Cyberbullying and the Limits of Law

A few days ago, Tyler Clementi, a freshman at Rutgers University, jumped off the George Washington Bridge after his roommate posted a video of him making out with another male student. The roommate, Dharun Ravi, and another classmate have been charged with two accounts of invasion of privacy for using a secretly-placed webcam to view and transmit a live image, without Clementi’s consent. The maximum charge is five years.

The Clementi case follows close on the heels of a related case involving several Massachusetts high school students who bullied 15-year old Phoebe Prince both physically and over Facebook and other social networking sites, allegedly pushing Prince to hang herself. For many young students who die, their Facebook page becomes a memorial for friends and family to post messages and keep the memory of the deceased alive, but with Prince, bullies continued to post disparaging messages on her wall even after she died. Eventually, her Facebook wall had to be disabled.

Massachusetts lawmakers hurried to draft anti-bullying legislation as a result of this incident, and the NYTimes asks in this week’s “Room for Debate” whether the Clementi case too demands tougher laws for those who commit online acts of bullying. Laurie Levenson, the first contributor, raises an important point in answering the question of anti-bullying legislation:

Cyberbullying is growing and our legal system does not seem ready for it. With legitimate concerns about the First Amendment on one side, and equally legitimate concerns about the dangers of such conduct on the other, prosecutors are often left to shoehorn this new wave of behavior into laws created long before there was an Internet.

Because it is difficult to draft a law that allows the full range of free speech, but also serves to deter the type of behavior recently in the news, the government is left to use statutes that don’t quite fit, like false statements to Internet service providers or invasion of privacy or civil rights violations. All of these are weak substitutes for crimes that really involve psychological warfare.

Bullying in general, and cyberbullying in particular, are clearly heinous acts with potentially devastating consequences. But is the criminal justice solution the right place to turn? Levenson goes on to note that bullying is an antisocial behavior that is learned and practiced. Better laws are not necessarily the solution to antisocial behavior.

Another contributor, John Palfrey, also questions whether the criminal justice system provides an adequate solution to the problem of bullying. Turning to the social sciences, Palfrey writes,

Cyberbullying is just bullying that happens to be mediated through digital technologies. There’s nothing fundamentally different about it.

What we know from research is that the incidence of kids harming one another psychologically in ways that are mediated by new technologies is going up over time. But those same data do not tell us that the overall incidence of bullying is going up, nor that it is getting worse. We also can’t say that kids are meaner today than they were in the past.

I want to suggest that the problem of cyberbullying points to the limit of law-based approach to solving some of our moral problems. There are a number of reasons that laws are insufficient to address issues like cyberbullying. First of all, laws must be crafted incredibly specifically to ensure that they actually achieve justice. For Aquinas, laws were mutable rules which were highly dependent on particular circumstances. Second, Aquinas recognizes the limit of law in getting rid of every evil. By getting rid of certain evils, we also get rid of certain sometimes greater goods. For example, stricter laws on cyberbullying may get rid of some cases of evil, but they may also limit free speech, which in a liberal society is considered a great good. In light of these two points is a third point: the best laws are those which are absolutely necessary for the state to achieve its ends. Other issues of interpersonal regulation not necessary for the state to achieve its ends better addressed through custom and the development of moral character.

Law and virtue work together to create good citizens. Whereas law is an external restraint on a person’s actions, virtue is an internal disposition of the person to act in ways conducive to their overall flourishing and the common good. Virtue is developed through practice. That is, by acting in certain just ways, one learns justice. Law and virtue are mutually compatible and mutually necessary because good laws require virtuous lawmakers, but also, good citizens cannot be made simply through good laws. People must be trained through action and custom (consuetudo) to be good.

The case of cyberbullying strikes me as an opportunity to reflect on the necessity of virtue in our society to solve this problem, rather than simply the creation of new laws. After Phoebe Prince took her life, her high school and others created programs to teach people the danger of online bullying. Schools must continue to develop strategies to teach young people about the nature and dangers of online bullying. They must learn courtesy and respect in their homes and classrooms, and courage to stand up when a classmate is being abused.

It is also an opportunity to look at the moral exemplars offered to young people in our society. The popular television show GLEE, for example, frequently makes light of bullying if not subliminally glorifying it. When young people watch a show like GLEE, they are learning not only how to bully, but also that bullying in general does not have any negative consequences. They are learning that bullying, at least in some sense, is cool.

No amount of lawmaking can reverse the effect of custom on behavior. Some legislative action may be necessary for extreme cases like this, but the general problem will remain unless there is a similar effort to change the character of those young people who become the bullies.


9 comments so far

  1. Bob MacDonald on

    I have often considered this an issue noted in Psalm 1 – Happy is the one who has not … sat in the seat of the scornful. It is so tempting at almost any age to want to be ‘in’ and to therefore think that the loud who have the repartee are the ones to imitate – definitely not. But the lessons can be painfully learned. On the other hand, for one who is not so tempted, the presence of scorners is also an important lesson in building one’s own more secured response to the ‘in’ group. I think, reading the spaces between the letters of this psalm, that it may be a lifetime’s work to learn such security and that we must allow those who are unhappy because they have learned to be scorners to somehow grow also – away from the behaviour.

  2. […] 1. Cyberbullying and the Limits of Law (Via Everyday Thomist) […]

  3. everydaythomist on

    This comment is from a friend of mine who posted this reply on Facebook:
    1.) I, for one, disagree that bullying will be solved by laws. Does anyone? This seems like a straw-man opponent. But it’s about time that the law hold such devastating behavior accountable. Anti-bullying laws will not cripple free speech, but may encourage restraint.

    2.) Glee does not glorify bullying. Bullying and bullies are anti-virtues in the show. It does give teenagers an example and inspiration to subvert what usually accompanies bullying: “fight or flight” through the cultivation of self.

  4. everydaythomist on

    1. The “Room for Debate” on the NYTimes to which I refer is divided on what laws can and should accomplish. Presumably, people who do want more stringent anti-bullying laws think they will act as a deterrent and libertarians who disagree fear they may limit free speech (think about some of the things Glenn Beck says. Maybe under certain laws, he could be prosecuted as a bully). I don’t think that is a straw man at all. Moreover, the question is broader than whether such laws will deter, but also, what sort of punishment is considered just for such acts of bullying. The guy who posted the online video of Clementi, by all accounts, seems a relatively decent guy. Should he go to jail for ten, fifteen, twenty years for posting this video? What if Clementi hadn’t jumped? Shouldn’t have Ravi’s acts been dealt with internally by the RA and not by the law?

    2. I disagree about GLEE. I used to love the show, but I think now it sends pretty awful messages about what you call “the cultivation of the self.” Take the first episode this season with Rachael and Sunshine. Rachael bullies Sunshine and sends her to a crack house (the audience laughs). Nothing bad happens to Sunshine and at the end, Rachael sings about how she did what she did for love, and because we are used to Rachael being the object of bullying, the show aligns our sympathies with her, not Sunshine. In real life, Sunshine could have run off and killed herself like Phoebe Prince as an immigrant who can’t fit in and is being maliciously targeted by certain members of the school. Where was the lesson there? Rachael is still the star, still the hero, and Sunshine is off the show.

    I think the character of Sue Sylvester also challenges your thesis that bullying is an anti-virtue. The viewers of Glee love Sue despite her notoriety as a bully. Plus, the show punctuates Sue’s normal evilness with scenes with her with her down-syndrome sister and we realize that Sue (like most bullies) has a softer side, a hidden past which may explain some of her actions. But still, the show would flop without Sue as a character, and without Sue as a bully and so we root for her as well. Kids who watch the show, I do think, are learning how to bully and that bullying is, in some sense, cool. Moreover, kids who are currently getting bullied learn what? That if they can sing like a pop star they can rise above their present-day unpopularity and teasing?

    • Erik on

      Beth, I disagree with you on several counts. Rachel’s selfishness and contrived rationale for her behavior is clearly written into the show as an anti-virtue, and is roundly rejected by all of the characters. It is even made the focus of a highly charged scene at the end of the show, where Finn openly challenges her diva-ness, a flaw in her character that has been her “project” since last season.

      And Sue’s character also shows more complexity than your synopsis – you acknowledge this – but instead of allowing for a more nuanced view – you close the door. Glee is a highly complex show with complex plots and characters and eschews these kinds of moral generalizations. You are also extrapolating a tv plot line and making comparisons to an actual set of human dynamics and relationships at South Hadley High School, which I don’t find too effective.

      I don’t quite understand the leniency toward the kid who posted the video online. That he seemed to be a “decent guy” puzzles me altogether, insofar as this factors in at all. The fact of the matter is, that someone died tragically as a result of this malicious act of betrayal and severe public humiliation. It is a human tragedy and his roommate had a large part to play in this.

      Whether or not he died should not determine the role of prosecution..he should be prosecuted either way, on account of the violation of privacy and the intent to slander.

      • everydaythomist on

        Thanks for such thoughtful comments. I don’t think Glee is categorically evil, but I do not think the show is nearly as positive as you portray it. Rachael’s actions may have been condemned verbally by the characters, but the fact remains that the show implicitly teaches that bullying doesn’t really have any bad consequences. Sunshine is fine (and presumably entering a role as a supporting character) and Rachael, while chastised by her friends, is still the star. Bullying never in the show pushes a character over the edge as it does in real life. Moreover, Sylvester is a loveable bully who gets all the funniest lines. Why wouldn’t an insecure kid watching Sue every week think they could get a similar laugh from friends using her tactics?

        As for Ravi, I do worry about his future. While I think his actions were reprehensible, I also think he’s a young college kid without a lot of prudence who was probably trying to get a laugh from his friends and didn’t think his actions through all the way. Maybe he watches shows like Glee and thinks that bullying may be wrong, but in general, never really hurts anyone. Maybe he assumed that a talented musician like Clementi had the sort of Glee-based resources to rise above any bullying. I think that had Clementi not taken his own life, Ravi’s actions would have been dealt with appropriately by the RA. If Clementi was still alive, it would be utterly inappropriate for us to know who Ravi was–there should not be a trial for most bullies, even those who infringe on the privacy of others. Most bullies, I think, need to develop their character through less costly forms of punishment than prison time. Ravi picked on the wrong person at the wrong time, and unfortunately, unlike most bullies, he won’t get to grow out of his bad behavior. It’s going to stick with him the rest of his life.

        Finally, I would say that we look to shows like Glee, which admittedly are simplistic representations of real life, for clues about how our culture functions and what sort of values we tacitly hold and convey by our unconscious actions. You might not find the parallels convincing but I do. My whole dissertation is based on the way in which girls unconsciously learn that they need to be ultra-thin to be beautiful (and even “good”) simply through media exposure from magazines and shows like Glee. I am reminded of one episode in particular where Quinn teaches Mercedes how to love her body and accept who she is. The problem is that Quinn, despite the fact that she is “pregnant,” looks like a thin well-dressed white woman telling a black woman how to think. You might say that is harmless or that I am reading too much into the show, but I think that episode taught female viewers that thin and white is beautiful and powerful, while big and black will just never make the cut.

  5. Nate on

    This is really interesting stuff. I see in this situation less a conversation about crime and punishment. On some level I agree that a law will not solve the problem. Our law system is insufficient to enjoin people to “virtuous behavior,” as you call it.

    The problem, as I see it, is far deeper than simple “bullying” and the inherent wrongness of it. Ultimately, the problem stems from issues of group-think and othering. I remember a few years back when those girls were convicted of assault after they youtubed a video of themselves beating another girl. I watched it. It was horrible. These girls WAILED on this single girl. She had no opportunity to leave the room/house. They barred her from exit and just continued to pummel her. Why would they do this? The specific reasons aside, the situation boils down to the fact that a group of individuals is threatened, if it can even ben called that, by the identity of an individual. To assert their dominance they have to resort to physical violence. This is not entirely different from the function of larger militaristic groups.

    I think you see a similar thing going on with the bullying. Groups of individuals – in order to maintain group solidarity – must “scapegoat” some outside “other.” By doing so they, in a Girardian way, validate the existence of the group and membership in it.

    The question is, how do we rid ourselves of it? Education is key, like you said. Girard would say that once the “scapegoat” is revealed as a fraud, the group can no longer use it. So, in short, I think the only real education that can go on is somehow to reveal the scapegoat to groups of individuals looking for solidarity.

    • everydaythomist on

      I think scapegoating is integral to bullying, as you wisely point out. But I do not think that this is integral to our human nature, but rather a result of individual vice and vicious customs (consuetudo) which lead people to think they can get on top by beating those underneath them. This is a habit which I fully believed is learned, and therefore, can be unlearned. How? It needs to happen on a number of levels–not encouraging elementary school students to compete against their peers, for example. Team sports can help (they can also be completely antithetical to the development of virtue, depending on how they are played). Finding opportunities to reward young people for helping those in need is also necessary. Regardless, I think our culture is set up to habituate people to scapegoat, to abuse the powerless, and to undermine their peers in order to “get on top.” And the law, on its own, is not going to change that.

      One of my friends (Katie Sellers, I am referring to you) has on her Facebook wall a quote I think particularly apt for this conversation:

      “The transformation of our culture and our society [has] to happen at a number of levels. If it occurred only in the minds of individuals…it would be powerless….only from the… state, it would be tyrannical. [We need]… individual action.”

  6. Elizabeth on

    Hey Beth,

    Would you mind telling me more about your dissertation? (Whether here or via facebook or email.) I myself have become increasingly interested in the clash between theological and cultural notions of beauty, especially for women. I am also thinking at some point in the future about pursuing the link between compulsive eating practices and what they reveal about despair vis-a-vis God. So I’m obviously really interested in what you’re doing.


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