Cyberbullying – The Virtual Playground and the First Amendment


Although sticks and stones may break your bones, names alone can still hurt you. New advancements in modern technology allow individuals to communicate virtually, where actual physical contact is unnecessary. In fact, as globalization of our economy continues, modern technology is developing and evolving at a rate that seems to be equivalent to the speed of light. Technology that is created today is seemingly obsolete by tomorrow. As technological devices such as personal computers and cellular phones become increasingly common possessions among students, bullying is moving beyond the physical space and into cyberspace. In fact, modern technology allows students to harass other students at any time and from any place, while often safely cloaked in a veil of anonymity.

As cyberbullying continues to create a new breed of problems among students, the dilemma of finding a workable solution is ever present; however, standing between the problem and its solution are several roadblocks. Among the obstacles to resolving the issue of cyberbullying is the right to speak freely, as guaranteed to all by the First Amendment to the United States Constitution.

First, let’s look at the concept of cyberbullying in more detail.

Bullying: From Personal Space to Cyberspace

As technology advances, so too does the method of communication and level of interaction between individuals. In early America, the time it took to send and receive messages depended on how fast the postman’s horse could gallop. Today, people send messages instantaneously to each other across the globe. Although this technological advancement has provided us with significant advantages, it has also created a slew of new problems, particularly with regard to bullying. The traditional image of the stereotypical bully is the deviant child on the playground who inflicts physical harm on another. Today, however, "physical separation of the bully and the victim is no longer a limitation in the frequency, scope, and depth of harm experienced and doled out."

In order to understand the magnitude of the problems that result from cyberbullying, one must first understand what exactly this term means. Although a generally accepted definition has yet to be developed, cyberbullying can be generally defined as a type of harm that is inflicted through the medium of electronic text that is intentional and repetitive.

Crucial to the notion of cyberbullying is the presence of a power imbalance between the aggressor and the victim; however, this imbalance differs from the power structure usually present in situations involving traditional forms of bullying. For example, physical bullying may involve two people, one of whom is significantly larger in size or greater in strength than the other. Social exclusion usually results from a power imbalance between an individual who is widely viewed as being more popular or mentally capable than another. With cyberbullying, however, the power imbalance seems to depend on a factor that is sometimes present in both the bully and the victim—the factor of anonymity.

Research indicates that the harm that results from cyberbullying may actually be greater than the harm caused by traditional bullying because the cyberbully is often able to keep his or her identity anonymous. According to Gabriel Tarde’s law of insertion, "new technologies will be applied to augment traditional activities and behaviors. Certain characteristics inherent in these technologies increase the likelihood that they will be exploited for deviant purposes." The main characteristics of cyberspace that encourage cyberbullying are the anonymity of the bully, the lack of supervision in cyberspace, and the ease with which the bully can contact the victim, regardless of the time-space distance between the two.

Next, let’s look at how the First Amendment to the United States Constitution relates to the topic of cyberbullying.

An Obstacle of Constitutional Proportions: The First Amendment

According to the First Amendment to the United States Constitution, "Congress shall make no law…abridging the freedom of speech." So important was this idea of the right to convey one’s ideas freely and without fear of legal consequences, that our Founding Fathers put it at the top of a list that would eventually become known as the Bill of Rights.

In both Ashcroft v. ACLU and Reno v. ACLU, speech that takes place through electronic mediums is entitled to traditional free speech protections. Although online speech is still protected speech, this right to speak freely is not absolute. In certain situations, schools may respond to cyberbullying and discipline a student, and in other situations, the school must respond. In other words, the legal rules in this area are not black and white; instead, everything is gray. This puts schools and school administrators in a difficult legal predicament: if they respond, they may violate the First Amendment; if they do nothing, they may be reprimanded for failure to act.

According to the standard set forth in Hazelwood School District v. Kuhlmeier, schools may impose educationally based restrictions on student speech. This standard applies when students are on school property, and most likely when they are using the property of the school district to convey harmful messages (i.e. the district-wide computer system). If the student’s speech constitutes a true threat, then schools must act, and failure to do so can result in expensive and time-consuming lawsuits against both the school and school officials.
An area that is even more unclear is when the harmful speech occurs both online and off school property. In Tinker v. Des Moines Independent Community School District, the U.S. Supreme Court implemented a standard where schools could respond in such precarious situations. According to the Tinker standard, school officials may respond and discipline the cyberbully-student if the speech that he or she produces either causes a material or substantial disruption in the school environment, or infringes on the privacy rights of others. Although this standard gives schools a little leeway in disciplining students for speech that occurs off school property, recent case law suggests that this is a difficult standard to meet.

The U.S. Supreme Court has made it clear that online speech is entitled to the same protections as traditional speech. What has long been protected in the physical community is now protected in the online community. Although some may argue that cyberbullying is a form of anti-social behavior, it is imperative to remember that when we step foot in any community we are subjecting ourselves to dialogue that is often disagreeable, offensive, and sometimes antisocial. As a result of the guarantees provided by the First Amendment, a legal remedy to the problem of cyberbullying is not the most effective solution.

The Court has made it evident that it will not tread on the liberties that were guaranteed to us in a time when the idea of an Internet or cellular phone had yet to become a distant thought or reality. In an area where the rules need to be black and white, we are still living in almost total grayness. The Court has made clear that "[b]road prophylactic rules in the area of free expression are suspect…Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms." In other words, the Court has essentially refrained from giving us clear guidelines when dealing with online free speech situations. So, better laws will have to develop to address cyberbullying (which will likely begin at local and state levels).

Finally, let’s wrap this article up by going over a few key points.


With each passing day, bullying is becoming all too common in schools across the world. As modern technology advances faster than a speeding bullet, young people are experiencing harassment via electronic mediums such as the cellular phone and the Internet. Not only has this had negative effects on the victim’s physical, emotional, and social well-being, but it has also affected the school environment.

The online community and the physical community are no longer separate realms. Over time, they have become entangled in the same world. As bullying in all its forms increases, parents and educators need to take a firm stand against such activity and make it known that it will not be tolerated. Prevention, and in the event of bullying occurring, proper intervention, need to be the means used to combat cyberbullying. Comprehensive school policies need to be carefully balanced against the constitutional rights guaranteed by the First Amendment.

In the context of bullying, continuing education for school officials, parents, and children needs to be incorporated into schools’ curriculum. Students need to know that their cries for help will be heard by their parents and teachers, and parents and teachers need to listen to what the children are saying, even when they are silent.

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