'Emoticon defense' in cyberbullying case

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“The legal analysis asks whether a reasonable person viewing the conversation would conclude that the girls were about to inflict imminent harm. I think the use of emoticons and other forms of Internet-speak are simply one factor demonstrating that that was not the case,” ACLU attorney Gavin Rose said in an e-mail.

Regina Webb, the mother of one of the classmates who was the target of the girls’ remarks, told The Associated Press on Friday she didn’t see any humor in the Facebook thread, which she printed out and provided to the middle school principal. Webb said her 14-year-old daughter, who is Facebook friends with the girls, was afraid to go to school for two days after the thread appeared. She said other students were whispering about her daughter.

“When they’re talking about putting someone in a bathtub of acid and lighting someone on fire … my daughter being the last person mentioned, I find nothing funny about that,” Webb said, calling the thread “disturbing.”

She noted the girls discussed whether it would be better to use a gun or a knife to kill someone, and how to cover up evidence. “I just think that goes a little beyond joking. To me, that is calculated, that has been thought about, that has been planned,” Webb said.

“We still see examples of students using emoticons like that even in actual cyberbullying cases,” said Justin Patchin, a criminal justice professor at theUniversity of Wisconsin-Eau Claireand co-director of the Cyberbullying Research Center. “My position is it doesn’t matter if they did use those emoticons. … It doesn’t matter if the intent was to joke around. … If we look at the content, would we be threatened by it?”

Griffith school district attorney Rhett Tauber declined to comment.

“Cyberbullying is the emotional harm, not that they’re going to kill you, but that they’re talking about it even in a joking way,” said Parry Aftab, an attorney and executive director of Wiredsafety.org, a children’s Internet safety group.

Patchin agreed. “It doesn’t necessarily take an actual threat for the school to get involved in disciplining the students,” he said. “If the target in this case didn’t feel safe to be at school, then the school has the authority to take action,” he added.

Neither Patchin nor Rose were aware of any previous cases where the use of emoticons was cited, though Aftab said she had encountered the strategy several times. Patchin did cite a 2000 Pennsylvania case in which the state Supreme Court upheld the expulsion of a student who created a website that featured a diagram depicting the decapitation of a teacher despite his insistence that the content was a joke.

Both Patchin and Aftab said another key issue was whether the school district overstepped its authority by penalizing students for off-campus, after-hours speech. The U.S. Supreme Courthas yet to issue a clear ruling on the boundaries of schools’ power to regulate students’ online speech, they said.

http://www.southbendtribune.com/news/sbt-20120429sbtmicha-01-05-20120429,0,4901089.story?track=rss

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