The First Amendment Center reported earlier this year that a fourteen-year-old Atlanta girl named Alex Boston is suing two of her classmates for libel, in connection with an instance of cyberbullying on Facebook. In this column, I’ll consider the pros and cons of using libel law to fight cyberbullying. (My fellow Justia columnist John Dean has also explored other possible cyberbullying remedies in a recent column, in connection with proposed New York legislation.)
The Facts of Alex’s Case, and Why It Proved Difficult
The First Amendment Center describes what happened to Alex as follows: “The [fake Facebook] page [set up in Alex’s name] suggested Alex smoked marijuana and spoke a made-up language called ‘Retardish.’ It was also set up to appear that Alex had left obscene comments on other friends’ pages, made frequent sexual references and posted a racist video. The creators also are accused of posting derogatory messages about Alex.”
Alex’s situation largely escaped ordinary channels of judicial intervention. First, as the First Amendment Center noted, there was no suitable criminal law on which to prosecute the student culprits. Further, prosecutors are rightly wary to seek to criminalize any speech, even obviously hurtful speech.
Second, school computers were not used in the cyberbullying, so there was no nexus between the bullying and the school. Had school computers been used, the school could have punished the speech and related conduct that occurred on its premises, or in connection with school activities.
When, as here, the misconduct occurs off-campus, the Supreme Court has not resolved the issue of what the constitutional rules should be. For instance, the “Bong Hits for Jesus” case, Morse v. Frederick, resolved by the Court in favor of the school, arguably did not involve true off-campus student speech, as the students were on a school-sponsored field trip during the school day. Thus, the Court did not reach the issue there.
I’ve written earlier about the Kowalski and Layshock lower-court cases, which involved true off-campus speech. Kowalski sought Supreme Court review but did not receive it. It seems inevitable that the Court will eventually take an off-campus school-related speech case, but for now, the Court’s approach seems to be simply to allow such cases to percolate in the lower courts, with various judicial approaches being employed. My guess, though, is that the Court may accept such a case within the next five to seven years or so.
What makes off-campus school speech cases very difficult, I believe, is that content-based speech regulation is especially disfavored, under First Amendment jurisprudence, and yet the only way to tie off-campus student speech to the school is by looking at that speech’s content.
With schools wary to punish off-campus speech—and rightly so, given constitutional protections, hallowed free speech traditions, and the Supreme Court’s decision not to currently address the topic—is a libel suit like the one Alex Boston filed a viable alternative option?
Libel is defined as a false statement of fact, made with the requisite state of mind (either negligence or actual malice, with the latter being defined as either knowing falsity or reckless disregard for truth or falsity) that causes damage.
Here, damages may be a very difficult issue, for reasons I’ll now explain:
The group of girls who perpetrated the cyberbullying seems to have been a tight-knit group of friends, one that recently had included Alex herself. Indeed, Alex was upset, as she said in connection with the incident, and as the First Amendment Center reported, “that my friends would turn on me like that.” But in tight-knit groups, the truth will quickly out. The members of that group surely know full well that what they said was untrue. Thus, damages likely cannot be predicated on any of the group of girls believing the lies they themselves told.
Thus, the interesting question here is whether any other students, outside of that tight-knit group, believed that the offensive postings at issue really were Alex’s. I seriously doubt that they did, as it seems that such conduct would have represented a complete and total personality change on Alex’s part, given the extreme and offensive nature of what was posted. Even fourteen-year-olds surely know that a classmate’s personality does not completely change in a short period of time, such that a once-normal person is suddenly posting highly offensive material.
Because of the apparent lack of reputational damages here, the better claim might have simply been a claim for intentional infliction of emotional distress (IIED). The fit is obvious: Alex’s horrible former friends meant to hurt her with their Facebook page and postings, and they clearly did so. Although conduct must be outrageous to support an IIED claim, this is the rare case where the outrageousness requirement might well be satisfied.
With Schools Possibly Unable to Constitutionally Punish Off-Campus Student Speech, Should Bullied Students Invoke Libel Law?
Although Alex Boston’s libel claim seems weak, that may not be the case for other cyberbullied students who, unlike Alex, face claims that seem credible to outsiders, but prove to be false.
Imagine that—rather than mounting their all-out assault on Alex, which only the most credulous student could have possibly believed to be authored by Alex herself– Alex’s former friends had, say, only claimed that Alex smoked marijuana.
In the real Alex Boston case, I believe the obvious lack of any credibility for the other accusations against Alex also meant that no reasonable person could have credited the marijuana accusation as true. In the context of the numerous far-fetched allegations that the girls made against Alex, the marijuana allegation would, I believe, have been understood by the Facebook page’s young readers as just one more lie in a truckload of malarkey. But, in contrast, a lone claim of marijuana smoking could well have been widely believed.
Moreover, in terms of litigation strategy, it might be most effective for Alex’s legal team to focus on the marijuana allegation alone. Under black-letter law, that allegation is obviously and classically defamatory.
And while I—as a commentator trying to make the best call I can—can say that, in my opinion, readers of the fake Facebook page would likely have dismissed it all (including the marijuana claim) as ridiculous, it would be hard for the defendants’ attorney to get up in court and say the same.
After all, a defense lawyer who made that argument might well seem to be minimizing what is, in isolation, a clearly defamatory and very hurtful statement about a fourteen-year-old girl who surely went through a terrible time when her friends all turned on her.
Beyond Alex Boston’s Case, What Else Should Possible Defamation Plaintiffs in Other Cyberbullying Cases Know, and Do?
Going beyond Alex Boston’s case, more generally, what should parents and kids know before deciding to file a defamation case arising out of cyberbullying? One important thing to keep in mind is that defamation law has certain clear limits.
In a defamation case, the statement at issue needs to be fact, not opinion. So, sad as it is to say, even the meanest and most offensive Facebook opinions about a fellow students’ appearance or the way he or she speaks should be assumed for now to be First Amendment-protected, no matter how hurtful they may be—unless and until the Supreme Court rules otherwise.
“Rhetorical hyperbole” also cannot be the basis of a defamation claim. And that rule might, for instance, doom a legal action based on the claim that Alex Boston “speaks a language called ‘Retardish.’” The student who wrote this was obviously trying to mock the way Alex speaks, or to simply make up a random insult about Alex. But she did so in a highly rhetorical, not a factual, way—and thus in a First-Amendment-protected way.
Here, in Alex’s case, the comment at issue not only fits into the protection for rhetorical hyperbole, but also is unlikely to cause any damage. No one really will believe, reading those words, that Alex does in fact speak a language called “Retardish.” And without people holding such a belief, there can be no damage.
One might suggest that the “Retardish” comment does insinuate, at least, that Alex is less than bright, and that some students, hearing that comment, might conclude as much. But libel law requires a false statement of fact; insinuations are not enough. Of course, insinuations can hurt, but libel law has largely confined itself to words themselves, and not their possible connotations, in order to set clear limits as to what, exactly, can be sued upon.
It’s especially important for bullied kids and their parents to be aware of possible Anti-SLAPP statutes that could cause their libel cases to boomerang on them, so that the plaintiff, not the defendant, ends up being the one to pay—specifically, to pay the defendants’ attorneys’ fees and costs. The details of such statutes vary state by state.
SLAPP is an acronym for “Strategic Litigation Against Public Participation, and the statutes were passed by states that believed that litigation was being used merely or predominantly to silence opponents in various disputes, and thus chilling their ability to exercise their First Amendment rights. While the reasons that Anti-SLAPP statutes were passed had nothing to do with cyberbullying, such statutes may be broadly written and might possibly apply—again, depending on the relevant state’s particular statute.
Good News for Bullied Kids: Kids Can Sue on Their Own If Needed
Finally, it may be important for some bullied teens to know that they can sue on their own if needed, without parental consent, alleging defamation, intentional infliction of emotional distress and/or, if applicable, other, more physical torts. While requirements vary between states, teens will likely need a guardian ad litem (GAL) to file suit. The GAL generally does not need to be one’s parent. The teen’s lawyer may suggest a GAL or the court may appoint one.
Here, I am thinking especially of teens with parents who do not want to participate in litigation that the teen very much wants to bring. For instance, this could be an issue for GLBTQ teens whose parents are not supportive of their sexual orientation. Such teens experience very high rates of bullying with almost 9 of 10 reportedly victimized at some time.
Of course, it is far, far preferable for a teen to have parental support in any suit he or she might bring, but it’s also worth the teen’s knowing that at least the option to go it alone, with the help of a GAL, is out there.
I would expect this eventuality—that is, the appointment of a guardian who is not the parent—to happen only in very extreme circumstances. For instance, it might occur in a situation where a gay teen has virulently homophobic parents who oppose a suit, but the teen is being brutally and constantly bullied.
This approach has obvious risks and drawbacks, particularly relating to the teen’s relationship with his or her parents, but it’s worth knowing about the option. Possibly a favorite teacher or other trusted adult could accept the GAL position, and help the teen connect to GLBTQ public interest groups who might help litigate, or help fund litigation. But again, teens may want to proceed with caution.
In conclusion, I believe that the most important aspect of Alex Boston’s case is that she is sticking up for herself in the face of cowardly and despicable bullying. Although I have identified some possible weaknesses in Alex’s case in this column, I admire her courage and perseverance, and that of her parents, and I hope that Alex’s courageous decision to file her suit and thus make her bullying story public encourages other teens to do the same.