Federal Cyberbullying Law: ‘Worth a Try’?
Cato@Liberty
October 2, 2009
By David Rittgers
On Wednesday the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on the proposed cyberbullying legislation I mentioned in this post. Cato adjunct scholar Harvey Silverglate testified at the hearing, and his written testimony is available here.
Silverglate highlighted the pernicious potential of this law, which sits at the nexus of his two books. The Shadow University highlights how speech codes have impaired free expression on college campuses nationwide. Three Felonies a Day shows how federal criminal law has expanded to define various innocuous activities as federal felonies. Put the two together and a federal cyberbullying law is what you get. Silverglate’s recent podcast is available here, and he recently appeared at a Cato book forum.
The proposed cyberbullying law would impose a federal felony (two-year maximum sentence) upon anyone who uses electronic means to communicate a message intended to “coerce, intimidate, harass, or cause substantial emotional distress to a person.” Under this law, rude emails, texts, or blog posts can all subject someone to hard time as long as a receiving party alleges “substantial emotional distress.”
The Committee expressed constitutional concerns over this proposal. Chairman Bobby Scott (D-VA) pointed out the potential chilling effect that this could have on lawful but provocative speech. Ranking Member Louie Gohmert (R-TX) highlighted the unintended consequences that this bill could have — though intended to protect teens from online bullying, Gohmert said it could prompt prosecution of political opponents who had posted offensive things about him on a blog. There is no limiting language in the statute to prevent such a result. Gohmert said that while this would be satisfying, it would also be unconstitutional and among the reasons not to endorse the legislation.
Two cyberbullying bills duke it out in House committee
Ars Technica
October 1, 2009
By Jacqui Cheng
Cyberbullying is a delicate subject that is better met with education than with laws to criminalize it, testimony before the House Judiciary Committee suggested yesterday. Most experts testifying at the hearing agreed that criminalization would be difficult—both from an enforcement standpoint and also Constitutionally—while education would offer a better approach to some of the nuances of cyberbullying.
The two bills discussed at the Committee hearing were Representative Linda Sanchez's (D-CA) "Megan Meier Cyber Bullying Prevention Act" and Representative Debbie Wasserman Schultz's (D-FL) "Adolescent Web Awareness Requires Education Act" (H.R. 1966 and H.R. 3630, respectively). Given the name of the Sanchez bill, it's clear that it was created in memory of the "MySpace suicide" case of 13-year-old Megan Meier, who was repeatedly manipulated and harassed online by the mother of a peer until she eventually killed herself.
The bill was introduced in April in an attempt to criminalize such behavior, but critics immediately zeroed in on the vagueness of the bill's language and noted that it could be easily abused to prosecute a wide array of free speech situations. That was once again the focus among critics of the bill in Wednesday's hearing—civil rights attorney Harvey Silverglate pointed out that no citizen (or even the average lawyer or judge) would be able to understand exactly what the bill means when it comes to verbal harassment as a criminal offense. "Often born of good intentions, these legislative efforts have, almost without fail, produced unintended consequences," Silverglate said, "including excessive and unfair prosecutions as well as the inhibition of the sometimes unruly verbal interactions that are, and should be, the product of a free society."
The Wall Street Journal
September 27, 2009
By L. Gordon Crovitz
Sometimes legislators know when they make false distinctions based on technology. An "anti-cyberbullying" proposal is making its way through Congress, prompted by the tragic case of a 13-year-old girl driven to suicide by the mother of a neighbor posing as a teenage boy and posting abusive messages on MySpace. The law would prohibit using the Internet to "coerce, intimidate, harass, or cause substantial emotional distress to a person." Imagine a law that tried to apply this control of speech to letters, editorials or lobbying.
Mr. Silverglate, who will testify against the bill later this week, tells me he figures that "being emotionally distressed is just part of living in a free society." New technologies like the Web, he concludes, "scare legislators because they don't understand them and want to control them, even as they become a normal part of life."
In a complex world of new technologies, there is more need than ever for clear rules of the road. Americans should expect that a crime requires bad intent and also that Congress and prosecutors will try to create clarity, not uncertainty. Our legal system has a lot of catching up to do to work smoothly with the rest of our lives.