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This article is the last of a three-part discussion on the nature of, and relationship between, cyber-bullies, griefers and the legal concept of harassment.
Because the terms “cyber-bully” and “griefer” are often tossed around interchangeably, I began the first part of our discussion by clarifying the term “griefer,” the second part by clarifying “cyber-bully,” and by explaining (in both cases) when and under which circumstances the two terms were meaningfully distinguished.
I will begin this section by introducing the legal term harassment.
Where Cyber-Bullying Becomes Harassment
We can certainly split hairs over whether we’re looking at a simple case of “griefing” or “cyber-bullying” or whatever else one might prefer to call it. But, whenever we’re looking at conduct that substantially interferes with the education or physical or mental health of a student, or that threatens or intimidates a student — we are at the same time, looking at what the courts have overwhelmingly held as “plain, old-fashioned harassment.”
Once the perpetrator has engaged in harassment, the law could care less whether they were doing so while playing an online game (as a “griefer”), or were just being malicious to a fellow student (as a “cyber-bully”).
Either case, where it constitutes a pattern of inappropriate, disrespectful behaviors, becomes unlawful when (a) enduring the offensive conduct becomes a condition of continued education (for the victim), or (b) when the conduct is severe or pervasive enough to create an educational environment that a reasonable person would consider intimidating, hostile, or abusive.
“Online harassment,” aside from occurring in an online environment, can still be construed as simple harassment. It can be direct or indirect, where direct online harassment would include threats, intimidating messages and/ or bullying that is sent directly to a victim by email or other forms of online communication, or by hindering the victim’s internet service, by hacking.
Chat rooms, instant messaging services, and social networking sites are all among the most popular venues for cyberbullying, and account for almost all instances of online harassment. Online harassment can even follow the victim home.
Two of the more important things we learn by looking at cyber-bullying from a legal perspective, is that (a) where harassment is found, the responsibility for creating a safe and respectful school environment is placed on the manager; and (b) schools have a legal responsibility to intervene when they know or suspect students are being harassed. One way to intervene is to punish. But, before punishing students, schools must draw a distinction between harassment and student expression (i.e., free speech) that is protected by law.
“. . . schools do not need to wait to respond to conduct until it escalates to a point where it may be punished. Schools may respond to such conduct in ways other than punishment. In fact, they have a responsibility to do so. For example, if a teacher were to overhear a student directing a homophobic slur at another student, she would have a responsibility to explain why such language is inappropriate and harmful. The teacher should also point out that if such conduct continues, it could be subject to punishment. There is no better way to prevent student harassment than to educate students about why slurs and other harassing behavior are harmful.”
- ACLU
By narrowly tailoring its punishments to fit the case at hand, a school strikes the proper balance between two equally important and entirely compatible constitutional rights — the right to equal protection of the laws and the right to free speech.
Insofar as my professional training does not lie directly in the area of law, I think it best at this point to simply direct your attention to the ACLU, which provides a model anti-harassment policy that can prevent harassment without violating student’s free speech rights.
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