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Social Media Threats Case Heard By Supreme Court - Implications for Schools

By .(JavaScript must be enabled to view this email address) on December 04, 2014

Social Media Threats Case Heard By Supreme Court - Implications for Schools

 

The Elonis v. United States case is bringing increased attention to the already complicated question of how to deal with school threats made on social media. The case, which is before the Supreme Court, involves a 27-year-old man who made threatening comments on Facebook about shooting up an elementary school. The specific question before the Court is whether, when someone is prosecuted for making threatening statements, the government should be required to prove that that person intended his words to be taken as a threat. The crux of the issue is whether one should have to prove a subjective element (that the speaker intended his words to be taken as a threat) or merely an objective element (that a reasonable listener would have understood the words as a threat -- a much lower burden). Proponents of free speech argue that "proof of subjective intent is required to ensure that protected speech is not chilled by the fear of criminal prosecution" (ACLU).

How the Supreme Court decides this case will have broad implications for how school administrators address threats made by students on social media outlets and impact how youth are treated when accused of such conduct.

Regardless of what standard of proof the Court deems appropriate, however, any standard that allows us to criminalize youth for their behavior on social media will likely do more harm than good. For this reason, although working to protect free speech is vitally important, when it comes to this kind of behavior by youth, arguing over whether the objective or subjective standard is appropriate misses the true issue at hand: how can we best prevent this type of behavior from occurring and work to remedy its harm as effectively as possible. 

Countless studies and data show that criminalizing cyber-bullying will not decrease bullying and will instead cause a less satisfactory school climate for all students, as well as significant harm to those students labeled "bullies," including perpetuating the school-to-prison-pipeline[1] (for a more detailed discussion of the issue of criminalizing cyber-bullying, see: New York's Cyber-Bullying Law Struck Down http://conta.cc/1vxFtzM). Similarly, the answer to dealing with school threats on social media should not be to put kids in jail. Instead, we should be focusing on prevention.

NSCC has been supporting prevention efforts specific to such social media concerns through our school climate measurement work and the creation of a new dimension that provides schools with data on the perceptions about social media behavior from key stakeholder groups - parents, students, staff - directly. In this way, we are able to support a more meaningful dialogue within the school community about how social media is being used - positively or negatively - and what can be done to promote online behavior that reinforces their core values and codes of conduct in all areas of school life. Ultimately, when schools are equipped with the right information, they can be more effective in prevention efforts related to mean, cruel or potentially harmful behaviors before they manifest as negative actions that require a more serious response from the administration or other officials. 

If the Supreme Court finds that an objective standard is proper in Elonis, it would make it easier to focus on punishment rather than prevention. This is the wrong approach. Our efforts should be spent working to prevent and remedy the underlying behavior instead of making it easier to criminalize the behavior and providing more opportunity to further crowd the school-to-prison-pipeline.

[1] R. Skiba, A. Cohn, & A. Canter, Zero Tolerance and Alternative Strategies, in  HELPING  CHILDREN AT  HOME AND SCHOOL  II: HANDOUTS FOR  FAMILIES AND  EDUCATORS, S4:103-S4:106 (A. Canter, L. Paige, et al., eds. 2004); National Association of School Psychologists, Zero Tolerance and Alternative Strategies: A Fact Sheet for Educators and Policymakers , NASP ONLINE, http://www.nasponline.org/resources/factsheets/zt_fs.aspx (last accessed April 24, 2014); American Psychological Association Zero Tolerance Task Force, Are Zero Tolerance Policies Effective in the Schools? An Evidentiary Review and Recommendations , AMERICAN  PSYCHOLOGIST, Vol. 63, No. 9, 852–862 (Dec. 2008) (hereinafter “Are Zero Tolerance Policies Effective in the Schools?” ).

 
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