Tuesday, January 28, 2014

To those who believe Bullying is protected by Free Speech... read this, dumbass (oops.. my bad)

Recently I reported on an on-line bullying episode regarding a young mom from my community. Luckily, we were able to have this fictitious Facebook account removed, but once that particular head was cut off, several others popped up in their pace and the cyber bulling - still anonymously - continues. At this time, the victim still has no idea who her attacker is, or why they are so actively pursuing her. 

Though the above image is directed at the young girls mother, the sentiments all attack the girl.





Recently, cyberbullies were slapped with a lawsuit in Texas. Seven teens are being sued for libel, and their parents for negligence, for publicly humiliating a 16-year old female in a very public and vulgar manner via Instagram. While discussing this case, and the above harassment by "Kelli Johnstone," during an online debate, I was told repeatedly that 1) calling cyberbulling "libel" is a stretch and 2) it is the assailants right to free speech. As a person with a Paralegal education, I beg to differ.

First of all, this is the definition of Libel:



So, by maliciously calling someone names that they are not, in an effort to PUBLICLY humiliate, shame or tarnish their reputation, is libel. With the case of the Texas teen suing her classmates, their Instagram account had over 900 followers. That is a PUBLIC shaming site specifically designed to tarnish the reputation of a single person. This is libelous.


Second, is the right to Free Speech.



Most everyone is familiar with the First Amendment right to their freedom of speech: the right to speak freely on any subject without government restriction or penalties. But does that mean you can say anything and anybody?  Actually… no.

First of all, the broad term “speech” applies to verbal, nonverbal, visual and symbolic expression. Our forefathers wanted us to be able to speak our mind without penalty, but over the years expectations have risen when the government has decided the speech could cause substantial harm to the public. In determining whether free speech in a particular manner is allowed, the courts weight the importance of one’s free speech against the potential dangers if the speech is allowed. 

For example, speech that is offensive or unpopular are not reasons alone to suppress it. Actually, these are the very rights that NEED protection by the First Amendment.  And as a society, we have the right to turn our heads and walk away, because though we may find what they are saying to be offensive, ignorant or even nasty, it is THEIR opinion, and they have the right to shout their opinion to the rooftops. We have the right to refuse them an audience.

Although most of speech is protected under the First Amendment, there ARE exceptions, mainly speech that is defaming (includes libel and slander), obscene, “fighting words” that immediately breach the peace, words that cause panic (yelling “Fire!” in a movie theater, for instance), speech that spurs someone to act criminally, and speech that advocates overthrowing the government. 

In the case of cyberbulling, what we see most are defamation, libel and slander. Defamation is a broad term – meaning it’s speech that harms one’s reputation. When it’s written down, it’s libel. When it’s spoken, it’s slander. It’s a tough call for the courts, because it has to weigh one’s right to voice their opinion against a person’s right NOT to have someone run around, spreading rumors about them, or causing harm to one’s profession, reputation or image. It’s a difficult issue because when something is expressed as an opinion it’s protected (usually, not always), but when it’s stated as a fact, it can be considered defamation.
Laws differ state to state, but generally the victim must prove a) the statement was spoken or printed, b) they are false, c) they injured the victim in some way (including their reputation), and d) the victim suffered some type of injury, which includes mental anguish. The victim must also be a private citizen, as there are different regulations involving people who live their life in the public eye.

For example, spreading false rumors that someone has a sexually transmitted disease could be considered defamation, although the defamation would be much harder to prove if that person was a celebrity because it would have to be shown that the speaker was acting maliciously. This is why there are so few celebrity lawsuits against tabloids.

What are some examples of defamation?
Telling someone that another person has a sexually transmitted disease, and they do not.
Telling a person that their partner is cheating on them, when they are not.
An employer saying that their employee stole something, when they did not.
Claiming flies are in your food at a restaurant, when there was not.
Accusing a person of stealing your property, when they did not.
Accusing a person of sleeping with ___, when they did not.
Claiming someone is gay when they are not.
A co-worker accusing someone of being incompetent at their job, when they are not.
Spreading a rumor in school that a student is sleeping with a teacher, when they are not.
Claiming someone had an abortion, when they did not.
Starting a rumor that a person in school tried to kill themselves, when they did not.


As for the other non-protected speech, if a person uses lies to outrage a group, then their words may not just be defamation, but they also might be considered non-protected “fighting words.” An example of this might be Girl A spreads a rumor in school to Girl B that Girl C, the victim, is having sex with Girl B’s boyfriend. Girl B then targets girl C in a bullying rampage that includes other friends who gang up verbally on Girl C, when she, in fact, did nothing wrong. If Girl B and her friends then commit crimes against Girl C, such as vandalizing her vehicle, harassing her on-line, physically fighting, then Girl A’s freedom of speech is NOT protected. She incited others to act criminally, thus causing Girl C to become a victim.

So, in the below post that was publicly made and tagged so that it appeared on the victim's mothers Facebook page, what MIGHT be defamation?




"Hello. lol obviously she stresses spreading her legs over education." - can be perceived as libel, because it is stated as a fact.

The following sentence, "Be careful as these gals likely have a lot of diseases." is an opinion.

Now, since the cyberbulling has continued, though from another fake account, if it is proven to be the act of one single person (or one entity - meaning, the same group of girls), it could fall under yet another legal term and that is harassment: the act of systematic and/or continued unwanted and annoying actions of one party or a group, including threats and demands.

My point is, whenever a person is bullied and people chime in saying the bullies have the right to do what they want because it falls under their First Amendment Right of Free Speech, I will always beg to differ. Bullying is NOT a protected right. It is a crime.
Truth is, the VICTIM has more of a right to a life without hatred, false rumors, lies and aggressive harassment bombarding their daily lives. They shouldn't have to live with one person having power over their reputation, and they should be able to face their oppressor in a court of law.

So the next time someone says to you that a bully has the RIGHT to say what they want, and that it is a protected right, be sure to stand up and say that it's the VICTIM who has MORE of a right to NOT be bullied! That they need to read their Constitution. We may all have a right to say and do what we want, but there will still be consequences attached... as there should be.

As always, stay beautiful!

XXOO











Terri Jean is an Ohio writer, photographer, anti-bully activist, and Publisher/Editor-in-Chief of                        I Feel Delicious. She founded The Eye Candy Girls, a pinup model troupe, in 2008, encouraging -and empowering - women of all shapes, sizes, and styles "to feel delicious." Her 2003 book, 365 Days of Walking the Red Road, is available on Amazon.com.


1 comment:

  1. Part lies in the awareness that some far-out minority may hit upon the truth a truth postponed or forever lost by its suppression. One of the saddest realities is that we never know when our lives are at their peak. Only after it is over and we have some kind of perspective do we realize how good we had it a day. Don't let your child be one of the victim save and participate bring protection with you you are responsible with your own protection check this out at http://safekidzone.com/#!/page_home.

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