Georgia's Court of Appeals revived a defamation and emotional distress lawsuit against the parents of a 13-year old boy who created a fake Facebook page that attacked a seventh-grade classmate for nearly a year.
The October 10 ruling held that the parents of Dustin Athearn, a student at Palmer Elementary School in Kennesaw, GA, were negligent in failing to compel their son to take down the Facebook page. The account was created by Dustin and a fellow student, Melissa Snodgrass, while they casually contemplated whom they hated in their homeroom class.
The two bullies targeted a young girl, Alex Boston, by creating a Facebook page about her making her to appear to be a drug user, have racist beliefs and be homosexual. In determining that Sandra and Michael Athearn, Dustin's parents, failed to exercise due care in supervising and controlling such activity going forward, the Court held that the trial court erred in granting the Athearns’ motion for summary judgment.
The phony Facebook presented the girl as being a graphically sexual person and having multiple mental health disorders. The parents of the bully allowed their son to leave the Facebook page online for 11 months after the school notified the Athearns of their son's bullying behavior.
Dustin Athearn sat in his homeroom classroom with his friend Melissa Snodgrass, both bored and eager to make a fake Facebook page under someone else's name. “Who do we hate in this room?” Melissa Snodgrass wondered out loud, and Dustin's thoughts landed on the girl he and his friends didn't like, ironically enough because she liked to be around them: Alex Boston.
Amy and Christopher Boston approached the school's principal for help after Alex became suspicious Dustin had been involved creating in the hurtful Facebook page. The Facebook profile picture was one Alex recognized that Dustin had taken of her at school. Dustin used a phone application called “Fat Face” to stretch and disfigure Alex's face in the profile picture.
After the principal called Dustin and Melissa into her office, the two admitted to their involvement in the page's creation. The bullies each signed a written statement regarding their participation in harassing Alex Boston, received two days of in-school suspension as their punishment.
Dustin Athearn's parents, Sandra and Michael, were also notified of the defamatory information he posted online. The principal called Dustin's parents and sent home a “Middle School Administrative Referral Form” that explained Dustin's punishment and asked for a parent signature. The parents “punished” Dustin by not allowing him to hang out with his friends in the evenings after school for one week.
The Athearns never even took a cursory glance at the fake Facebook page their son created to bully Alex Boston, nor did they instruct Dustin to delete the page, correct his actions or retract the false and offensive information he published on Facebook.
Meanwhile, the fake Facebook page remained active, requesting and accepting new friendships. The Facebook account ultimately added more than 70 of Alex's friends, family members and teachers from school.
“During the 11 months the unauthorized profile and page could be viewed, the Athearns made no attempt to view the unauthorized page, and they took no action to determine the content of the false, profane, and ethnically offensive information that Dustin was charged with electronically distributing. They did not attempt to learn to whom Dustin had distributed the false and offensive information or whether the distribution was ongoing,” the court said.
A new realm of litigation
Bullying will likely continue to grow as an area of concern in schools, and attorneys can expect claims concerning bullying through the use of social media sites such as Facebook to continuously become more commonplace in litigation. Law schools are already beginning to touch on the reality of the this new area of harassment and defamation, using situations just like Alex Boston's to teach students.
One ABA-Approved law school, Charlotte School of Law, located in Charlotte, North Carolina, recently held an intra-school moot court competition in the Spring 2014, and the case created for the competition closely mirrored the case of Alex Boston. Moot court competitions involve simulated court proceedings, typically at the appellate level, in which students draft briefs and participate in oral arguments before a judge.
In this school's competition fact-pattern, a young girl, age 14, dealt with a female bully at her school who created a fake Facebook page from her family's home computer to torment her classmate. Competing law students were asked to use real cases to argue for or against the protection of the bully's creation of the Facebook page under the First Amendment.
Some of the case law utilized included Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), Morse v. Frederick, 551 U.S. 393 (2007), Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1968), and Bethel School District v. Fraser, 478 U.S. 675 (1986). These First Amendment cases, while not factually about Facebook, were studied by competing students for the purpose of analogizing and distinguishing factual scenarios that could be argued in the context of a Facebook claim.
With new case law developing concerning Facebook as a platform for bullying, attorneys can likely expect to see more case law in this area develop in the near future.