Bob Barr, the four term Republican Georgia congressman turned ACLU activist and 2008 Libertarian Presidential candidate, has denounced Rep. Linda Sánchez‘s (D-CA) “Megan Meier Cyber Bullying Prevention Act” (H.R. 1966) in particularly harsh terms:
This legislation represents an exercise in overcriminalization and poor draftsmanship not often seen, even in the Congress. A term as broad and as vague as “intent to . . . cause substantial emotional distress to a person” invites constitutional challenge as being violative of the Fifth Amendment due process guarantee, as well as the First Amendment’s language protecting speech (including political and news media speech). Sending an e-mail or a blog, or even posting a Twitter message that might be particularly insensitive or even downright mean about another person, including perhaps a candidate for office or an incumbent, could land you in jail if Rep. Sanchez’ bill were to become law.
Barr touches on many of the key points Adam Thierer and I raised in the written testimony we submitted to House Judiciary Committee’s hearing on this subject back in September—summarized here. At the hearing, Sanchez declared her intention to revise the bill to incorporate constitutional criticisms. Stay tuned for an update on that front…
But as we noted in our testimony, the constitutional problems with criminalization cannot beeasily remedied, especially since Sanchez seems unwilling to limit her bill to cyberharassment of children by adults (such as allegedly happened in the Megan Meier case)—relying instead on existing cyberstalking laws (a much more narrowly defined crime involving “true threats”) to govern conduct among adults, and educational and counseling-based approaches to govern true cyberbullying among children.
Why we haven’t heard the last of Sanchez’s bill, the more serious threat is likely to be efforts to deputize online intermediaries to “deal with the problem” by chipping away at the broad immunity under Section 230 that has allowed the great flourishing of online content and services involving user generated content and participation. As we noted: Continue reading →
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. Continue reading →
Just caught this LA Times editorial from a couple of days ago on the “Overreaction to Online Harassment.” The piece makes many of the same points that Berin Szoka and I stress in our PFF paper on “Cyberbullying Legislation: Why Education is Preferable to Regulation.” [Also, here’s a video of a debate on these issues that I took part in up on Cap Hill this summer.]
The
Times editorial notes that, “Because of a past tragedy, lawmakers and prosecutors are becoming overzealous in combating noxious behavior on the Web.” Specifically, they are referring to the tragic case of Megan Meier, the teen who committed suicide after being harassed on MySpace. “Members of Congress often try to expand the powers of federal prosecutors and courts when state law doesn’t produce the results they seek, especially when confronted with cases as heart-wrenching as Meier’s,” the Times noted. For example, in may 2008, Rep. Linda Sánchez (D-CA) introduced H.R. 1966 (originally H.R. 6123), the “Megan Meier Cyberbullying Prevention Act,” which would create a new federal felony to deal with this concern.
But creating a federal crime for something that is mostly peer-on-peer activity seems like overkill. Moreover, the
Times notes, “the bill is so vaguely written” that it “would have a hard time withstanding a 1st Amendment challenge if it ever became law.” As you’ll see in our paper, Berin and I agree, but we also point out that cyberbullying is a very serious matter since evidence suggests the cyberbullying is on the rise and that it can have profoundly damaging consequences for children.
Continue reading →
The painful issue of cyberbullying has recently taken center stage in the ongoing debate about online child safety. Last week I wrote about Lori Drew’s acquittal on charges related to Megan Meier’s tragic suicide, suggesting that the judge in the case was right to overturn her conviction on a very expansive reading of the federal anti-hacking statute. While I think that decision was necessary on legal grounds, it’s sure to add “fuel to the fire” of calls for “action” in Congress. Thus, I emphasized that observers of the case need to separate their understandable outrage from the from the questions of (1) whether that statute was properly applied and (2) how the law should treat such cases in the future.
On the second question, Adam and I recently released a major entitled, “Cyberbullying Legislation: Why Education is Preferable to Regulation.” We distinguish among:
- Cyberbullying: kid-on-kid abuse online
- Cyberharassment generally: people of all ages using the Internet to harass each other
- Adult-on-kid cyberharassment: For example, Lori Drew’s alleged (but still unclear) role in the Megan Meier case
In a nutshell, we argue that education is the better approach to cyberbullying (Problem #1)—an approach taken by a bill introduced in the Senate by Sen. Robert Menendez (D-NJ) and in the House by Rep. Debbie Wasserman Schultz (D-FL) . We go on to argue that, while it would be difficult to create criminal sanctions for cyberharassment generally (Problem #2) without infringing free speech and due process rights, it might be possible to craft laws narrowly tailored to cyberharassment of kids by adults (Problem #3). Continue reading →
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