When Is Free Speech Cyber Bullying? South Florida Cyber Crime Defense Lawyer Asks

February 12, 2009 by David S. Seltzer

As a Miami cyber crimes defense attorney, I was interested to see a New York Times article from Saturday about a case of possible cyber bullying right here in South Florida. According to the newspaper, University of Florida freshman Katherine Evans got in trouble last year for “cyber bullying” her English teacher at Pembroke Pines Charter High School. Evans, a former honors student, didn’t like the way the teacher responded when she asked for help, or the rebuke she got for missing class once during a school blood drive. In response, she went to social networking Web site Facebook and wrote a post denouncing the teacher’s “insane antics,” then offered it as “the place to express your feelings of hatred” for the teacher.

Evans took her post down after a few days -- but was called into the principal’s office two months later and suspended for cyber bullying. She is now suing to have the suspension removed from her record, saying she’s concerned about how it could affect her future. Evans’ attorney in the case says her post was protected free speech, but an administrator for the Broward County School District said inviting students to say they hate a teacher crosses a line comparable to verbal threats or assault.

If that’s so, Evans might be vulnerable to criminal harassment or threat charges in Florida. Florida has no law against cyber bullying, but it prohibits threats in verbal or written form, as well as cyber stalking. However, as a Fort Lauderdale cyber crimes defense lawyer, I wonder if the behavior Evans is accused of would actually qualify as cyber bullying.

Generally speaking, cyber bullying laws in other states define cyber bullying as using the Internet or other electronic communications to intentionally inflict emotional harm on someone else. In many cases, it must be done repeatedly or consistently. In short, it’s the same bullying behavior that’s always gone on in schools -- just transferred to the Internet. Indeed, most of these laws rely on school administrators to find and punish the behavior, but a few authorize criminal charges. Missouri, the home of the highly publicized Megan Meier case, makes cyber bullying a felony carrying up to four years in prison.

That’s a high price to pay for a moment of frustration -- much higher than the three-day suspension Evans received. Her Facebook post could clearly have inflicted emotional harm on her teacher -- but in the physical world, it’s unlikely that it would have been interpreted as bullying. As an attorney for the American Civil Liberties Union told the newspaper, her comments would have been protected speech, and possibly forgotten about by now, if they had been made in person. It’s not for a South Florida cyber crimes defense attorney to second-guess the actions of school administrators, but I believe that criminal cyber bullying charges would have been inappropriate for this case.