've now made the EFF hall of shame. And if you don't like how you're portrayed there or here, you can go audit yourselves.

Filed Under: censorship, copyright, cyberbullying, scientology, trademark

Jonathan Monsarrat Drops Ridiculous Lawsuit Against Online Commenters

from the wonder-how-that-impacts-his-new-business dept

You may recall that a few weeks ago, we wrote about a spectacularly bogus lawsuit filed by Jonathan Monsarrat against a bunch of online commenters who had discussed Monsarrat's arrest a few years earlier, along with the beautifully epic response from lawyer Dan Booth of Booth Sweet LLC (also known for its Prenda fighting accomplishments). That was a long post, because there was a lot of crazy to cover, so I suggest you go back and check it out for all of the details, but it included (among other things) bogus copyright claims (in a state court, where you can't really do that), an apparent ignorance of section 230 of the CDA, what appeared to be an attempt to rewrite history as noted in press reports directly from police reports, a questionable relationship between Monsarrat and his lawyer (possibly more of a business relationship rather than an attorney/client relationship), a suggestion that the lawsuit was an end run attempt at identifying anonymous critics as part of a marketing scheme for a new "anti-cyberbullying" service that Monsarrat was starting with his lawyer, and a variety of other things.

As we noted, that "epic response" from Booth wasn't filed in court, but rather was sent in a letter to Monsarrat's lawyer, Mark Ishman. It appears that Booth, representing one of the named defendants, Ron Newman, was getting ready to officially file his motion to dismiss with the court (unfiled documents embedded below), but right before they did so, Monsarrat and Ishman filed to dismiss the case with prejudice (meaning they can't file it again). Newman points out that there was no settlement at all, so it appears that Ishman and Monsarrat realized that this case had almost no chance of succeeding (and, perhaps, a fairly decent chance of blowing up in their faces). I wonder what this will mean for their "anti-cyberbullying" service...

Filed Under: copyright, cyberbullying, dan booth, jonathan monsarrat, mark ishman, ron newman

Maryland The Latest State To Trample The First Amendment With Quixotic Attempt To Outlaw 'Cyberbullying'

from the this-again?!? dept

Cyberbullying seems to be a popular moral panic point for many politicians, who are just sure that (a) it's a huge huge problem impacting lots of kids and (b) the "cyber" element somehow makes it much, much worse than everyday bullying among kids. We've seen various states like Arizona and Louisiana pass absolutely ridiculous First Amendment-destroying laws trying to stamp out the scourge of people being jerks online. All of this despite the evidence that cyberbullying is a pretty minor thing, and the laws do little to stop what actual bullying happens online.

So, given all that, Maryland appears to be the next to spit on the First Amendment with its own "anti-cyberbullying legislation," which, like the others, seems to want to outlaw being a jerk online, if that behavior is directed at a child. While the bill the Assembly passed took out some of the worst language, it still has massive problems:

While electronic annoyance of an adult becomes criminal only if it continues after a request to stop, no such triggering provision is included for behavior that may annoy a minor. (And as I read it, there is no requirement that the defendant know that the person being subjected to intentional emotional distress is a minor — engaging in a vigorous “flame war” with a Maryland resident might turn out to be criminal if the username “ParentInLinthicum” turns out to conceal a teenage user.) Exceptions are made for speech that is intended to express political views or convey information, a curious pair of exemptions in that it has long been assumed that our First Amendment protects many types of seriously annoying speech other than those two.

In the long run, these kinds of laws only serve to create massive chilling effects on speech, and will, undoubtedly, be used to cause much more trouble for other children. As Walter Olson notes:

We are supposed to support this law — and some lawmakers I admire did support it — to show that we care about children. Once on the books, however, this law will assuredly ruin the lives and futures of other kids who will be the subject of investigations and prosecutions, and not all those kids are monsters whose ruin we should accept with equanimity

Yes, bullying sucks, but passing a law that ignores the First Amendment is never going to stop kids from saying mean things to one another -- though it might just put them in hellish situations in which they're prosecuted for doing things that kids do.

Filed Under: cyberbullying, free speech, maryland

Arizona Politicians Scramble To Adjust Internet Censorship Bill After The Internet Mocks Them For Being Clueless

from the this-won't-end-well dept

You know what's a bad sign? When you're a state legislature, and you pass what's clearly an unconstitutional law that criminalizes using technology to "annoy or offend" others -- and then you have to scramble after-the-fact to amend the bill you already passed. Yes, thanks to a rather loud public mocking of Arizona politicians for ignoring the First Amendment in its internet censorship bill, the Arizona legislature is trying to amend the bill quickly.

Here's a thought, though: if you passed a bill so bad that people around the globe are mocking you, perhaps it suggests you don't know what you're doing. At that point, shouldn't you back away from mucking with the internet, and leave that to the professionals who actually understand technology? Somehow, diving back in and pretending that this time you'll get it right doesn't inspire confidence. And, in fact, the details suggest that any amendments considered at this point will almost certainly still be First Amendment violations.

“Even so narrowed, the statute is unconstitutional. You simply cannot prohibit emails that are said to be intended to offend. That violates the First Amendment flat out,” said University of Chicago Law School professor Geoffrey Stone, who specializes in constitutional law. “You can prohibit email if the recipient has requested you to stop sending them. That’s different -- but that’s not what this says.”

Still, I think the most ridiculous words of all come from Rep. Steve Farley from Phoenix whose statement on the bill is really quite stunning:

"I know people are focusing on unintended consequences of the bill, but I don’t think that's realistic," Farley said. "I think this is a wakeup call that we should be civil online and in society in general. I don’t think it's right we should ever be able to threaten violence against each other online."

I love how he doesn't explain why the unintended consequences aren't "realistic." He just insists that's the case. Of course, anyone who's actually been around policymaking (especially when it comes to technology) knows that there are always unintended consequences. And it's not hard to find unintended consequences of a bill like this that broadly outlaws "annoying" people with electronic devices.

But even more ridiculous is that second half. You don't legislate civility. We don't make a law saying you have to say "please" and "thank you." Look, some people are obnoxious jerks out there. That's not a legislative problem. Finally, his claim that people shouldn't be able to threaten violence against each other might have some weight if the bill was actually limited to people threatening violence. But it's not.

How do people like this get elected?

Filed Under: arizona, censorship, cyberbullying