This presentation offers an overview of the legislative and legal landscape of cyber bullying and sexting. It is meant for attorneys involved in these kinds of cases.

2. DISCLAIMER
This presentation is for educational
purposes only and does not constitute
legal advice. It is recommended that you
seek legal counsel for specific matters.

3. What is Cyber-bullying?
Cyber-bullying is the use of the Internet
and related technologies, such as cell
phones, to harm other people, in a
deliberate, repeated, and hostile manner.

4. What is Cyber-bullying?
 Millenium High School, Arizona, an anonymous group
creates a Facebook page that encourages users to post
unflattering comments about students and teachers at
the school.
 A teenager, who gets in a fight with friends, is the
target of more than 100 mean-spirited tweets about
her.
 A teen girl receives harassing messages from her
friend “Josh” commits suicide by hanging herself, after
he “tells” her the world would be better without her.
“Josh” turns out to be the girl’s ex-friend’s mother
(Megan Meir, 2006)

5. What is Cyber-bullying?
As it has become more common in
society, particularly among young people,
legislation and awareness campaigns
have arisen to combat it.

6. What is Cyber-bullying?
 Cyber-bullying Technology:
 Social Media platforms, such as Facebook
®, Twitter ®, MySpace ®, etc.
 E-mail
 Cell phones via text messaging or phone calls
 Instant Messaging
 Defamatory personal web sites
 Chat rooms or other online “hang-outs”

7. What is Cyber-bullying?
Cyber-bullying Categories:
 Inadvertent
 Vengeful Angel
 Mean Girls
 Power Hungry
 Revenge of the Nerds
~Parry Aftab, Esq., Executive Director, WiredSafety.org

8. What is Cyber-bullying?
Cyber-bullying Techniques:
 Flaming
 Harassment
 Cyber-stalking
 Denigration
 Impersonation
 Outing & Trickery
 Exclusion
~Nancy Willard, MS, JD, Director, Center for Safe & Responsible Internet Use

9. What is Cyber-bullying?
Cyber-bullying Statistics:
 43% of teens have been cyber-bully victims, but
less than 11% talk to their parents about it
 35% of kids have been threatened online
 As many as 160,000 students may stay home on
any given day because of bullying
 Cyber-bullying typically starts at 9 years of age
 Cyber-bullying affects 65-85% of kids in the
core group directly or indirectly through close
friends
~Various studies including 2003-2004 i-Safe America survey; Aftab

10. Current State of Laws
 49 States currently have anti-bullying laws, only
Montana doesn’t. http://www.bullypolice.org/
 8 states include the word “cyber-bullying” in their
laws (Arizona, Kansas, Massachusetts, Nevada,
Hampshire, Oregon, New Jersey, and New York).
 31 states include reference to “electronic harassment”
 7 states have criminal sanctions for bullying behavior
(Idaho, Kentucky, Missouri, Nevada, North Carolina,
Tennessee, and Wisconsin)

11. Current State of Laws
 39 states have school sanctions for bullying
 44 states (including Washington, DC) require school
policies addressing bullying.
 No federal legislation yet.
 Rep. Linda Sanchez (D – CA39) introduced the Megan
Meier Cyberbullying Protection Act, HR 1966, in 2009
session. Bill was not enacted and died in committee.
 Concern: too broad and unconstitutionally vague
 UCLA Professor Eugene Volkh “It is well within a person’s 1st
Amendment rights to be rude and harsh.”
~ Cyber-bullying Research Center, http://www.cyberbullying.us/

12. Law Example: New Jersey
HARASSMENT, INTIMIDATION & BULLYING (HIB)
New Jersey has been a leader in the establishment of a
strong statutory, regulatory, policy and program
framework to support the prevention, remediation and
reporting of HIB in schools.
http://www.state.nj.us/education/students/safety/beh
avior/hib/

13. Free Speech & First
Amendment
Most schools claim that they are restricted as to
how they can pursue cyber-bullying because of
two issues:
 It is usually done off school property
 The issue of the posts being protected by
First Amendment rights

14. The Tinker Standard
 Tinker v Des Moines Independent Community
School District, 393 US 503 (1969)
 Students were suspended for wearing black armbands
to protest the Vietnam War.
 Court ruled that a “school may regulate a student’s
speech or expression if such speech causes or is
reasonably likely to cause a material and substantial
disruption to school activities or to the work of the
school.” 711 F.Supp. 2d. 1094, 1100 (CD Cal 2010)

15. Recent Cyberbullying Cases
 Two cases, J.S. v. Blue Mountain School District (593
F.3d 286, 308 (3rd Cir. 2010)) and Layshock ex. rel.
Layshock v. Hermitage School District (593 F.3d 249
(3rd Cir. 2010) have had strikingly different outcomes
 In both cases, students used an off-campus computer
to create a fake profile of a school principal.
 In both cases, the profile sparked a reaction on
campus and enraged the principal.
 And in each case, the principal reacted by suspending
the student.

16. J.S. v. Blue Mountain School
District
 J.S. and her friend K.L., another eighth grade student at
Blue Mountain Middle School, created a fake profile of
middle school Principal James McGonigle, which they
posted on MySpace.
 The profile did not identify McGonigle by name, school, or
location, though it did contain his official photograph from
the School District’s website. The profile was presented as
a self-portrayal of a bisexual Alabama middle school
principal named “M-Hoe.”
 The profile contained crude content and vulgar language,
ranging from nonsense and juvenile humor to profanity
and shameful personal attacks aimed at the principal and
his family.

17. Layshock ex. rel. Layshock v.
Hermitage School District
 High school student Justin Layshock posted a fake MySpace
page parodying his high school principal, Eric Trosch.
 Layshock posted a picture of Trosch and answered the
questions asked by the site's profile template by riffing on
the word "big" because Trosch is apparently a large man.
Answers included phrases like "big faggot”.
 To the question, "what did you do on your last birthday,"
Layshock answered "too drunk to remember." Layshock
created the profile from a computer at his grandmother's
home.

18. Recent Cyberbullying Cases
 In the twin Feb. 4, 2010, decisions, the 3rd Circuit
ruled that the student suspension was proper only in
the J.S. case.
 In the Layshock case, the court found that the school
district could not establish “a sufficient nexus”
between the student’s cyber speech and a substantial
disruption of the school environment.

19. Judicial Outcomes
 The Court of Appeals in the J.S. case reversed the
ruling in part, stating that the school district could not
punish the student for use of profane language
outside the school, during non-school hours.
 The Court of Appeals in the Layshock case stated that
the student's “entering” district's website to “take”
district's photo of principal was not sufficient to forge
nexus between school and profile and,
 The school district did not have authority to punish
the student for expressive conduct outside of school
that district considered lewd and offensive.

20. Recent Cyberbullying Stories
 Former Rutgers University student Dharun Ravi was
found guilty of hate-crime charges and invasion of
privacy for using a webcam to secretly record his
college roommate, Tyler Clementi, who later
committed suicide.
 Throughout the trial, it was clear that the judge and jury were
entering relatively new legal territory of cyber-bullying. The
complicated legal definition of a hate crime made the verdict
difficult to determine. The jury concluded that Ravi’s repeat
behavior casted doubt on his innocence.
 Ultimately, jurors found that Clementi “reasonably believed”
he had been made a target because he was gay.
 Ravi sentenced to 30 days.

21. Cyber-bullying or a Joke?
 The American Civil Liberties Union of Indiana filed a federal
lawsuit on behalf of three Indiana girls, claiming the Griffith
Public Schools district in northern Indiana violated the girls' civil
rights when it expelled them on the basis of a personal off-
campus conversation that attorneys say shouldn't have been
taken so seriously.
 The lawsuit filed in U.S. District Court in Hammond says that any
reasonable person would have realized the 14-year-olds' banter
was in jest in part because of the use of emoticons such as smiley
faces, humorous online shorthand such as LOL and ROFLMAO,
and capital letters that represent sarcasm used while discussing
killing another classmate.
 http://www.huffingtonpost.com/2012/06/14/facebook_n_1597
799.html

22. Other Cases of Interest
 J.S. v Bethlehem Area School District, 807 A.2d
803 (Pa. 2002)
 Emmett v Kent School District No. 415, 2000
U.S. Dist. LEXIS 4995
 JC v Beverly Hills Unified School District, 711 F
Supp 2d 1094 (CD Cal 2010)

23. Litigation for Cyber-bullying
 Get the facts from the child/teen.
 If it is one student against another, inform the
school.
 If there is any danger to your child, inform the
police.
 Change schools for your child if the bully stays in
the school.
 Document harm to the child. Print out screen
shots of the messages and posts.

24. Litigation for Cyber-bullying
 File a lawsuit in the small claims court to get the
other parents’ attention and to tell the school you
are serious.
 File a civil suit against the bully, the parents, the
school district.
 Compensation for stress and anguish caused by
the cyber-bullying; costs for any medical services
and medication expenses as a result of the
bullying; restraining order against the bully.

25. Litigation for Cyber-bullying
 Causes of actions beyond cyber-bullying:
 Defamation
 Stalking
 Harassment
 Intimidation
 Invasion of Privacy
 Intentional Infliction of Emotional Distress
 Violation of Civil Rights with Bodily Injury
 Hate Crime
 Sexual Exploitation

26. Is it Cyber-bullying or Just
Rudeness?
Look at:
1. Kind of Threats
2. Frequency of Threat
3. Source of Threats
4. Nature of Threats
The more frequent, the more dangerous the methods in the
threat, more people involved, the more serious the threat is.
Aftab, Esq.

27. Tips for Someone Being
Bullied
 Tell a trusted adult about the bullying, and keep telling until the
adult takes action.
 Don’t open or read messages by cyber bullies.
 Tell your school administrators if it is school related. Schools
have a bullying solution in place.
 Don’t erase the messages - they may be needed to take action.
 Protect yourself - never agree to meet with the person or with
anyone you meet online.
 If bullied through chat or instant messaging, the "bully" can often
be blocked.
 If you are threatened with harm, inform the local police.
http://www.in.gov/attorneygeneral/2629.htm

28. Sexting
 We define sexting as “the sending or receiving of
sexually-explicit or sexually-suggestive images or
video via a cell phone.” Most commonly, the term has
been used to describe incidents where teenagers take
nude or semi-nude (e.g., topless) pictures of
themselves and distribute those pictures to others
using their cell phones (although it is also possible to
distribute such images via social networking
sites, email, instant messaging programs, and video
chat).
http://www.cyberbullying.us/Sexting_Fact_Sheet.pdf

29. Sexting Statistics
The percent of teenagers who have sent or posted nude or semi-nude
pictures or video of themselves:
 20% of teenagers overall
 22% of teen girls
 18% of teen boys
 11% of young teen girls ages 13-16
The percent of teenagers sending or posting sexually suggestive
messages:
 39% of all teenagers
 37% of teen girls
 40% of teen boys
This is based on the National Campaign Survey, but Pew Research
Center puts this less at about @12-13% of all teens with no gender
differences.

30. Sexting Cases – Jesse Logan
 The suicides of Jesse Logan and Hope Witsell forced
adolescent sexting behaviors to the forefront of
“national social conscience.”
 Jesse Logan was an 18-year-old girl from Ohio whose ex-
boyfriend circulated nude pictures of her to a large
number of their high school peers, leading to extensive
and unremitting verbal cruelty.
 Two months later, she committed suicide after suffering
scholastically and relationally as a result of the
humiliation and abuse she received from classmates.
 http://www.huffingtonpost.com/2009/12/07/jessica-
logan-suicide-par_n_382825.html

31. Sexting Cases – Hope Witsell
 Hope Witsell was 13 years of age when she sent a
topless picture of herself to a boy she liked. The image
quickly found its way onto the phones of other students.
 Her journals indicated the vicious name-calling (e.g.,
“slut,” “whore”) she endured for weeks before it became
too much for her to handle. She ended her life two
weeks into her eighth grade year.
 http://articles.cnn.com/2010-10-
07/living/hope.witsells.story_1_photo-new-school-year-
scarves?_s=PM:LIVING

32. What Should be Done?
 Attorneys should inform educators that they should work
with a police officer to collect any evidence and investigate
the incident to determine its nature.
 It should be made very clear that administrators and
educators should never forward, copy, transmit, download,
place on a USB thumb drive, or show any non-law enforcement
personnel any evidence collected from a personal digital
device, cell phone and/or computer after the initial discovery
of sexual content, or at any other time during the investigation.

33. What Should Be Done?
 This may lead to felony criminal child pornography
charges, even if actions were made in the best
interests of the student(s) involved (Oei, 2009).
 To avoid legal liability in instances of sexting, it is
highly recommended that school administrators only
confiscate the devices, and let law enforcement search
its contents and call logs.
 “The laws need to catch up to this technology so a
girl sending a pic of herself to her boyfriend isn’t
prosecuted and charged as a sex offender.”
-School Resource Officer from Arizona

34. Legal Consequence
In some states, sexting is illegal and can constitute child
pornography. Individuals possessing the images of
minors face being put on the Sexual Offenders Registry
for up to 20 years. Doesn’t matter how old they are, it
matters how old the person in the photo is.

35. Education and Outreach
 “Look, kids do stupid things, impulsive things, all the
time. We need to approach this problem logically.”
- Lawmaker from New Jersey
 Law and policies are a necessary, but not
sufficient, component of a comprehensive prevention and
response plan. We don’t want the presence of law and policy
to take the place of purposed educational efforts to teach
teens about the responsible use of technology.
 This sometimes happens when laws or policies are passed
as a way of quickly “dealing” with an issue, without
understanding its fundamental causes.

36. Education and Outreach
 Attorneys should inform schools and parents that
they must implement creative educational strategies
to raise awareness among students on the negative
impacts of sending or receiving sexually-explicit
images of themselves or someone else.
 Schools need effective school policies regarding this
issue. The policy needs to be communicated to
students, parents, teachers, and staff.

37. School Policy Components
 Specific definitions for harassment, intimidation, and
bullying (including the electronic variants)
 Graduate consequences and remedial actions
 Procedures for reporting
 Procedures for investigating
 Specific language that if a student’s off-school speech
or behavior results in “substantial disruption of the
learning environment” the student can be disciplined
 Procedures for preventing cyber-bullying (workshops,
staff training, curriculum development).

38. Resources
 NYSSCA Cyber Bullying & PEAS Program
 www.nyssca.org/.../Cyberbullying%20pp-
New%20NYSSCA.pdf
 The Law’s Repsonse to Cyber Bullying
 http://www.nacdl.org/Champion.aspx?id=20618
 Cyber Bullying Fact Sheet
 http://www.cyberbullying.us/cyberbullying_fact_shee
t.pdf

39. Resources
 Anti-Bullying Network
 http://www.antibullying.net/
 Cyber-bullying Research Center
 http://www.cyberbullying.us/
 Government Stop Bullying Site
 http://www.stopbullying.gov/
 It Gets Better Project
 http://www.itgetsbetter.org/

40. Resources
 National Parent-Teacher Association: Stop Bullying
 http://www.pta.org/bullying.asp?gclid=CPKkx-
z6pKoCFYgW2godcXC7Wg
 Stomp Out Bullying
 http://www.stompoutbullying.org/
 Stop Cyber-Bullying
 http://www.stopcyberbullying.org/

41. Resources: Videos
 Digital Nation
Frontline – CBS (2010)
http://www.pbs.org/wgbh/pages/frontline/digitalnation/
 Growing Up Online
Frontline: CBS (2009)
http://www.pbs.org/wgbh/pages/frontline/kidsonline/
 The “In Crowd” and Social Cruelty
ABC News Special
http://www.amazon.com/News-Specials-Crowd-Social-
Cruelty/sim/B000IMVORS/2

42. Resources: Books
 Bullying Beyond the Schoolyard: Preventing & Responding
to Cyberbullying, by Sameer Hinuja & Justin Patchin
 Confronting Cyberbulllying: What Schools Need to Know to
Control Misconduct & Avoid Legal Consequences, by
Shaheen Shariff, PhD
 Cyberbullying & Cyberthreats: Responding to the
Challenge of Online Social Aggression, Threats & Distress,
by Nancy Willard & Karn Steiner
 Girl Wars: 12 Strategies That Will End Female Bullying, by
Cheryl Dellasega & Charisse Nixon

43. Resources: Books
 Odd Girl Out: The Hidden Culture of Aggression in Girls, by Rachel
Simmons
 Queen Bees and Wannabes: Helping Your Daughter Survive
Cliques, Gossip, Boyfriends and the New Realities of the Girl World, by
Rosalind Wiseman
 Responding to Cyberbullying: An Action Tool for School Leaders, by
Jill J. Myers, et al
 Teen Cyberbullying Investigated: Where do Your Rights End and
Consequences Begin, by Thomas Jacobs, JD
 The Bully, The Bullied and The Bystander: From Pre-School to High
School – How Parents and Teachers Can Help Break the Cycle, by
Barbara Coloroso

44. Resources: Law2sm
Law2sm Cyberbullying Corner:
www.law2sm.com
To inquire about workshops for
students, parents, school districts, and others
contact:
info@law2sm.com
404-857-1331