Should “Cyberbullying” be a crime in Texas?

By: Leslie Barrows August 26, 2016 no comments

Should “Cyberbullying” be a crime in Texas?


The First Amendment to the United States Constitution prohibits the making of any law respecting an establishment of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble, or prohibiting the petitioning for a governmental redress of grievances. Since its adoption on December 15, 1791, legal opinions interpreting the First Amendment identify freedom of speech in several forms in addition to spoken words. From speaking, to writing to the message on an article of clothing, there are many forms of protected speech.

As well as there are many forms of free speech, there are exceptions to the prohibition against free speech. Yelling “Fire” in a public place, inciting a riot, making false statements of fact, obscenity, fighting words and offensive speech in certain contexts have historically been held as speech not protected by the First Amendment. In fact, there are times in U.S. history, particularly following World War I, when speech critical of the U.S. government and speech aligned with enemy governments and groups was certainly not protected speech.

In current times and with the rise of technology, millions of Texans use social media and text messaging to communicate and express themselves. While many proclaim, “I’ll say what I want, and it’s my First Amendment right,” others disagree and want new laws limiting free speech in the context of “Cyberbullying.”

Texas Senator, Jose Menendez[i], wants a law protecting against online bullying, a law that could limit First Amendment rights to free speech.

The proposed legislation is called “David’s Law,” named after a 16-year-old boy who committed suicide earlier this year. David was bullied online. While many adults grew up learning the phrase, “sticks and stones may break my bones, but words will never hurt me,” many children today were raised in a climate of “political correctness” where words hurt more than ever.

The technology available to bullies today is notably compelling compared to that in past generations. Where bulling used to be more of a one-on-one or small group experience, today the bully can take pictures, record videos, make memes and otherwise launch a media attack on another child. Imagine how difficult this is for adults in politics, now consider the opportunity for a child to respond and say that “words don’t hurt.”

The scope of Senator Menendez’ bill is limited to the acts of electronic harassing or bullying anyone under the age of 18 through text messages, social media, websites or apps. A violation of the law would be a misdemeanor.

Balancing protection of students with free speech requires we remember, these are kids.

Students learning civics in school understand they have rights. What they do not necessarily understand is the notion that while they have rights, they have a children’s version and do not have a full set of rights until they reach adulthood.

The U.S. Supreme Court has ruled on the boundaries of free speech and similarly to the exception in which you may not yell “fire” in a crowded theater, and you cannot make threats against another person’s life and defended it as free speech, maybe engaging in cyberbullying against a minor should also be an exception to the right of free speech. According to the Cyberbullying Research Center[ii], 17 states in the U.S. have made cyberbullying a crime, not protected by the First Amendment.

Will Cyberbullying laws stand up to constitutional scrutiny and slippery slope challenges?

While the U.S. Supreme Court has ruled on cases involving free speech and conduct giving rise to the finding of an exception to the right of free speech, the issue of cyberbullying has not been addressed by the high court.

A challenge may be in defining exactly what speech and conduct gives rise to cyberbullying and how it is defined as a crime. This is similar to obscenity laws and the challenge in determining what is obscene based on community standards versus what some may say is art or free speech.

Additional questions are those of precedent. If the U.S. Supreme Court makes cyberbullying a crime, how expansive will the range of conduct be which gives rise to a criminal charge? Will offended adults in the workplace seek similar protections? Will there be time, place and manner restrictions on cyberbullying?

So long as communication technologies continue progressing, there will be challenges for parents, teachers and children with competing ideas, values and cultures. As legislation affecting Texas families is debated, The Barrows Firm will share available information and ask the questions to which we may be far from answers.

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[i] Senator Jose Menendez serves Texas Senate District 26, located in Bexar County.

[ii] Cyberbullying Research Center, search: “Laws”

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