Cyberbullies face few consequences

Because of free-speech protections and the anonymity of the Internet, victims of cyberbullying have little recourse in the form of law or policy. For law enforcement to become involved, the harassment needs to rise (or sink) to the level of terroristic threats. "You have to threaten a crime of violence directly and do so in a manner that is either with intent to terrorize or in reckless disregard of terrorizing," said Pete Cahill, chief deputy attorney for Hennepin County, Minn.

"It's not enough to say, 'I'm going to kill you,' as an offhand comment. It has to be done with the intent or reckless disregard that is almost intentional knowledge that it will terrorize the person."

Taunting and calling names are not crimes, he said.

Two teenage girls from South Brunswick, N.J., were charged last month with assault and harassment for allegedly threatening and assaulting another girl and for recording and disseminating the resulting video by e-mail and on several Web sites, including YouTube, MySpace and Google Video. The sites cooperated in having the video taken down, but it has reappeared online. The two face school suspension and will be tried in family court.

Minnesota Attorney General Lori Swanson hopes to pack more punch against cyberbullies by changing the definition of harassment and removing the requirement for repeated incidents. "Now, harassment takes more than one instance," she said. "If it's over the Internet, how do you measure just one instance?"

The proposal also could apply identity theft laws to bullies who create Web sites and send e-mails in other kids' names.

Few cyberbullying cases have gone to civil court, and none has proceeded all the way to the damages phase. That lack of legal precedent makes reaction of a judge and jury difficult to predict.

Schools also are limited by questions of jurisdiction, although cyberbullying sometimes draws discipline via existing antibullying policies. Many schools require students to sign a responsible-use contract to use district equipment, and many use filtering software that blocks sites such as MySpace, so much of the hostile speech originates off-campus, although its effects seep into the classroom.

The 1969 case Tinker v. Des Moines, generally considered the hallmark of school freedom of expression cases, requires schools to show that the offensive speech "materially and substantially interfered with the requirements of appropriate discipline in the operation of the school."

While schools can dispense harsh consequences for off-campus behavior such as drinking or carrying weapons, speech is a different animal entirely.

"Kids don't have a right to drink or do drugs, but their right to speech is protected by the First Amendment," said Scott McLeod, director of the Center for the Advanced Study of Technological Leadership in Education. "If we're going to intrude upon that very protected right, we have to have a very good reason."