Is Cyberbullying Protected by Freedom of Speech?

Paige Geis Bradshaw
Is Cyberbullying Protected by Freedom of Speech?

The second the Internet became accessible by all, predators found a way to infiltrate and carve out their own corner online.

Sadly, the same can be said for bullies. Now, not only can cruel kids take their teasing and taunting up and down the school halls, they unleash their harmful harassment online as well. Home used to be a refuge for children suffering from relentless mockery—today, kids can be attacked anytime, anywhere through their technology.

Freedom of speech is a unique and precious protection we’re afforded in the United States. Over and over again, higher courts have upheld that even when speech is disliked or distasteful, that doesn’t make it criminal. But as times have changed, cases specific to cyberbullying have climbed the legal ladder.

Is cyberbullying protected by freedom of speech? Keep reading to find out.

What Is Cyberbullying?

Before we elaborate on the legality of cyberbullying, let’s tackle these two questions: What is cyberbullying? How is it different from plain old bullying?

Cyberbullying is a form of bullying that happens through digital devices. This can include computers, smartphones, and tablets. But because the Internet and online apps can be accessed with this hardware, the platforms through which cyberbullying can take place are nearly endless:

  • Social media platforms like Facebook, Instagram, and TikTok
  • Picture messaging apps like Snapchat
  • Message boards and chat rooms
  • Anonymous online forums like Reddit
  • Video streaming and gaming platforms like Twitch
  • Comment sections on video platforms like YouTube

More specifically, cyberbullying involves intentionally sharing content about others that is false, harmful, mean-spirited, or private, usually without their knowledge or permission. Cyberbullying also includes more direct approaches, such as phone calls, text messages, and emails.

Though the intent may simply be to hurt or humiliate someone else, cyberbullying can quickly spiral into more than bad behavior—it can become criminal.

Is Cyberbullying Illegal?

Is cyberbullying illegal? Yes and no. Surprise, surprise—cyberbullying cases can be complicated.

The good news? Every state has laws in place to ensure schools respond to bullying. In many of these state laws, cyberbullying has been added as an offense.

The bad news? Each state handles cyberbullying in a different way. While some states have established laws, policies, and regulations, other states only have policies. That means they have not yet developed established laws, policies, and regulations, which impacts how a cyberbullying case could potentially be prosecuted. Regardless of whether a state has established laws or policies only, neither contains specific consequences for kids who bully.

On the federal level, there are no protections in place for children experiencing cyberbullying. In some cases—if the bullying is based on age, color, disability, gender identity, national origin, race, religion, sex, or sexual orientation—the cyberbullying could collide with discriminatory harassment, which is a crime.

Criminal territory is also crossed if someone is threatening or committing violence that’s motivated by bias against the characteristics listed above. When this happens, a hate crime has occurred.

All in all, is cyberbullying illegal? There are state laws and policies in place that require schools to respond to and alleviate instances of cyberbullying. But unless discriminatory harassment, violence, or a hate crime has occurred in conjunction, there’s little that can be done legally to stop the cyberbullying.

Cyberbullying in the Court

Though uncommon, cyberbullying cases have been taken to court before.

In People v Marquan M. in 2014, the New York Court of Appeals declared that an Albany County cyberbullying law listed “overly broad” restrictions. This ruling invalidated the cyberbullying law entirely, citing it a violation of the Free Speech Clause in the First Amendment.

In 2016, the North Carolina Supreme Court declared something similar in State v Bishop. They explained that the cyberbullying law in North Carolina “sweeps far beyond the state’s legitimate interest in protecting the psychological health of minors.”

While these legal decisions are discouraging, there have been cyberbullying cases that led to criminal convictions. Though the conviction of Lori Drew—an adult woman who cyberbullied her daughter’s classmate, Megan Meier, and drove her to suicide—was eventually overturned, five teenagers were convicted and punished for cyberbullying Phoebe Prince to the point of suicide. In a more nationally recognized case, Michelle Carter was convicted of manslaughter after sending text messages to her online boyfriend, Conrad Roy, that encouraged him to kill himself.

As cyberbullying continues to have a pervasive presence on online platforms, this kind of case will continue to be seen—time and time again.

Stand up to Cyberbullying with Troomi

The rise of cyberbullying is one of the many safety concerns that fueled the founding of Troomi. Our safe smartphone empowers children to learn, do, and become anything—all while protecting them from digital dangers.

With expertly vetted KidSmart® Apps, no access to social media, an optional Internet browser with SafeListing™ capabilities, parent-approved contacts, and more, Troomi keeps your kids happy and healthy!

To learn more about how Troomi stops cyberbullying in its tracks, click here. To find out what laws or policies your state has in place, click here.