Even if three Indiana girls were just kidding around and used emoticons and LOLs when they discussed killing classmates on Facebook, their talk still could be considered cyberbullying if it inflicted emotional harm, experts say.
The American Civil Liberties Union of Indiana filed a federal lawsuit on behalf of the eighth-graders this week, claiming the Griffith Public Schools district in northern Indiana violated the girls' civil rights when it expelled them on the basis of a personal off-campus conversation that attorneys say shouldn't have been taken so seriously.
The lawsuit filed in U.S. District Court in Hammond says that any reasonable person would have realized the 14-year-olds' banter was in jest in part because of the use of emoticons such as smiley faces, humorous online shorthand such as LOL and ROFLMAO, and capital letters that represent sarcasm.
"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 email.
The controversy began after school on the afternoon of Jan. 24, when one of the girls posted a Facebook status update "concerning her disdain for cutting herself while shaving her legs," according to court documents.
The update was only visible to that particular girl's Facebook friends. Then the three girls began commenting on the status update from their personal home computers, allegedly joking about various topics in some 70 comments that were posted in the span of two hours, Rose said in an ABC News report
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 the University of Wisconsin-Eau Claire and 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 Court has yet to issue a clear ruling on the boundaries of schools' power to regulate students' online speech, they said.
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