How not to criminalize cyberbullying.

• Author: Lidsky, Lyrissa

1. INTRODUCTION

   Cyberbullying, like its "offline" counterpart, is a form of social aggression, (1) but cyberbullying differs from traditional bullying in significant and disturbing ways. (2) Geography no longer limits the bully's reach, (3) and the humiliating words or images deployed via computers or cell phones can cause serious emotional trauma (4) and create a record that haunts the victim into adulthood (5)--if he or she reaches it. In the past decade, cyberbullying has contributed to the suicides of far too many children, (6) including Phoebe Prince of Massachusetts, (7) Amanda Todd of British Columbia, (8) and Megan Meier of Missouri. (9) Their tragic stories testify to the severity of harm cyberbullying can inflict, and researchers are concerned that the number of victims is reaching epidemic proportions. (10)

   In this climate, it is no wonder that public officials have called for the "elimination" (11) or "eradication" (12) of cyberbullying, and legislators have proposed and enacted a variety of new laws to curb it. Much of this important new legislation places schools at the vanguard of the anti-bullying campaign, (13) requiring them to formulate policies and discipline perpetrators. (14) A growing body of legislation, however, targets cyberbullies with criminal sanctions. Most states have electronic harassment or stalking statutes that can be used against some types of cyberbullying, (15) and a growing number of states have legislation explicitly using the term "cyberbullying." (16) In addition, as of the summer of 2012, six states--Georgia, (17) Kentucky, (18) Maine, (19) Nebraska, (20) New York, (21) and Arizona (22)--were contemplating passage of criminal cyberbullying laws. At the federal level, Congress introduced, but did not pass, a cyberbullying law. (23)

   The legislative zeal that leads to criminalization is understandable. For legislators to stand by while children die is politically unpalatable and morally indefensible. (24) Yet reflexive criminalization of common childhood wrongdoing, especially when committed through speech, leads to pernicious consequences. Criminal laws that zealously target cyberbullying risk "overcriminalizing" (25) it by creating new crimes that overlap with existing ones. (26) New cyberbullying statutes, for example, may overlap existing crimes (27) of assault, battery, eavesdropping, wiretapping, or threat-making, creating the prospect that "cyberbullies," many of whom are likely to be adolescents, will be punished disproportionately to their crimes when an overzealous prosecutor deploys the multiple charges at his or her disposal. This Article, however, leaves elaboration of the problem of "disproportionate punishment" to scholars of criminal law (28) and instead focuses primarily on the threat criminal cyberbullying laws pose to freedom of speech. (29)

   Viewed from a First Amendment perspective, criminal cyberbullying laws seem especially prone to overreach in ways that offend the First Amendment, resulting in suppression of protected speech, misdirection of prosecutorial resources, misallocation of taxpayer funds to pass and defend such laws, and the blocking of more effective and constitutionally permissible reforms.

   The critical constitutional flaw in much of the new criminal legislation is that, in its attempt to "eliminate" cyberbullying, it conflates the definition of cyberbullying as a social problem with the legal definition of cyberbullying as a crime, leading to laws that violate the First Amendment. Cyberbullying as a social problem is broad in scope: it is a form of social or relational aggression (30) perpetrated by perhaps as many as a third of adolescents, (31) and it takes many forms. Various definitions have been offered. Consider, for instance, the broad definition the federal government's interagency working group has provided. Cyberbulling is

   any type of harassment or bullying (teasing, telling lies, making fun of someone, making rude or mean comments, spreading rumors, or making threatening or aggressive comments) that occurs through e-mail, a chat room, instant messaging, a website (including blogs), text messaging, and videos or pictures posted on websites or sent through cell phones. (32) Other definitions tend to focus on the repeated nature of the wrongful conduct. The National Conference of State Legislatures, for example, defines cyberbullying as the "willful and repeated use of cell phones, computers, and other electronic communication devices to harass and threaten others." (33) These definitions are useful in devising broad policy responses, and may even be useful for some legislative purposes, such as establishing response plans for public schools. (34) First Amendment principles, however, demand that lawmakers use narrower, perhaps less politically satisfying, definitions.

   This Article demonstrates this thesis by conducting sustained "case studies" of recent legislative efforts to criminalize cyberbullying and diagnosing their First Amendment infirmities (Part II). To prevent similar infirmities in future legislation, this Article then provides a First Amendment primer to guide law-makers in distinguishing the kinds of cyberbullying that must be addressed through educating, socializing, and stigmatizing perpetrators from those that can be censored and criminalized (Part III). If law-makers heed the advice provided here, resources can be marshaled more effectively in the future to combat cyberbullying.

2. CYBERBULLYING CRIMINALIZATION CASE STUDIES

   Laws criminalizing cyberbullying fall into two categories: some of these laws modernize existing criminal laws, especially harassment or stalking laws, to encompass cyberbullying. Others start from scratch in crafting new criminal laws aimed at cyberbullying. Both paths are fraught with First Amendment perils and pitfalls, which can be illustrated by examining selected legislative efforts. In the first category, Missouri's attempt to modernize its existing harassment law is especially worthy of sustained attention. (35) A Missouri teen's 2006 suicide was the signal event that galvanized national attention around the problem of cyberbullying and led to calls for legal reforms. The lessons gleaned from Missouri's experience can be generalized to the many other states that have followed its legislative path. Missouri's experiences also raise the issue whether legislators would be better off drafting laws that fall into the second category--creating new laws rather than amending old ones. Though relatively few states have taken this path yet, this article will examine their legislation and provide guidance for those states wishing to follow their path.

   1. Tragedy as Impetus for Reform

      The impetus for legal reform in Missouri, as in many other states, (36) was a cyberbullying tragedy. Missouri teen Megan Meier took her own life shortly before her fourteenth birthday (37) in response to social media bullying by Lori Drew. The forty-nine-year-old Drew, who lived just four doors down from Megan, opened a MySpace account as sixteen-year-old "Josh Evans," in order to correspond with her; (38) evidently, Drew believed Megan may have been spreading rumors about her daughter, and she enlisted the help of an eighteen year-old employee in exacting retribution. (39) After winning Megan's trust, "Josh" cruelly ended the relationship by sending an email to Megan stating "[t]he world would be a better place without you." (40) Megan emailed back, "You're the kind of boy a girl would kill herself over." (41) Roughly fifteen minutes, Megan took her own life. (42)

      Like most other states at the time, Missouri had no laws explicitly criminalizing cyberbullying of Meier's death. Perhaps as a result, state prosecutors felt they lacked a basis to charge Drew, (43) which prompted a federal prosecutor to "creatively" interpret federal law to charge Drew with a criminal violation under the Computer Fraud and Abuse Act of 1986 (the "Act"). (44) A jury convicted Drew of, "defrauding" MySpace by misrepresenting her identity and motive to open an account. (45) The jury found that Drew accessed a computer involved in interstate communication without authorization or in excess of authorization (that is, in violation of MySpace's terms of Service) to obtain information. (46) However, the trial court overturned the verdict and acquitted Drew, reasoning that the Act was unconstitutionally vague in this instance because it did not put Drew on notice that the breach of the terms of service could be a crime. (47) The trial court also stated that the Act did not provide guidance for law enforcement regarding when to enforce a breach of terms of service as a criminal act. (48) Without "clear guidelines" or "objective criteria" "as to [the] prohibited conduct," "federal law enforcement ... would be improperly free 'to pursue their personal predilections.'" (49) Drew therefore escaped criminal punishment for her conduct, (50) though she suffered severe social censure. (51)

   2. The Constitutional Hazards of Modernizing Criminal Harassment Laws: A Case Study

      Responding to the national outrage over the apparent inability of the criminal law to sanction Lori Drew's vicious cruelty to Megan Meier, policy makers in Missouri and elsewhere sprang into action. The Missouri legislature's approach involved both education (53) and criminalization. Missouri's new "Megan's Law" not only required every Missouri school district to have in place an anti-bullying policy, (54) but also mandated that school officials report electronic harassment or stalking of their students, as redefined in response to the Megan's case. (55)

      "Modernization" of pre-existing criminal harassment and/or stalking statutes is a common legislative response to the problem of cyberbullying. (56) (57) Missouri's legislature took this route in responding to Meier's suicide; the legislature amended Missouri's criminal harassment (58) and stalking (59) statutes in 2008 to...