Constitutional Law

I Dare You to Come Online and Say That

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At a House hearing yesterday, Berin Szoka and Adam Thierer of the Progress and Freedom Foundation laid out the problems with the absurdly broad Megan Meier Cyber Bullying Prevention Act. Under the bill, introduced by Rep. Linda Sanchez (D-Calif.), anyone convicted of "using electronic means to support severe, repeated and hostile behavior…with the intent to coerce, intimidate, harass or cause substantial emotional distress to a person" would be subject to a prison sentence of up to two years. Although Sanchez has said her motivation is protecting children from harassment by adults, Szoka and Thierer note, her bill also applies to interactions between adults and between minors. Furthermore, it arbitrarily treats online behavior more severely than its offline equivalent:

Her legislation sets up a starkly different standard for online bullying as compared to offline bullying. If the statements made in the Lori Drew case [the MySpace hoax that seems to have precipitated the suicide of 13-year-old Megan Meier] were made on a playground, the perpetrator might face a stern conversation with the principal and possibly suspension….But if the same comment were sent via email or posted on a social networking site, such a bully would be subject to potential federal prosecution under Rep. Sanchez's bill. Consequently, that individual would fave the prospect of a felony sentence of two years' incarceration in a federal prison, even though this has traditionally not been the approach applied to real-world bullying.

Relying heavily on the analysis of UCLA law professor (and Reason contributor) Eugene Volokh, Szoka and Thierer detail the First Amendment problems raised by Sanchez's bill, which could be read to criminalize a wide range of constitutionally protected speech, including criticism of public officials, customer complaints, and angry exchanges with ex-lovers:

Attempting to distinguish between actual harassment and what may be nothing more than routine online "flaming" (i.e., heated online exchanges) is no easy task. In particular, the Sanchez bill offers no clear standard by which judges and juries should distinguish between unprotected "coercion" (say, e-mail harassment of an ex-boyfriend) and "coercion" in an effort to get someone to change a political or philosophical position (say, repeated and hostile blog postings).

Because the reach of the bill is unclear, Szoka and Thierer note, it also seems to violate the Fifth Amendment's Due Process Clause, which requires that people have clear guidelines for staying within the law. Although they concede that "peer-on-peer cyberbullying is a more significant online safety concern than child predation" (the threat of which, they show, has been greatly exaggerated), they advocate education rather than criminalization.

Szoka and Thierer's testimony here (PDF). More on Sanchez's bill here and here. More on the Megan Meier/Lori Drew case here.