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Wednesday, February 08, 2012

Criminalizing Cyberbullying and the Problem of CyberOverbreadth

In the past few years, reports have attributed at least fourteen teen suicides to cyberbullying. Phoebe Prince of Massachusetts, Jamey Rodemeyer of New York, Megan Meier of Missouri, and Seth Walsh of California are just some of the children who have taken their own lives after being harassed online and off.

These tragic stories are a testament to the serious psychological harm that sometimes results from cyberbullying, defined by the National Conference of State Legislatures as the "willful and repeated use of cell phones, computers, and other electronic communications devices to harass and threaten others." Even when victims survive cyberbullying, they can suffer psychological harms that last a lifetime. Moreover, an emerging consensus suggests that cyberbullying is reaching epidemic proportions, though reliable statistics on the phenomenon are hard to come by. Who, then, could contest that the social problem of cyberbullying merits a legal response?

In fact, a majority of states already have legislation addressing electronic harassment in some form, and fourteen have legislation that explicitly uses the term cyberbullying. (Source: here.) What's more, cyber-bullying legislation has been introduced in six more states: Georgia, Illinois, Kentucky, Maine, Nebraska, and New York. A key problem with much of this legislation, however, is that legislators have often conflated the legal definition of cyberbullying with the social definition. Though understandable, this tendency may ultimately produce legislation that is unconstitutional and therefore ineffective at remedying the real harms of cyberbullying.

Consider, for instance, a new law proposed just last month by New York State Senator Jeff Klein (D- Bronx) and Congressman Bill Scarborough. Like previous cyberbullying proposals, the New York bill was triggered by tragedy. The proposed legislation cites its justification as the death of 14-year-old Jamey Rodemeyer, who committed suicide after being bullied about his sexuality. Newspaper accounts also attribute the impetus for the legislation to the death of Amanda Cummings, a 15 year old New York teen who committed suicide by stepping in front of a bus after she was allegedly bullied at school and online. In light of these terrible tragedies, it is easy to see why New York legislators would want to take a symbolic stand against cyberbullying and join the ranks of states taking action against it.

The proposed legislation (S6132-2011) begins modestly enough by "modernizing" pre-existing New York law criminalizing stalking and harassment. Specifically, the new law amends various statutes to make clear that harassment and stalking can be committed by electronic as well as physical means. More ambitiously, the new law increases penalties for cyberbullying of "children under the age of 21," and broadly defines the activity that qualifies for criminalization under the act. The law links cyberbullying with stalking, stating that "a person is guilty of stalking in the third degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directing electronic communication at a child [ ], and knows or reasonably should know that such conduct: (a) causes reasonable fear of material harm to the physical health, safety or property of such child; or (b) causes material harm to the physical health, emotional health, safety or property of such child." (emphasis mine) Even a single communication to multiple recipients about (and not necessarily to) a child can constitute a "course of conduct" under the statute.

Like the sponsors of this legislation, I deplore cyber-viciousness of all varieties, but I also condemn the tendency of legislators to offer well intentioned but sloppily drafted and constitutionally suspect proposals to solve pressing social problems. In this instance, the legislation opts for a broad definition of cyberbullying based on legislators' desires to appear responsive to the cyberbullying problem. The broad statutory definition (and perhaps resorting to criminalization rather than other remedies) creates positive publicity for legislators, but broad legal definitions that encompass speech and expressive activities are almost always constitutionally overbroad under the First Amendment.

Again, consider the New York proposal. The mens rea element of the offensive requires only that a defendant "reasonably should know" that "material harm to the . . . emotional health" of his target will result, and it is not even clear what constitutes "material harm." Seemingly, therefore, the proposed statute could be used to prosecute teen girls gossiping electronically from their bedrooms about another teen's attire or appearance. Likewise, the statute could arguably criminalize a Facebook posting by a 20-year-old college student casting aspersions on his ex-girlfriend. In both instances, the target of the speech almost certainly would be "materially" hurt and offended upon learning of it, and the speakers likely should reasonably know such harm would occur. Just as clearly, however, criminal punishment of "adolescent cruelty," which was a stated justification of the legislation, is an unconstitutional infringement on freedom of expression.

Certainly the drafters of the legislation may be correct in asserting that "[w]ith the use of cell phones and social networking sites, adolescent cruelty has been amplified and shifted from school yards and hallways to the Internet, where a nasty, profanity-laced comment, complete with an embarrassing photo, can be viewed by a potentially limited [sic] number of people, both known and unknown." They may also be correct to assert that prosecutors need new tools to deal with a "new breed of bully." Neither assertion, however, justifies ignoring the constraints of First Amendment law in drafting a legislative response. To do so potentially misdirects prosecutorial resources, misallocates taxpayer money that must be devoted to passsing and later defending an unconstitutional law, and block the path toward legal reforms that would address cyberbullying more effectively.

With regard to criminal law, a meaningful response to cyberbullying--one that furthers the objectives of deterrence and punishment of wrongful behavior--would be precise and specific in defining the targeted conduct. A meaningful response would carefully navigate the shoals of the First Amendment's protection of speech, acknowledging that some terrible behavior committed through speech must be curtailed through educating, socializing, and stigmatizing perpetrators rather than criminalizing and censoring their speech.

Legislators may find it difficult to address all the First Amendment ramifications of criminalizing cyberbullying, partly because the term itself potentially obscures analysis. Cyberbullying is an umbrella term that covers a wide variety of behaviors, including threats, stalking, harassment, eavesdropping, spoofing (impersonation), libel, invasion of privacy, fighting words, rumor-mongering, name-calling, and social exclusion. The First Amendment constraints on criminalizing the speech behavior involved in cyberbullying depends on which category of speech behavior is involved. Some of these behaviors, such as issuing "true threats" to harm another person or taunting them with "fighting words," lie outside the protection of the First Amendment. (See Virginia v. Black and Chaplinsky v. New Hampshire; but see R.A.V and my extended analysis here.). Some other behaviors that may cause deep emotional harm, such as name-calling, are just as clearly protected by the First Amendment in most contexts. (Compare, e.g., Cohen v. California with FCC v. Pacifica).

But context matters profoundly in determining the scope of First Amendment protection of speech. Speech in schools and workplaces can be regulated in ways that speech in public spaces cannot (See, e.g., Bethel School Dist. No. 403 v. Fraser). Even within schools, the speech of younger minors can be regulated in ways that speech of older minors cannot (Cf. Hazelwood with Joyner v. Whiting (4th Cir)) , and speech that is part of the school curriculum can be regulated in ways that political speech cannot. (Compare, e.g., Tinker with Hazelwood). Outside the school setting, speech on matters of public concern receives far more First Amendment protection than speech dealing with other matters, even when such speech causes tremendous emotional upset. (See Snyder v. Phelps). But speech targeted at children likely can be regulated in ways that speech targeted at adults cannot, given the high and possibly compelling state interest in protecting the well-being of at least younger minors. (But see Brown v. Ent. Merchants Ass'n). Finally, even though a single instance of offensive speech may be protected by the First Amendment, the same speech repeated enough times might become conduct subject to criminalization without exceeding constitutional constraints. (See Pacifica and the lower court cases cited here).

Any attempt to use criminal law to address the social phenomenon should probably start with the jurisprudential question of which aspects of cyberbullying are best addressed by criminal law, which are best addressed by other bodies of law, and which are best left to non-legal control. Once that question is answered, criminalization of cyberbullying should proceed by identifying the various forms cyberbullying can take and then researching the specific First Amendment constraints, if any, on criminalizing that form of behavior or speech. This approach should lead legislators to criminalize only particularly problematic forms of narrowly defined cyberbullying, such as . While introducing narrow legislation of this sort may not be as satisfying as criminalizing "adolescent cruelty," it is far more likely to withstand constitutional scrutiny and become a meaningful tool to combat serious harms.

Proposals to criminalize cyberbullying often seem to proceed from the notion that we will know it when we see it. In fact, most of us probably will: we all recognize the social problem of cyberbullying, defined as engaging in electronic communication that transgresses social norms and inflicts emotional distress on its targets. But criminal law cannot be used to punish every social transgression, especially when many of those transgressions are committed through speech, a substantial portion of which may be protected by the First Amendment.

[FYI: This blog post is the underpinning of a talk I'm giving at the Missouri Law Review's Symposium on Cyberbullying later in the week, and a greatly expanded and probably significantly changed version will ultimately appear in the Missouri Law Review, so I'd particularly appreciate comments. In the article, I expect to create a more detailed First Amendment guide for conscientious lawmakers seeking to regulate cyberbullying. I am especially excited about the symposium because it includes mental health researchers and experts as well as law professors. Participants include Barry McDonald (Pepperdine), Ari Waldman (Cal. Western), John Palfrey (Berkman Center at HLS), Melissa Holt (B.U.), Mark Small (Clemson), Philip Rodkin (U. Ill.), Susan P. Limber (Clemson), Daniel Weddle (UMKC), and Joew Laramie (consultant/former direction of Missouri A.G. Internet Crimes Against Children Taskforce).]

Posted by Lyrissa Lidsky on February 8, 2012 at 08:37 AM in Constitutional thoughts, Criminal Law, Current Affairs, First Amendment, Information and Technology, Lyrissa Lidsky, Web/Tech | Permalink


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I, too, applaud states for "amend[ing] various statutes to make clear that harassment and stalking can be committed by electronic as well as physical means." But I also share your concern for overreaching. Why isn't adding "or by electronic means" enough? The answer seems to be some variation of, "Well, the Internet is different." And, to a limited extent, I agree. As you point out, the Internet seems to involve a greater level of permanence (although I dispute this in many instances) and it also makes negative information about someone easier to find (a Google search is less time consuming than reading the back of every bathroom stall). But is that inherently a bad thing? Some information wrongfully used by bullies is true. And useful. And stuff I'd want to know if the alleged bullying victim was applying to be my babysitter. Ultimately, I share legislators' concerns for these kids. It's hearbreaking, especially to us parents, and I hope they do (a little) something about it. But I also hope that someone is whispering into the legislators' ears (even if it goes right through them), "Psst. Some of this painfully stuff is true. And we should be careful about restricting the flow of truthful information in an effort to make kids stop being mean to each other."

Posted by: Heidi R. Anderson | Feb 9, 2012 4:18:23 PM

The harms associated with speech in cyber-space are often different than the harms of speech off-line, for some of the reasons Lyrissa aptly notes in her helpful reply to my question--that's the main reason it seems to me how the doctrine works in cyber-space may require rethinking, perhaps in the case-by-case way she describes.

Posted by: Brian | Feb 9, 2012 12:48:06 PM

I'm sympathetic to Brian's question, but perhaps in a different way than he intended (or not; I'm not purporting to read his mind). Given Brian's reference to the "horrible incidents at issue," the idea seems to be that the basic question of what kinds of speech (or harms) the First Amendment permits, or allows the government to regulate, needs to be rethought. I'm not sure I agree with that. But I do think there is room to ask about the size, shape, and nature of the categories we use in First Amendment analysis. Obviously, given my earlier comment, I don't always think some new domain demands radically different doctrine, or least not entirely. But it is certainly fair to ask whether some of the general conceptual categories we use in First Amendment law might be supplemented or replaced by other categories, categories that are more closely related to particular social domains or practices than to broad and fairly acontextual legal concepts. I'm not suggesting any particular outcomes here: maybe some of the conditions of cyberspace ought to allow for more governmental authority to regulate, and maybe some of those conditions counsel in favor of less governmental authority. But a different set of categories might provide us with a different set of answers; and even if the outcomes remained roughly the same, the analysis might be more coherent and sensible. Oddly enough, I make arguments to that effect in a book that will hopefully be out by the end of the year, although I'm substantially influenced by Fred Schauer's work over the last 15 or 20 years.

Posted by: Paul Horwitz | Feb 8, 2012 2:12:44 PM

Brian, there definitely are areas of existing doctrine that must be rethought, but the best solutions are likely to come from coupling a comprehensive understanding of how cyberbullying differs from offline bullying with a doctrine-by-doctrine analysis and modification of First Amendment law.

For example, one relevant (and terrible) difference between cyberbullying and offline bullying is that it creates a permanent record of the victim's abuse that carries into her adult life. It cuts off the victim's hope that she can ever escape her tormentors. This is something First Amendment doctrines should account for, perhaps by creating some sort of "take-down" remedy. However, existing doctrine stands in the way of implimenting such a "take-down" and must be rethought. We could also broaden existing remedies for invasion of privacy or intentional infliction to better account for this type of harm. But remedies such as these have to be carried out at the level of individual doctrines.

I suppose it makes me an incrementalist, but I don't agree that we need to "rethink First Amendment doctrine as applied to cyberspace." Instead, we need to rethink various First Amendment doctrines as applied to certain behaviors or speech abuses that occur within cyberspace, including, but not limited to, cyberbullying.

Posted by: Lyrissa | Feb 8, 2012 1:54:19 PM

Brian: In what way? You describe the First Amendment as if it weren't a backstop on authority, but as an exercise of authority. That may be true, but if it is true then "free speech" only means "that speech which the government permits."

It's too bad I see the ACLU coming down on the side of these statutes. Historically, the ACLU would have fought them tooth-and-nail. But with Tony Romero, and the fact that these statutes are potential clubs to beat those with impermissible views on homosexuality, the ACLU is actually SUPPORTING these efforts.

Posted by: AndyK | Feb 8, 2012 1:14:35 PM

It would be interesting to hear your thoughts on why, in light of the horrible incidents at issue, it isn't time to rethink First Amendment doctrine as applied to cyberspace. I don't doubt you're right that many of hte current legislative efforts are unconstitutional given existing doctrine. But perhaps existing doctrine needs to be rethought? Just a suggestion.

Posted by: Brian | Feb 8, 2012 12:14:46 PM

Frankly, I meant it to be a little tongue in cheek. I, too, hate the notion that just because we attach the label "cyber" to some legal problem, we must invent entirely new legal tools rather than examining what aspects of the problem are truly new and adapting existing doctrines to cope. The title of the article is "Coming to Terms with Cyberbullying."

Posted by: Lyrissa | Feb 8, 2012 10:08:29 AM

Lyrissa, this looks very good. But I encourage you to drop the neologism "CyberOverbreadth" and call it just plain "Overbreadth." Of course it's just a point of style, but it has a substantive point, which I take it is quite consistent with what you're saying here: that while cyberbullying may be a unique form of bullying or present unique problems, existing doctrine does not disappear simply because someone has added the prefix "cyber" to the discussion. Of course our responses to particular situations must be tailored to those situations, and of course our doctrine may end up changing in response to new contexts, but there is still a through-line, and we ought to be aware of but not dazzled by the "cyber" aspects of the phenomenon.

Posted by: Paul Horwitz | Feb 8, 2012 8:46:39 AM

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