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:

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.

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.

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.

The Times would have been on stronger ground had they pointed out that fact as well the presence of a solid alternative to the Sánchez bill: Education and awareness-building efforts. In mid-May, the “School and Family Education about the Internet (SAFE Internet) Act” (S. 1047) was introduced in the Senate by Sen. Robert Menendez (D-NJ) and in the House by Rep. Debbie Wasserman Schultz (D-FL). The measure proposes an Internet safety education grant program that will be administered by the Department of Justice, in concurrence with the Department of Education, and the Department of Health & Human Services.  That’s the more sensible — and constitutional — way to address cyberbullying concerns should federal lawmakers feel the need to act.

Finally, as the Times concludes in its editorial, “harassment is amply addressed by state criminal and civil laws.” Existing state statutes can be extended to cover the most problematic forms of online harassment, especially those that involved adult-on-child contact. We don’t need to make a federal matter, or crime, out of this.

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:

1. Cyberbullying: kid-on-kid abuse online
2. Cyberharassment generally: people of all ages using the Internet to harass each other
3. 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).

By contrast, Rep. Linda Sánchez has proposed the “Megan Meier Cyberbullying Prevention Act, which by its title purports to deal with that problem (#3) but would actually create a sweeping Federal felony for all cyberharassment (#2). We noted the potential Commerce Clause problems with states trying to regulate Internet speech, and emphasized education as a superior approach at both the federal and state level that avoids constitutional problems, but suggested that, if Congress does ultimately conclude a criminal law is needed for Problem #3, it would well to do look to how the states craft cyberharassment laws before creating any federal penalty.

Just about the time we finished our paper, Tennessee enacted a new law (PDF) that makes it a misdemeanor (up to 1 year in prison and a $2,500 fine) for making threats made online (cyberstalking) as well as certain instances of cyberharassment, defined as communications:

1. Made with “the malicious intent to frighten, intimidate or cause emotional distress”;
2. Made in a “manner the defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and
3. That actually result in making that person “frightened, intimidated or emotionally distressed.”

Prong #1 is essentially the same as the Sánchez bill (with the addition of the word “malicious”), while Prongs #2 and 3 somewhat increase the evidentiary burden faced by any prosecution under the law. So the bill suffers from many of the same problems that the Sánchez bill suffers from, which we discuss in our paper—most importantly, the bill would chill protected online speech because it is unclear when it would apply, and some online speakers would fear prosecution under the bill.

But what’s really disappointing here is that the original Tennessee bill at least recognized the critical importance of drawing distinctions by age.  It would have applied to specifically to harassing communications “with another person who is, or purports to be, less than 18 years of age” or to communications that cause “another person to be frightened, intimidated, or emotionally distressed, provided that the person’s response is one of a person of average sensibilities considering the age of the person.” While neither approach is quite what we recommend in our paper—if we’re going to criminalize anything, it should be adult-on-kid harassment—the original legislation was certainly better to what finally passed, which would likely fail to pass constitutional muster.

In a related context, Adam and I recently released another major paper detailing the serious consequences for online free speech of well-intentioned efforts to expand COPPA’s privacy protections for kids under 13 to cover all adolescents. There as here, while children under a certain age might be uniquely vulnerable and therefore require special protection (such as special penalties for cyberharassment by adults), we can’t treat everyone like small children without severely compromising freedom of expression online and the future vitality of the Internet itself. Again, this is why education is generally a better approach than criminalization.