Facebook, Freedom of Speech, Defamation, and Cyberbullying

Cases1. Facebook, Freedom of Speech, Defamation, and CyberbullyingIn February 2009, Oceanside High School graduate Denise Finkel sued Facebook, four formerclassmates, and their parents for false and defamatory statements made against her.52 Theclassmates, part of a private Facebook group called “90 Cents Short of a Dollar,” had postedcomments to a password-protected page alleging that Finkel used intravenous drugs, had AIDS,and had engaged in inappropriate sexual behavior.53Many legal commentators found the case surprising. Why would an attorney sue Facebook,when the company is obviously protected by Section 230 of the Communications Decency Act(CDA)? The CDA protects Web site owners from liability for content posted by a third party.Thus, Facebook should be immune from defamation lawsuits that arise from user-postedcontent.54 However, Finkel claimed that Facebook’s Terms of Use agreement establishedFacebook’s proprietary rights to the site’s content. In support of this argument, she pointed tothe following clause in the agreement: “All content on the site … [is] the proprietary propertyof the Company, its users or licensors with all rights reserved.”55 As a result of this uniqueargument, the case attracted national attention because the consequences of the ruling couldhave serious implications for other social media sites. In September 2009, however, theSupreme Court of New York ruled that the Terms of Use did not disqualify Facebook fromimmunity under the CDA.56This ruling provoked commentary by legal professionals, but no one was very surprised.What was less predictable was whether or not the court would hold Finkel’s classmates liable.To what extent do students have the right to exercise their freedom of speech through socialmedia outlets and on the Internet? What restrictions have been placed on this freedom?In July 201 0, the New York Supreme Court dismissed the case against Finkel’s formerclassmates. The court determined that teenage members of the “90 Cents Short of a Dollar”Facebook group had simply acted childishly and were not guilty of defamation.57 Finkel did nothave any recourse against her former classmates via an antibullying statute because althoughthe state of New York has a law prohibiting bullying, it only prohibits bullying on schoolproperty.The law does not apply to cyberbullying. Furthermore, the law merely requires that the schoolstake disciplinary action, and it does not provide for criminal sanctions.58In 1 969, in a landmark case, Tinker v. Des Moines School District, the U.S. Supreme Courtestablished that public schools cannot curtail students’ freedom of speech unless this speechwould cause a substantial disruption to school activities or violate the rights of other students.59Hence, a federal judge overturned the suspension of a high school senior who created a fakeMySpace profile of his principal; the profile said the principal took drugs and kept alcohol at hisdesk. However, in a similar case, a U.S. district court ruled against a Pennsylvania junior highstudent who had created a fake MySpace profile of her principal claiming that he was a sexaddict and a pedophile. She had been suspended for 1 0 days, and her parents sued the school.Teachers at the school, however, testified that the profile had caused a disruption in classbecause students were too busy talking about the profile to pay attention in class. The courtdetermined that the talking had constituted a “substantial disruption.” Both of these decisionswere upheld on appeal in February 201 0.60Many states have recently enacted bullying laws that restrict written and symbolic speechon social media sites. In 2005, a Florida honors student committed suicide after three years ofteasing at school and online bullying. As a result, in 2008, the state enacted a tough law calledthe “Jeffrey Johnston Stand Up for All Students Act.” 61 The law prohibits the teasing; socialexclusion; threat; intimidation; stalking; sexual, religious, or racial harassment; or publichumilia-tion of any public school student or employee on or offline. The law is limited in that itonly applies to behavior during school, on a school bus, during any school-related or schoolsponsored program or activity, or from computers that are part of a K–1 2 system.62In January 201 1 , two Florida teenagers, Taylor Wynn and McKenzie Barker, were arrestedfor allegedly setting up a false Facebook account for a classmate that included nude photos.The teenage girls are accused of doctoring photographs, placing the classmate’s face on thebodies of naked men and women, and posting them to the site. Although the victim told theschool resource officer that the teasing would eventually “go away,” a parent of another studentnotified authorities. Investigators traced the IP addresses to Wynn and Barker and collectedincriminating text messages and emails linking them to the false Facebook page. Wynn andBarker were charged with stalking a minor under the new Jeffrey Johnston Stand Up for AllStudents Act.63On January 1 9, 201 1 , 1 4-year old Kameron Jacobsen, a freshman at Monroe-WoodburyHigh School in Orange County, New York, committed suicide after being taunted on Facebookfor his supposed sexual orientation.64Although freedom of speech is a right guaranteed by the U.S. Constitution, it can berestricted where it violates the other rights of individuals—as established by state or federallaws. To date, 31 states have antibullying laws that include electronic forms of bullying.

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