Cyberbullying News: Parts of Missouri's Cyberharassment Law Unconstitutional

In 2006, Missouri teen Megan Meier committed suicide after being "cyberbullied" on MySpace by Lori Drew, a former friend's 49-year-old mom. Megan's suicide in response to Drew's cruel online hoax galvanized national attention around the problem of cyberbullying and prompted widespread calls for legal reforms. Missouri, naturally, was one of the first states to respond.  There, state legislators modernized and updated their existing cyberharassment and cyberstalking laws in an attempt to cover conduct such as that that led to Megan's suicide.  A week and a half ago, the Missouri Supreme Court dealt a setback to Missouri's efforts to combat cyberbullying by striking down a portion of the amended harassment law , and its decision may contain lessons for those pushing new legislation to criminalize bullying.    

Notably, Missouri v. Vaughn, the Missouri Supreme Court's decision striking down portions of the law under the First Amendment, did not involve cyberharassment.  Instead, it involved a defendant who repeatedly telephoned his ex-wife, leading prosecutors to charge him under  subdivision (5) of Mo. Rev. State 565.090.1 for ""knowingly mak[ing] repeated unwanted communication to another person," and under subdivision (6) for "[w]ithout good cause engag[ing] in an[ ] act with the purpose to frighten, intimidate, or cause emotional distress to another person, [which does in fact] cause such person to be frightened, intimidated, or emtionally distressed, and such person's response to the act is one of a person of average sensibility considering the age of such person."    

The court held that section 565.090.1(5) was constitutionally overbroad, despite the State's proffer of a narrowing construction that would have made the statute applicable only when the defendant's communications were repeated, unwanted, and targeted at a "particularized person," whatever that means. The court held that "[e]ven with the State's suggested constructions, subdivision (5) still criminalizes any person who knowingly communicates more than once with another individual who does not want to receive the communications."  The court gave examples illustrating subdivision (5)'s overbreadth, noting that it would apply to peaceful picketers or teachers calling on students once asked to stop. The court also found that the statute stretched well beyond what might be justified by the protection of residential privacy or "captive audience" members. The court therefore "severed" and struck subdivision (5) from the statute.

The court, by contrast, upheld subdividision (6) by reading it narrowly to address only fighting words and finding that prohibition of speech made "without good cause" was not vague. Section 565.090.1(6) makes it a crime to "[w]ithout good cause engage[ ] in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person's response to the act is one of a person of average sensibilities considering the age of the person."  The court found that the legislature's exclusion of "the sorts of acts for which there could be good cause" meant that it only applied to expressive conduct that was intended to and actually did provoke "immediate substantial fright, intimidation, or emotional distress." (emphasis in original)  Though the reasoning is opaque [I'm being generous], the court seemed to believe that the "legislature's intent" underlying the good cause requirement transformed the statutory provision into one that only addressed "unprotected fighting words." Specifically, the court stated: "because the exercise of constitutionally protected acts clearly constitutes 'good cause,' the restriction of the statute to unprotected fighting words comports with the legislature's intent."

Separately, the court found that subdivision (6) was not vague. According to the court, there is a "common understanding" regarding what would "frighten, intimidate, or cause emotional distress" to a reasonable person. More dubiously, the court asserted that the "good cause" language of the statute would give a citizen adequate notice of what expression was unprotected by the statute as well as adequately constrain law enforcement discretion.  Relying on prior case law, the court stated: "'Good cause' in subdivision (6) means 'a cause that would motivate a reasonable person of like age under the circumstances under which the act occurred." Although earlier in the opinion, the court seemed to equate "good cause" with "protected by the First Amendment," here the court seemed to be using a standard legal definition of good cause, meaning done with justifiable motive. Regardless, court's determination that the "good cause" language is not vague is certainly contestable. 

Although the court upheld subdivision (6), the victory is probably a pyrrhic one for advocates of broad laws to address bullying behaviors.  The court apparently saved the constitutionality of subdivision (6) by adopting a ridiculously strained interpretation of it; under this interpretation, it only covers fighting words--those "which by their very utterance inflict injury or tend to incite an immediate breach of peace"--as defined by the Supreme Court in its 1942 decision in Chaplinsky v. New Hampshire.  It is worth noting that the Supreme Court has not upheld a conviction for the utterance of fighting words in the seventy years since it decided Chaplinsky. Moreover, as Rodney Smolla has noted, there is a "strong body of law expressly limiting the fighting words doctrine to face-to-face confrontations likely to provoke immediate violence."  In other words, the Missouri Supreme Court's interpretation of subdivision (6) makes it difficult to use as a tool for addressing cyberharassment, since it is unlikely to trigger immediate violence in the manner envisioned by Chaplinsky.

There are no doubt more conclusions to be drawn from Missouri v. Vaughn, and I hope to draw them in an article that my co-author Andrea Pinzon Garcia and I are rushing to complete. That article is currently called Coming to Terms with Cyberbullying as Crime, though the title is subject to change. Look for a link to it here or on SSRN before the end of the month.