The Legal Difficulties of Fighting Cyberbullying

Students pay their respects to Tyler Clementi, a victim of cyberbullying.

Photo by EMMANUEL DUNAND/AFP/Getty Images

The worst restrictions on freedom of speech often arise from the best of intentions. Case in point: An ambitious cyberbullying law in Albany County, New York that was recently struck down by the state’s highest court as a First Amendment violation. Certain provisions of the statute outlawing “annoy[ing] … communication,” the court found, were so broad that it could “criminalize a broad spectrum of speech outside the popular understanding of cyberbullying.” As a result, the whole law had to go.

Because curbing online bullying is such an obviously worthy goal, it’s easy to find fault with the New York court, as did Tyler Clementi’s parents. (Clementi killed himself after facing anti-gay bullying online, and cyberbullying disproportionately affects LGBTQ people.) But the real fault here lies in the Albany County Legislature, which inexplicably expanded a narrow restriction into a new censorship regime that could send teenagers to jail for making jokes on Facebook. Legislatures—including the United States Congress—pass overbroad statutes all the time, and the usual solution is simply to rewrite the statute with firmer limitations. Cyberbullying, however, is such a brave new world that it’s difficult to determine exactly how to outlaw it—or whether it can be constitutionally outlawed at all.

That’s not to say that plenty of states haven’t tried. About 20 states currently have a law on the books targeting cyberbullying, and several more may soon follow suit. The strongest of these statutes largely avoid the censorship question by granting schools the authority to discipline students who make online threats toward other students. Somewhat broader but just as sensible are the cyberbullying restrictions that merely extend existing stalking and harassment laws to the Internet. Threatening someone with murder qualifies as harassment whether you do it in an email or on the sidewalk. Forbidding students (and everyone else) from directing death threats and cruel, obscene abuse toward others is both good policy and good law.

But several of these statutes include provisions that set off serious First Amendment alarm bells. Here, Maryland leads the pack, with a startling law that prohibits using a computer “in a course of conduct that inflicts serious emotional distress.”* The statute does carve out exceptions for “expressing political views” and “conveying information,” but this rather weak saving clause wasn’t enough to justify the statute for the ACLU, which labeled it an unconstitutional effort to “criminalize speech.”

And even if the Maryland legislature had no intention to criminalize vast swathes of speech with its cyberbullying statute, that’s pretty clearly what it did. Under the statute, a student could potentially be fined and imprisoned for coarsely ridiculing Christianity on Facebook, for tweeting about gay people’s damned souls, even for reposting images of the Westboro Baptist Church’s protected speech. It all depends on how a prosecutor chooses to interpret the provision—and the Maryland law is so broadly written that even a well-intentioned prosecutor could use it to blow a hole through students’ First Amendment rights.

Why would legislatures sympathetic to students pass reckless statutes that trample over their rights? Probably for the same reason that Europe is pushing misguided “right to be forgotten” laws. The openness of the Internet is forcing judges and legislatures to reevaluate the accepted balance between speech and privacy, expression and seclusion. In Europe, the scale has tipped unmistakably toward privacy; in the United States, free speech principles have largely forestalled any such debate—even when children enter the picture. Although states might have a freer hand in regulating schoolchildren’s speech, the Supreme Court recently proclaimed that the government has no “free-floating power to restrict the ideas to which children may be exposed.”

Yet cyberbullying laws remain a vital tool in curbing the kind of insidious intimidation so often directed toward students—especially LGBTQ ones. That’s what makes efforts like New York’s and Maryland’s so disappointing: In their overzealousness to protect students, legislators wound up setting the cause back. Moving forward, lawmakers would do well to look to states like Louisiana, whose cyberbullying statute builds on traditional harassment laws and resists the urge to outlaw annoying and offensive speech as well. Kids have a right to say stupid stuff online. It’s perfectly possible to respect that right without giving them carte blanche to drive their classmates to despair.

*Correction, July 15, 2014: This post originally linked to Maryland bill HB 17 when discussing Maryland’s cyberbullying law. The link has been updated.