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New Jersey Employment, School Harassment, School Discrimination and Civil Rights Attorney Discusses Cyber Bullying and the Law

I recently served as a panelist on a "Cyber Bullying" panel for our local bar association. It got me to thinking that this is a timely topic for the Journey to Justice. There's so much to say about this that I'm going to have to guard against being too wordy. I want to make my point, give you as the reader a bit of law, and a bit of a perspective, but not over-talk it.

But it's me, so I probably will.

First of all, I do hate the internet. I really do. Not utterly, and completely, but a lot. I've gotten to a point in my life where I suppose I'm old enough to have deep empathy with my parents' generation and what they must have hated when I was a kid, when I wasn't paying close attention to how foreign my "kid-times" must have seemed to people born at the turn of the 20th century. Seems to me that each generation has a couple of well-loved "hates" of "these times" and there's no getting around that.

I get that the internet is useful. I do. I get that it's necessary. I get that, as a civil rights attorney especially, we can't start invading the internet with all sorts of "big brother" and other regulation that stifles free speech. I get all that. But I hate what it's done to our society, at least as I see it, and specifically, how it's perfect in enabling cyber bullying, the new frontier of interpersonal abuse without interpersonal accountability.

Human beings took a long time to evolve. All life does. We - and our many strains of failed,, near-human ancestors - "baked" in the cauldron of evolutionary pressure for a hell of a long time. Millions of years, in fact, back to the Ardopithecus, 4.4 or so millions of years back. Yet those eight or so pre-human strains didn't "make it" because, among other things, they lacked the sort of "social glue" that made our species successful. Make no mistake about it; we're not successful because we're smart, though we certainly are smart, smarter than all those other strains. But smarts doesn't stop you from being killed by the saber tooth, by the weather, by natural disasters, injury, starvation or sickness. It doesn't keep you alive long enough to breed increasing numbers for your species. What does all of that is associating with others peacefully enough to offer mutual protection, comfort and, eventually, differentiation of responsibilities. Put bluntly, humans form communities and that's why we've survived. And thrived.

It took, depending on which anthropological school of thought you subscribe to, about 4.4 million years for us to refine our "society." Compared to that length of time, it's only been an "eye-blink" of time - about 10,000 years now - for us to go from an entirely pre-historic hunter-gatherer to a space-faring, cosmologically thinking, self-aware race.

Yet in that 10,000 years, we've spent about 9,980 of it - about 99% of it - relating, pretty much, the same way.

Think about that. From the earliest husbanding of grain, all the way to Seattle grunge-rock, interpersonal communication has been either written letters - which take time to write and which you can crumple up and start over before you mail them - or has been "face-to-face."

Think about again, and realize, with a terrible shudder, how things have changed since the invention of the internet. People who first planted a crop and built cities with adobe bricks had just the same two options for personal communication that a fan watching a Nirvana concert had.

This is no accident. Everything else changed over that time. We developed better ways to do things. Wheels. Irrigation. Math. Astronomy. Transportation. Science. Even religion got more complex. We constantly changed the way our societies lived, worked, made and stored - and distributed - food and wealth, hell, even worshiped.

But we never could get around the need to face one to whom one wanted to communicate, unless one wrote it down. Which also took time, and which allowed some repose. There was no instantaneous communication which was on a mass scale available.

This is how we were evolved to succeed. When human beings communicate, we communicate in an unconscious way as much as, or more, than with the spoken word. This was true even more in ancient civilizations than it is now, and it's still true now far more often than it's not. We need, as healthy human beings, to be able to unconsciously read expressions, body language, tone, etc. It's no accident that the face recruits so many muscles to smile or frown. The subtlety of human expression is what separates award winning actors from mundane actors and moments of highest drama and art from moments of sheer indulgent creativity. At the end of the day, unspoken and unconscious communication occurs between humans all the time, and it's critically necessary to the proper functioning of our society. Without it, society starts to breakdown.

And as it happens, society is starting to breakdown. The internet is the root cause. I understand that all of the tech people reading this out there are going to throw their hands up, sneer at the "grumpy old man" and pronounce me stodgy, anti-tech, angry, ignorant and who knows what else? They're all entitled to their opinion, and they're right. I'm all that stuff, but it doesn't mean I'm wrong.

When we remove the unspoken, unconscious features of communication and relegate our communication only to instant texts, tweets, emails, Facebook postings, etc., we're creating a witches' brew of danger. We're removing nearly all the safeguards that prevent us from saying the things that're going to hurt other people because we no longer have to account for the presence of that person when we say those things. We don't have to watch their pain. We don't have to anticipate our own pain at having to see what we've caused. This gives us the ability to instantly gratify ourselves to a mass audience on the one hand, but do so without any accountability, or at least, with only delayed accountability, on the other. I loathe social media for this reason, even though I know that in order for people to find my firm, social media must be involved.

"Cyber bullying" is the horrible afterbirth of social media and the internet. It's far more widespread than actual physical bullying precisely because the bullies don't have to account for their victims' response when they undertake their bullying. It's easier to be a bully. They don't have to see the pain that they're causing, so none of the social safeguards that human beings have evolved that would prevent the bully from acting in first place, operate. Are there still kids that are angry or hurt enough, in pain enough, to bully, no matter whether the internet is there or not? Sure. Our society produces those bullies and we have to deal with the treatment of those bullies and the treatment of the root causes of what makes them do what they do. It's always been that way, and it always will be, net or no net.

But there are far more cyber bullies that really wouldn't be bullies if the internet didn't exist than would be bullies regardless of whether or not it existed. That's the problem that we have to address.

I won't bore you with all the case names and citations except to tell you that a clear tradition of both state and federal law does require that schools act to stop cyber bullying that creates a "disruption" in the school environment, even when the cyber bullying takes place off of school grounds or from the privacy of one's home computer or cell phone. School officials that claim they don't have this obligation have not read the law (or they don't have an attorney who has). The law is clear that when the cyber bullying conduct is disruptive, the school has a duty to investigate, even when the cyber-bullying takes place off school grounds and/or from private, non-school-owned or issued devices.

Cyber bullying at that moment is no different than any other bullying. Putting the "cyber bully" and the victim in the same room and just telling them to work out their differences isn't going to work. It's going to involve more cyber bullying retribution and more pain caused for "tattling" and being a "snitch" (and there are worse words used) than was even the case before.

Unfortunately, there are always more victims than bullies, and cyber bullies unfortunately recruit other bullies who don't even want to be bullies but who don't want to be left out of the social power struggle that's obviously going on. The cutting and pasting of pornographic material to faces, the "flaming" that goes on with social media, all of this requires that other people "chime in" with their own instantaneous - and therefore easy and without accountability - thoughts, people who wouldn't be bullies themselves and who aren't really bullies at all, but who are siding with the bullies as their "toadies" because they don't want to side with the victim and be part of the targeted group. Of course, as it was easier for the bully to bully because of the lack of personal accountability, it's easier for others to aid the bully because their "like this" and other insipid and stupid little comments are just "having fun and socializing," not really bullying, not the way it would be if they stood in a ring around the bully and his beaten victim.

Therefore, bullying not only victimizes the bully first, and the victims second, it also recruits people into the bullying as the participating audience on a far wider scale than these kids would be comfortable with if they were invited to stand around while the physical bully pummels his victim. Fewer kids would "root" for the bully in that situation than "chime in" with their own tweets, flames and other moronic comments on social media.

As far as I'm concerned, my son is not touching social media until he leaves my home and runs his own life. I'm going to discourage young people from using social media inappropriately, but I'm going to be a pebble in the stream. Unfortunately, social media has become necessary for commerce, and so many teachers and schools use social media in order to convey homework assignments, grade papers, etc., that it's a hopeless cause. Bullies do what they do because there's something missing in their lives that makes them angry and isolated which is soothed, only temporarily, when they act out against others. That root cause has to be removed in addition to punished if the bully is to be "cured" in addition to deterred, but deterred and punished he still must be, and can be, under the law.

Even when he cybers from home, even though we have a 1st Amendment.

If we don't fix this, and I'm not kidding, social media is going to destroy every industrialized civilization of which it's a part. It's going to make "the new normal" the entirely and biologically abnormal situation of non-face-to-face communication, which will lead to misunderstandings, conflict and pain on a far more massive scale, social, physical and other types of isolationism, and eventually, the breakdown of any communal effort to solve problems technologically, socially, legally or societally.

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