The House Judiciary Committee’s Crime subcommittee yesterday held a hearing yesterday on the painful issues of cyberbullying (webcast). Rep. Linda Sánchez (D-CA) talked about her bill, the “Megan Meier Cyber Bullying Prevention Act” (H.R. 1966), which would create of a new federal felony to punish cyberharassment, including fines and jail time for violators. Rep. Debbie Wasserman Schultz (D-FL) talked about her bill, the “Adolescent Web Awareness Requires Education Act (AWARE Act)” (H.R. 3630), which would instead allocate $125 million over five years in grants for education and awareness-building about these problems. Without endorsing any particular approach, Adam and I discussed the general advantages of education over criminalization in our “Cyberbullying Legislation: Why Education is Preferable to Regulation” paper published by PFF in June, which we updated and submitted as written testimony. But we really couldn’t have done a better job at making this point than Ranking Member Louie Gohmert (R-TX), who powerfully articulated his opposition to the run-away growth of federal criminal law. Chairman Scott (D-VA) also expressed a commendable reluctance to just pass another law and assume that fixes the problem.

Problems with Criminalization

Three lawyers on the panel generally agreed on the thorny speech and due process concerns raised by criminalization and agreed that the Sánchez bill would require serious revision to pass constitutional muster.  UVA Law Prof. Robert O’Neil (testimony) suggested that of the exceptions to free speech protection recognized by the Supreme Court, the only one that could likely be used to do what advocates of cyberbullying criminalization want to accomplish is the intentional infliction of emotional distress. But O’Neill emphasized that this is generally a tort, not a criminal action—which seems like a pretty big distinction to me, especially when the criminal sanction might involve a felony conviction, as Sánchez has proposed. Felony convictions are the “Mark of Cain” in modern life, exceeded only in their lasting effect by being required to register on a sex offender registry. Cato Adjunct Fellow and civil rights lawyer Harvey Silverglate (testimony) highlighted the serious problems raised by vagueness and over-breadth in attempting to define harassment—as evidenced by speech codes at many universities. Harvard Law Prof. John Palfrey (testimony) generally echoed these concerns.

Criminalizing what is mostly child-on-child behavior simply will not solve the age-old problem of kids mistreating each other, a problem that has traditionally been dealt with through counseling and rehabilitation at the local level. For all the talk of how to craft a criminal law (especially its definitions) to minimize constitutional problems, I was very surprised that no one at the hearing raised the critical issue of just who it is we’re trying to protect and from whom.

As we emphasize in our paper, the real problem here is not cyber-bullying (kids bullying other kids online just as they do on the playground, or cyber-harassment in general (adults being rude to each other online), but the special case of adults harassing kids—and knowing they’re doing it. That’s not to say that bullying can’t be severe or very hurtful, but it’s best dealt with by parents, schools and mental health professionals (for both the bullied and the bullies). Given that what’s at stake is free expression online, I just don’t see any need to create new penalties to restrict conversations among adults: As the lawyers on the panel emphasized, the Supreme Court already recognizes exceptions to First Amendment coverage for “true threats,” “fighting words,” etc., which are already covered by state laws.  But in certain cases where an adult egregiously harasses someone they know is a child over the Internet (what most people assume happened in the Megan Meier case), causing real harm, criminal sanctions might well be appropriate, but no one’s yet drafted such a bill.

As Ranking Member Gohmert emphasized, even if such a law could be written to minimize First and Fourteenth Amendment concerns, a critical question of federalism would remain: Should the federal government assert control of an issue of criminal law that has traditionally been left to the states? This is not merely a constitutional question, but a practical one: The federal criminal justice system simply is not equipped to accommodate juvenile defendants.  For this reason and because it is still unclear how to write a narrowly tailored law, if criminal sanctions are pursued as a solution, it may be preferable to defer to state experimentation with varying models at this time. Indeed, Rep. Gohmert may be correct that, under the Tenth Amendment, online harassment simply isn’t the proper role of the federal government.

The Better Alternative: Promoting Education

Two child safety experts also testified, Judi Westberg Warren (testimony), President of Web Wise Kids, and Nancy Willard (testimony), Director of The Center for Safe and Responsible Internet Use. Judi and Nancy both talked about the advantages of supporting education, but disagreed as to what kind of funding was really needed and who should award such grants. Nancy argued strongly that grant decisions should be made by the Department of Education, Department of Health & Human Services and the Department of Justice acting together, rather than by DOJ acting alone, as the AWARE Act proposes—lest we wind up with something like the “DARE” campaign, which some educators think was counter-productive. Despite these differences, education and awareness-based approaches have a chance of effectively reducing truly harmful behavior, especially over the long haul. Such approaches would have the added benefit of avoiding constitutional pitfalls and subsequent court challenges.

The Siren Song of Intermediary Deputization

The real bombshell at the hearing was Prof. Palfrey’s reiteration of the call he made in his 2008 book Born Digital: Understanding the First Generation of Digital Natives to restrict the immunity from tort law created by Section 230 of the Communications Decency Act as a way of addressing concerns about online child safety, including cyberbullying. Adam highlighted the problems with such an approach in his Ars Technica debate with Palfrey earlier this year and has highlighted the threat this poses to online anonymity for all Internet users. The basic premise behind Section 230 remains just as true today as it was in 1996: Holding online intermediaries liable for the speech or conduct of users of their sites or services would strongly discourage voluntary efforts to police online communities.  Indeed, as social networking functionality has become ubiquitous online, Section 230 has grown more important as a “Cornerstone of Internet Freedom”: Without it, online intermediaries would be forced to take sweeping steps that could massively chill online speech and threaten the viability of smaller site operators.

I was relieved that Palfrey got no questions about this issue from the Members during the hearing, but the buzz about the issue afterwards in the hearing room left me concerned that we’re likely to hear more about this very dangerous, but understandably seductive idea in the near future. “Hard cases make bad law,” as lawyers say, and I can all to easily imagine well-justified concerns about cyberbullying leading, with the best of intentions, to “Tort Reform for the Internet” of the worst kind—one that would do serious harm to the profound democratization of content and communications wrought by Web 2.0 tools.

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