Facebook, the First Amendment, and the Future of Cyberbullying Law

In 2012, a group of tweens pelted a schoolmate — we’ll call her Tina — on Facebook. Take down requests to Facebook went unanswered, and since the incidents happened outside of school,  police and school officials’ hands were tied. But instead of giving up, Tina filed a defamation lawsuit, which raised a question worth considering: What are the chances of winning a defamation lawsuit filed in response to a cyberbullying situation?

Julie Hilden of Justia.com reviewed the case, and many of her points are worth repeating. So, let’s take a look.

Tina’s Cyber Bullying Defamation Lawsuit Background

The crux of this cyberbullying law case centers on a phony Facebook profile. The page is made to look like Tina controls it and includes childish barbs. For example, the page lists Tina’s native language as “Retardish”; it also features a racist video — again, posted under Tina’s name. On advice of police, Tina and her family reported the fake page. Unfortunately, Facebook didn’t respond in a timely manner. So, instead of waiting, Tina, with the help of her parents, filed a defamation lawsuit against the perpetrators.

Why defamation? Because the page appeared to be Tina’s creation. Plus, the things posted on the page were untrue and had a deleterious effect on Tina’s reputation.

This is not the first case where someone has been taken to court for making a “parody” or phony page online. The Associated Press wrote: Justin Layshock of western Pennsylvania was suspended after he created a MySpace parody in 2005 that said his principal smoked marijuana and hid beer behind his desk. The suspension was overturned by a federal judge, who found that school officials failed to show the student’s profile disrupted school operations. The judge’s decision was later upheld by an appeals court. In West Virginia, Kara Kowalski sued school officials after she was suspended from her high school for five days in 2005 for creating a web page suggesting another student had a sexually transmitted disease. A federal appeals court upheld the suspension, dismissing Kowalski’s argument that the school shouldn’t punish her because she created the site at home.

The U.S. Supreme Court declined to hear either case.

The Anatomy of A Cyberbullying Defamation Lawsuit

Now that you know a little bit more about the case, let’s talk about the applicable law.

SOCTUS Doesn’t Seem Interested Yet

When bad conduct happens away from school, schools’ hands are tied when it comes to  doling out punishments. Quite a few cases have been tried in the courts – but so far, SCOTUS has declined to hear such cases.

The Issue of Harm

Basically, libel is a false, negligent, harmful statement.  So, in this cyberbullying law suit, one of the main issues became: was Tina materially harmed by the bullying?

Because the fake page creators knew each other and knew the postings were false, it may be hard for her attorneys to prove actual damage. And if the bullies didn’t believe the false information they posted, did other students believe it?

Parody & Satire Aren’t Defamatory

Remember “The People v. Larry Flynt,” the movie based on Hustler Magazine v. Falwell? Parody figured centrally in that case; the decision ultimately being: reasonable people wouldn’t believe the cartoon over which Falwell sued. Otherwise stated: satire and parody aren’t defamatory.

The same theory applies here. Did any of Tina’s schoolmates actually believe the information on the fake Facebook page? Moreover, can tweens be considered “reasonable people” when it comes to emotional stresses?

Other Options For Cyberbully Plaintiffs

What may have been a better tact for Tina? Instead of defamation, perhaps she should have focused on just one of the false claims in her lawsuit, thereby narrowing the scope, making a ruling in her favor more likely. Moreover, it may have been beneficial as Julie Hilden points out, for her to have filed an “intentional infliction of emotional distress” claim.

Speak With A Professional About Your Cyberbullying Situation

So, did Tina win the case? Truth be told: we can’t find information on how the case resolved. Best guess: either the case is on-going, it was settled, or dismissed.

Does that mean a cyberbully defamation case won’t work for you, too? Not necessarily.

Defamation laws in the United States have clear limits. If, after some research, you think you may have a valid claim, dialogue with an attorney experienced in both cyberbullying law and defamation law.