February 1, 2017
Senator José Menéndez
Texas Senate
PO Box 12068 Capitol
Station Austin, TX 78711
Re:

Representative Ina Minjarez
Texas House of Representatives
PO Box 2910
Austin, TX 78768

SB 179 – EFF opposition

Dear Senator Menéndez and Representative Minjarez:
The Electronic Frontier Foundation (EFF) regrets to inform you that we
oppose SB 179.1 Online harassment is a serious problem.2 But this bill is not
an appropriate solution. Among other things, it would unduly burden First
Amendment liberties in the contexts of school discipline, school expulsion,
unmasking anonymous speakers, and civil litigation.
EFF is a member-supported, nonprofit civil liberties organization that
protects free speech and privacy rights in the digital world. EFF was founded
in 1990, is headquartered in San Francisco, and has over 35,000 members.
1.

School discipline

The bill’s definitions of “bullying” and “cyberbullying” are vague and
overbroad. For example, they include a single email directed by one student
to another that “infringes on the rights of the victim at school.”3 The scope
of these unnamed “rights” is undefined.

1

See Texas SB 179, at
http://www.capitol.state.tx.us/Search/DocViewer.aspx?ID=85RSB001791B&QueryText
=%22sb+179%22&DocType=B. There are four closely related Texas bills. See SB 180,
HB 304, HB 305, and HB 306, at ttp://www.capitol.state.tx.us/.
2
EFF, Facing the challenge of online harassment (Jan. 8, 2015), at
https://www.eff.org/deeplinks/2015/01/facing-challenge-online-harassment.
3
See SB 179, Section 2, amending Education Code 37.0832(a)(1)(A)(iv).

 Suppose that during a current events class, one student made an unpopular
statement. Suppose further that in response, another student sent them an
email criticizing them, and concluding, “I wish you would keep your
opinions to yourself.” School officials might determine that the second
student’s email infringed on the first student’s right to speak at school, and
thus might impose discipline. This would be true without regard to the
content of the speech involved. Maybe the first student (who spoke in class
discussion) opposed gay marriage, and the second student (who was
suspended for their responsive email) led the school’s Gay-Straight Alliance.
Or maybe the first student supported gun control, and the second student led
the schools’ NRA chapter. In these and many other circumstances, the bill
would allow discipline where none is warranted.
Courts have struck down cyberbullying laws that, like the proposal here, are
overbroad in violation of the First Amendment.4
2.

School expulsion

The bill authorizes expulsion from school of a student who engages in
bullying that encourages another student to commit suicide.5 This rule would
not take into account the expelled student’s intentions, the consequences of
their actions, or how a reasonable student would have interpreted the
expelled student’s words.
Suppose in the hypothetical above that the student’s email had said, “Why
don’t you jump off a bridge so we don’t have to listen to your opinions?”
The student who sent the email could be expelled, though they meant “jump
off a bridge” rhetorically, the recipient did not attempt any self-harm, and
the rest of the student body, familiar with the students involved, would have
known the suggestion was not serious.
The bill also authorizes expulsion of a student who releases intimate visual
material of another student.6 The expelled student might have had no
previous relationship with the depicted student; for example, they may have
forwarded along an image they received from someone else. The expelled
4

See, e.g., State v. Bishop, 787 S.E.2d 814 (N.C. 2016); People v. Marquan M., 19
N.E.3d 480 (N.Y. 2014).
5
See SB 179, Section 3, adding Education Code 37.0052(b)(1).
6
See SB 179, Section 3, adding Education Code 37.0052(b)(3).
2

 student may have intended no harm, caused no harm, or had consent from
the depicted person. The released images might be newsworthy; for
example, the victim of a sexual assault might release images of their
assailant’s crime. The bill authorizes expulsion without regard to any of
these considerations.
It bears emphasis that school expulsion is highly disruptive to the
educational and other needs of expelled children. And all too often,
expulsion and other school discipline disproportionately impacts youths who
are racial and ethnic minorities and LGBT youths.7
3.

Unmasking anonymous speakers

The bill authorizes pre-suit subpoenas to investigate potential legal claims
arising from any undefined “injury” to a minor.8 This new process would
threaten the First Amendment right to communicate anonymously on the
Internet.9 This right is especially important for people who belong to
unpopular groups or who express unpopular messages, who might otherwise
stay silent rather than risk retaliation.10
In the hypothetical above, suppose the second student anonymously blogged
about the classroom comments of the first student, and concluded, “only a
jerk would say this in class.” The first student might try to use the bill’s presuit subpoena process to unmask the anonymous blogger, based on the
pretext of a highly dubious defamation claim. Again, this would be true
without regard to the content of the anonymous blog, whether it supported
gun rights or LGBT rights or any other message. The risk of unmasking
would chill many anonymous speakers.
7

Donna St. George, Researchers point to racial disparities in school suspension,
spotlight new practices, Wash. Post (March 14, 2014), at
https://www.washingtonpost.com/local/education/researchers-point-to-racial-disparitiesin-school-suspension-spotlight-new-practices/2014/03/14/0017cd98-aaa7-11e3-adbc888c8010c799_story.html; Gay, Lesbian & Straight Education Network, Educational
exclusion: Drop out, push out, and the school-to-prison pipeline among LGBTQ youth
(2016), at http://www.glsen.org/sites/default/files/Educational%20Exclusion_Report_628-16_v4_WEB_READY_PDF.pdf.
8
See SB 179, Section 7, adding Civil Practice Code 18.101(a)(1).
9
See, e.g., Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088 (W.D. Wash. 2001). See
also McIntyre v. Ohio Elections Commn., 514 U.S. 334 (1995).
10
See generally EFF, Anonymity, at https://www.eff.org/issues/anonymity.
3

 4.

Civil cause of action

The bill would authorize civil lawsuits, and the award of treble damages,
against a student who sent an email to another student that encouraged them
to commit suicide.11 Again, this is far too broad, because it does not take into
account the speaker’s intentions, the message’s consequences, and the
response of a reasonable person to the message.
Moreover, the bill would impose damages liability upon the parents of a
minor who sent a prohibited email, whether or not the parents had anything
to do with the email.12 Most parents do not require their adolescent children
to obtain parental permission before sending emails, text messages, and
posts to social media. Nor should they.
***
Thank you for considering EFF’s opposition to SB. 179. If you have any
questions, please do not hesitate to call me at (415) 436-9333, extension 176,
or email me at adam@eff.org.
Sincerely,
Adam Schwartz
Senior Staff Attorney
cc:

11
12

Dwight Clark, Office of Sen. Menéndez,
dwight.clark@senate.texas.gov
Nar Dorrycott, Office of Rep. Minjaraz,
nar.dorrycott@house.texas.gov

See SB 179, Section 8, adding Civil Practice Code 100B.001(1)(B)(i).
Id. at 100B.005.
4