Brody's Notes... Court Rules Cyber-Gay Bashing Not Protected Free Speech

By Brody Levesque (Washington DC) Mar 17 | The California State 2nd District Court of Appeals in Los Angeles ruled that students at Harvard-Westlake School who posted death threats and anti-gay messages on the Internet site of a 15-year-old classmate can't claim the constitutional First Amendment protection.

 In a 2-1 ruling Monday, the court said the violent language of the message - threatening to "rip out your ... heart and feed it to you" and to "pound your head in with an ice pick" - conveyed a harmful intent that is not protected by the right of free speech. Dissenting was justice, Frances Rothschild, who wrote that no one who read all the messages posted on the Web site - in which youths tried to outdo the others in outrageous insults - would interpret any of them as a serious threat. This ruling upholds an earlier decision by the Los Angeles Superior Court. 

The parents of the boy targeted by the threatening and derogatory posts on his website withdrew him from Harvard-Westlake School and moved to Northern California to protect him from classmates who had incorrectly labeled him as gay and pronounced him "wanted dead or alive," the boy's father said in a lawsuit brought against six students and their parents.  

Although the Los Angeles Police Department detective who initially investigated the hostile website postings and the district attorney have declined to press charges against the students, the decision will allow the family of the cyber-bullied boy to move forward with their suit against the students for alleged hate crimes. The case is one of the first in California to examine the boundaries between free expression and so-called cyber-bullying.

The plaintiff, identified only as D.C., set up a Web site in 2005 to promote an entertainment career after recording an album and starring in a film. Believing - wrongly, the court said - that he was gay, some fellow students at the Los Angeles high school posted comments that mocked him, feigned sexual interest or threatened violence. 

The boy's father said he withdrew D.C. from the school, at the suggestion of Los Angeles police, and moved the family to an undisclosed spot in Northern California. D.C. sued six students and their parents, claiming hate crimes, defamation and intentional infliction of emotional distress.

The ruling involved a claim by one defendant, a 16-year-old identified as R.R., that the suit interfered with his freedom of speech. In a court filing, R.R. said he didn't know D.C. personally but was offended by the Web site's self-promotional tone and "decided to add my own message to the Internet graffiti contest," posing as a parent who was so offended by D.C.'s singing that he wanted to kill him. He later wrote a letter of apology to D.C. and his family.

California law allows a defendant to win early dismissal of a suit that chills free speech on a subject of public interest and has little chance of success. The court majority said the law didn't apply to D.C.'s suit because R.R.'s message contained threats and was unrelated to any issues of public interest.  Rex Beaber, lawyer for R.R. and his parents, said Tuesday that he would appeal to the state Supreme Court. 

"No reasonable person could have interpreted the message as a serious threat, he said, and the ruling "undermines the First Amendment protection for unpopular speech."

According to Cyberbullying experts with the United States Department of Justice & The  National Crime Prevention Council,  Cyberbullying is a threat that can be insidious and difficult to manage or prosecute. Given that the bullying is conducted online and via cell phone technology, it is difficult for law enforcement to track. But cyberbullying has proven dangerous, as teens have committed suicide after enduring attacks via high-tech channels.  

The Facts:

1. Cyberbullying is defined as bullying that takes place outside the usual realm of face-to-face contact. Perpetrators bully via text messages on a cell phone, or through online contact. The official definition includes this specific notation: "[It is] when the Internet, cell phone or other devices are used to send or post text or images intended to hurt or embarrass another person."
2. Cyberbullying has become a significant problem around the world. Many studies conducted in the United States show trends toward cyberbullying and increased problems that result from this type of bullying. A study performed by I-safe.org showed that more than 40 percent of kids in grades 4 to 8 reported being bullied online, and about 35 percent have been threatened online. Researchers believe that cyberbullying has largely taken the place of more traditional bullying.
3. The hallmark of cyberbullying is the lack of face-to-face contact. Most often it occurs online, but some kids have reported being bullied via text message or through messages left on their cell phones. Many experts believe that the rise of cyberbullying has occurred because the anonymity of the contact allows for more hurtful behavior. In addition, it is believed that bullies are able to act more freely because often kids are not monitored online, allowing them to post hurtful messages freely without parents or other adults knowing.
4. The effect of cyberbullying is devastating for some children and families. There have been several reported suicides as a result of cyberbullying, as well as other effects. These include lower self-esteem, anger, frustration and avoidance of friends and normal activities. Even more disturbing to researchers is the fact that children bullied in this fashion are less likely to report it to adults, but instead suffer in silence.