Cyberbullying and Restorative Justice [a Long-Delayed Post on DC v. RR]

By Eric Goldman

[I’ve mentioned before that some posts get stuck in my blogging queue. This one got stuck for an incredible FOURTEEN months. Although its discussion about the specific case ruling is almost farcically untimely, I’ve decided that the post is still worth sharing. I hope you agree.]

DC v. RR, 2010 WL 892204 (Cal. App. Ct. March 15, 2010)

This case has been gnawing at me for some time. The case involves an alleged 2005 cyberbullying incident among students at the tony Harvard-Westlake private high school in the Hollywood Hills. I previously blogged about this case in 2009 when I learned about DC’s lawsuit against Harvard-Westlake, which an arbitrator dismissed per 47 USC 230 in 2007 and awarded a half-million in attorneys’ fees to the school. While that disposed of DC’s lawsuit against the school, DC’s lawsuit against the alleged cyberbullies kept going. The March 2010 ruling affirmed a rejection of the alleged cyberbullies’ anti-SLAPP motion to strike. The details of why the court rejected the anti-SLAPP motion are interesting but not really the point of this post.

Instead, the March 2010 ruling marked the 5 year anniversary of DC’s litigation, and the lawsuit had only reached the anti-SLAPP stage. I emailed Rex Julian Beaber, RR’s counsel, for the latest status of the lawsuit, and earlier this week he sent me the following (which I’ve edited a bit, but not substantively):

After the Supreme Court denied review, the remittur was issued and the case was returned to the Los Angeles Superior Court. Not long after the case was returned, the parent defendants (i.e. the parents of [RR]) and the plaintiff parents (i.e., the parents of the “victim” DC) were dismissed from the case. The dismissals took place for reason unrelated to the first amendment issues…. The net result of this ruling was that it was left as a child versus child case…. After the dismissal, the lone defendant, RR, filed his answer. Accordingly, the case is presently in the pre-trial discovery stage.

Given that the case has basically just finished the pleading stage, it could take another few years to reach a resolution in the trial court. Further appeals could delay a final resolution for years more. Ultimately, this case–involving actions by 15 year old boys–could potentially last until they are into their 30s.

No matter who “wins” in the courtroom, a protracted court battle like this seems like a loss for everyone–including the taxpayers. Let’s start with consequences of decade-long litigation for the alleged cyberbullies. Let’s assume they did it–that they published harmful content with the intent to bully a classmate. I cannot apologize for this behavior in the least. However, I also can’t ignore that they were 15 years old and thus not fully mature in the law’s eyes, and their punishment through a decade of litigation might be disproportionate to the crime. The financial drain of litigation is overwhelming, and the time spent fighting in courtrooms is irreplaceable time diverted away from cultivating professional skills and transitioning from teenager to adult.

To weigh the punishment of protracted litigation against the alleged crime, it’s helpful to look more closely at the posts at issue. DC was an aspiring entertainer who set up a self-promotional website with a guestbook. The complaint alleges that Harvard-Westlake students flooded the guestbook with hate-filled homophobic and threatening posts, such as:

One post read, “Faggot, I’m going to kill you.” Another read, “[You need] a quick and painless death.” One student wrote, “Fuck you in your fucking fuck hole.” Another commented, “Fucking ass clown. Nigga what?” One post announced, “You are now officially wanted dead or alive.” Another threatened, “I will personally unleash my manseed in those golden brown eyes.”

Other posts included:

(1) “I hate fags …. ….gays are…. Hey fucker…. You are real gay”; (2) “Faggot, I’m going to kill you”; (3) “You are an oversized faggot…. I just want to hit you in the neck-hard…. [G]o to the 405 [freeway] bridge and jump”; (4) “I hate fags…. You need to be stopped”; (5) “I am looking forward to your death”; and (6) “Not only are you a massive fagmo, but must absolutely quit showing your face at my school. You are now officially wanted dead or alive.”

With respect to RR’s post, the complaint alleges:

R.R. posted the following message on D.C.’s Web site: “Hey [D.C.], I want to rip out your fucking heart and feed it to you. I heard your song while driving my kid to school and from that moment on I’ve … wanted to kill you. If I ever see you I’m … going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you burn in hell.”

Perhaps it goes without saying, but there is no situation where this posting is appropriate. It is violent, sadistic, homophobic and utterly depraved. If my child had posted something like this, I would be unspeakably sad. However, in the context of teenage boys talking to each other, especially given the other vitriol on the guestbook, the post is so over-the-top that it’s a little hard to take seriously. Do we really think RR was going to rip out DC’s heart or impale his head with an ice pick? I don’t. The post isn’t funny, but it’s clearly not serious either. Instead, it’s a profoundly poor choice by a teenage boy given the power of publication without having the associated wisdom of knowing how to use that power appropriately.

Collectively, the posts allegedly took their toll on DC and his family:

On the advice of the police, D.C. withdrew from Harvard-Westlake. He and his family moved to Northern California, where he went to a different educational institution. The Harvard-Westlake student newspaper, The Chronicle, ran at least two articles on the matter. One article disclosed D.C.’s new residential location and the name of the school he was attending. The article also disclosed that posts at the Web site had referred to D.C. as a “faggot.”…As a consequence of defendants’ conduct, plaintiffs suffered personal and emotional injury, loss of income, the payment of medical expenses, the cost of moving, expenses for traveling back and forth from their new residential location to Los Angeles in order to support D.C.’s professional career commitments, and the related cost of housing while staying in Los Angeles.

As a method of redressing these harms, a decade-long lawsuit really isn’t a great option for DC either. Even if DC wins a huge financial payday a decade after the event, the money doesn’t really solve the problems he experienced along the way, or the fact that he has spent many years of his life pursuing “justice.” If DC doesn’t win a huge financial payday, then the unrecouped litigation costs are just an extra punishment–thus perpetuating the victim’s harm. And the defense attorneys surely have taken their shots at DC in depositions, filings and oral arguments.

Seeing how no one seems to win from a lengthy court battle, I keep coming back to the idea–the hope?–that there has to be a better way. As I’ve thought about this case over the past 14 (!) months, I’ve increasingly wondered if the civil litigation system is categorically the wrong solution for cyberbullying cases. It’s just too expensive and time-consuming, and it runs too high a risk of punishing victims further.

I’ve been wondering if restorative justice might offer a better way. If you’re not familiar with the term, it’s a category of litigation alternatives that typically try to educate the perpetrators without punishing the victims further. One type of restorative justice is the “conferencing circle.” There, the perpetrator gathers with a circle of community members who are impacted by the perpetrator’s behavior. For example, in a shoplifting case, the shoplifter might meet with the retailer whose goods were stolen, but the circle could also include employees whose jobs are threatened by the lost revenue and consumers who pay higher prices due to shoplifters. Through this process, the perpetrator learns the far-reaching consequences of poor choices. Meanwhile, all of the victims of wrongful behavior–not just the most immediate victim–get a chance to speak their peace. The result is that the victim(s) have a cathartic experience (without the pain of litigation) and the perpetrator may learn how to make better choices in the future.

Not every wrong is well-addressed by restorative justice, but cyberbullying could be a terrific candidate for restorative justice initiatives. If executed properly, a victim of cyberbullying might feel like justice was served by having the community speak out on his/her behalf, and this resolution can occur in a matter of weeks or months, not decades. Meanwhile, a cyberbullying incident can be used as a teaching moment for the perpetrators to help guide them towards socially desirable behavior. The costs borne by taxpayers are way lower too. Perhaps most importantly, a restorative justice solution avoids subjecting juveniles to the rigors of a civil litigation system designed for adults who have made adult choices.

So I’m left wondering what might have happened if DC had pursued restorative justice instead of civil litigation. Perhaps this situation could have been resolved in 2005, not 2015.