Holding parents liable for kids' online speech: a bad idea

A recent Georgia Court of Appeals decision found that parents could be held liable in negligence for failing to compel their son to remove an allegedly defamatory Facebook page. Although born out of a desire to protect minors from online bullying, the decision raises several troubling concerns.

The case, Boston v. Athearn, A14 A0971 (Ga. Ct. App. Oct. 10, 2014), involved a fake Facebook profile created by a seventh-grade student, Dustin Athearn, in the name of a fellow student. Athearn used the profile to post numerous status updates and comments, including not only lewd and offensive statements but also false statements about the targeted student's mental health and supposed drug use. Athearn was soon found out and suspended for two days. His parents, after receiving notification of his suspension, grounded him for one week. They did not, however, tell their son to delete the profile or attempt to determine if the false statements could be corrected, deleted or retracted. The court held, on these facts, that a reasonable jury could conclude that the parents failed to exercise due care by, after learning about the fake Facebook profile, failing to compel their son to delete it.

The court's decision is seemingly narrow, finding that the parents could be held negligent for their failure to supervise their son only after they were on notice of the Facebook profile. But the decision holds the parents responsible for then going back and deleting content posted before they were on notice, rendering them retroactively liable.

The practical problem with the court's decision becomes evident later in the opinion. The court acknowledged that, under Facebook's policy, only the user who signed up for the password-protected account had the authority to delete the profile. On this basis, the court reasonably rejected the plaintiff's alternative "novel" theory that Athearn's parents had to delete the Facebook profile as landowners, with a duty to remove defamatory content existing on "their property." But this begs the question of how parents would delete the content of a password-protected site should their child refuse to abide by an instruction to do so.

More significantly, if upheld, the decision will likely pressure parents to restrict the First Amendment rights of their children. Any parent, fearful of liability, may regulate their children's social media postings even absent bad behavior. This will inevitably have some tendency to chill speech, including speech that is constitutionally protected.

As student speech cases recognize, kids have free speech rights that are distinct from their parents. And although defamatory speech gets lesser protection under the First Amendment, not all unkind remarks made by students on social media rise to the level of defamation. Although such remarks may not be in good taste, they are protected under the First Amendment. As Justice William Brennan observed in his dissenting opinion in FCC v. Pacifica Foundation, 438 U.S. 726, 762-63 (1978), the U.S. Supreme Court has consistently "refuse[d] to embrace the notion, completely antithetical to basic First Amendment values, that the degree of protection the First Amendment affords protected speech varies with the social value ascribed to that speech by five [justices]." The Supreme Court reaffirmed this principal in 2011, holding that "speech cannot be restricted simply because it is upsetting or arouses contempt." Snyder v. Phelps, 131 S. Ct. 1207, 1219 (2011).

While different rules apply for on-campus speech, nondefamatory vulgar or offensive off-campus speech by minors is constitutionally protected. While a high school can punish a student for giving a lewd speech on campus, that same speech is protected when given outside of school. See Morse v. Frederick, 551 U.S. 393, 405 (2007). And as the 3rd U.S. Circuit Court of Appeals has found, the off-campus creation of a fake and offensive online profile of a high school principal is also protected speech. See Layshock v. Hermitage School District, 650 F.3d 205 (3d Cir. 2011); J.S. v. Blue Mountain School District, 650 F.3d 915 (3d Cir. 2011).

Although the Georgia Court of Appeals decision is not one of vicarious liability, the practical effects are the same. The Supreme Court has invalidated laws imposing vicarious liability on booksellers for selling books containing unprotected classes of speech on the ground that such laws have a tendency to inhibit constitutionally protected expression. So, too, here. The Georgia Court of Appeals decision falls below the bar for protecting speech and sets a dangerous precedent for future judicial decision-making.

Unfortunately, this is not the first time an anti-bullying effort has resulted in overbroad restrictions on speech. In 2013, a Wisconsin town passed an anti-bullying ordinance under which parents could be fined if their child bullied another. And school districts across the country have adopted anti-bullying policies that purport to regulate students' off-campus social media speech.

Online bullying is a problem, and Athearn's fake Facebook profile was downright cruel. But laws designed to protect children online often become tools for censorship. The Children's Internet Protection Act (CIPA), for instance, was passed to encourage public libraries and schools to filter child pornography and otherwise "harmful to minors" images in exchange for federal funding. But libraries across the country have applied the law aggressively, blocking more than required under the law, including sites advocating for lesbian, gay, bisexual, transgender and queer issues or with information about teen smoking. Holding parents liable for their children's speech will lead to such unnecessary censorship.

Just as parental liability statutes do little to deter bad behavior offline, holding parents liable for their children's online speech will not stop online bullying. It may increase it through rendering kids less accountable for what they say online. Although the word "bullying" conjures up images of middle school, it is not an issue that affects only minors. Online "trolls" of all ages post tasteless comments all over the web. The sooner children learn to be accountable and respectful participants in the online community, the better.