Should Anti-cyberbullying Laws Be Created?

• Publication year: 2007
• Citation: Vol. 9 No. 2007

Matthew C. Ruedy⁰

In 2006, thirteen-year-old Megan Meier met a teenage boy named Josh Evans on the social networking website MySpace. The two had an amicable relationship until Josh began making derogatory comments to Megan. The correspondence ultimately resulted in her suicide. Months later, "Josh" was revealed to be the collective creation of forty-seven-year-old Lori Drew, her teenage daughter, and her part-time employee, Ashley Grills. Megan's suicide has pushed forward legislation for the criminalization of cyberbullying, which can be defined as action or behavior on the Internet intended to hurt or harass another person. This Comment discusses the issues and challenges associated with creating cyberbullying laws, from the decision to create such laws in the first place, to the difficult First Amendment restrictions posed by the "true threat" and "imminent incitement" doctrines.

I. Introduction

Megan Meier was a thirteen-year-old girl in Dardenne Prairie, Missouri, who, like many of her peers, had a profile on the social networking website MySpace.¹ She was a middle school student afflicted with depression and attention deficit disorder.² Megan described herself in the following way on her MySpace profile: "M is for Modern. E is for Enthusiastic. G is for Goofy. A is for Alluring. N is for Neglected."³ With her parents' approval, Megan began corresponding with a sixteen-year-old named Josh Evans.⁴ Through a series of tragic events, Megan's online interactions with Josh on MySpace would push her to commit suicide and shock the nation.

Megan met Josh in September 2006 through her MySpace profile and started an amicable online relationship that lasted over a month.⁵ However, her relationship with Josh changed abruptly on October 15, 2006, when he wrote statements on her MySpace profile such as, "the world would be a better place without you."⁶ Later that night, Megan's mother found her hanging from her closet;⁷ she died the next day.⁸

The story of Megan's suicide was tragic, but six weeks after her death, the circumstances surrounding her suicide took a strange and appalling turn. Megan's parents discovered that "Josh" never actually existed. "Josh" was initially reported as an online alias for forty-seven-year-old Lori Drew, the mother of one of Megan's friends who lived four houses away from the Meiers.⁹ Drew created the alias to find out how Megan felt about her daughter.

Naturally, there was strong public outrage once the story of Megan's suicide caught national attention on news reports and Internet websites a year after her death.¹⁰ Drew's name was not released in the initial reports, provoking a Web blogger to search out the fake boyfriend's identity and post Drew's name on her blog.¹¹ Soon after Drew's identity was revealed, "readers and other bloggers followed by finding and posting her husband's name, the family's address and phone number, a cell phone number, the name of the family's advertising company, and the names and phone numbers of clients with whom they worked."¹² The public's outrage stemmed not only from Drew's lack of moral judgment, but also from the fact that she would escape criminal prosecution because she did not break any current laws by her Internet communications with Megan.¹³

Months after the initial reports that Drew was "Josh Evans" on MySpace, Ashley Grills, Drew's part-time employee, admitted that she had created the "Josh Evans" account along with Drew and Drew's daughter.¹⁴ Grills admitted that she was the one who wrote the final message: that the "world would be a better place without you."¹⁵ Grills alleged that Drew wrote messages to Megan as "Josh Evans" only a "couple times."¹⁶

Regardless of who wrote the various statements to Megan as "Josh Evans," the story brings up the issue of protecting children online from online cyberbullying. "Cyberbullying" is a term used to describe "use of the Internet, cell phones, or other technology to send or post text or images intended to hurt or embarrass another person."¹⁷ Cyberbullying has traditionally dealt with the victimization of minors.¹⁸ Cyberbullying can occur anywhere online, including "Internet websites, chat rooms, anonymous electronic bulletin boards, instant messaging, and other web devices."¹⁹ Statements amounting to cyberbullying do not have to be sent directly to the victim. Indirect activities, such as posting a rumor on a public message board, can also be acts of cyberbullying. Although the term cyberbullying is sometimes used interchangeably with the term cyberstalking, the two behaviors are different, as cyberstalking often includes credible threats both online and offline,²⁰ while cyberbullying usually does not.

Megan's suicide has brought the issue of creating anti-cyberbullying laws to the nation's attention. Megan's hometown, Dardenne Prairie, Missouri, passed an anti-cyberbullying law in response to her suicide.²¹ Similarly, the Pennsylvania legislature has planned to propose an anti-cyberbullying law in direct response to Megan's death.²² Regardless of whether the Pennsylvania law passes, legislators everywhere must be cautious in choosing whether to make cyberbullying a crime. Currently, a gap exists between federal and state laws against cyberstalking.²³ The introduction of cyberbullying laws will only further complicate the challenges associated with prohibiting such behavior on the internet.

This Comment discusses the issues related to the potential criminalization of cyberbullying as well as the subsequent issues and challenges stemming from making such laws. Part ii introduces the concept of cyberbullying and its prevalence among minor children. Part iii looks at current computer crime laws and the origins of anti-cyberbullying laws. Part iv presents newly proposed anti-cyberbullying laws. Finally, Part v discusses how the First Amendment relates to, and restricts, any potential anti-cyberbullying laws.

II. Cyberbullying

The term "bullying" brings up connotations of a schoolyard playground where one child imposes mental or physical abuse on another. Yet, as evidenced in Megan's case, "cyberbullying" can occur anywhere and by anyone, regardless of age. Cyberbullying has the potential to have a far greater impact than traditional bullying because of the public nature of the Internet and the ease of distribution of information.²⁴ The dangers of cyberbullying on the Internet are exacerbated by the anonymous nature of the Internet, as people are "more likely to communicate messages on the Internet that they would not say to another person's face."²⁵

Internet use is exceptionally prevalent among teenagers. According to a 2002 study, ninety-seven percent of teenagers between ages twelve and eighteen use the Internet in some form.²⁶ The study also showed that the average teenager was online for over eleven hours per week.²⁷ A separate study revealed that forty-five percent of teenagers have a personal cell phone, and one-third communicated through text-messaging.²⁸

A recent study by Dr. Robin Kowalski and Dr. Susan Limber evaluated the frequency of cyberbullying among middle school students.²⁹ The study surveyed a sample of middle school students and found that eleven percent had been victims of Internet bullying during the months prior to the study.³⁰ The study also showed that seven percent had served as both the bully and the victim on different occasions,³¹ and four percent reported being only bullies on the Internet.³² Roughly half of the victims did not know the identity of their cyberbully.³³ In a separate study, researchers found that cyberbullying peaked in middle school and declined in high school.³⁴

The Internet provides gateways for new social interactions but also gives bullies new avenues and techniques to harass others. Social networking websites like MySpace allow users to send messages to each other with a simple click of a mouse. Minors are especially at risk of being victimized on social networking websites because communications are not restricted unless a parent or guardian steps in to supervise the online activity. MySpace only requires that a user be fourteen years of age and does not require parental approval.³⁵ MySpace does reserve the right to terminate the membership of a person who harasses or advocates the harassment of another,³⁶ yet MySpace explicitly states that it "assumes no responsibility for monitoring the MySpace Services for inappropriate content or conduct."³⁷ MySpace also warns teens, parents, and educators about the dangers of cyberbullying,³⁸ but ultimately it is the responsibility of both the teenage users and their parents to safeguard against the dangers of online activity.

Clearly, the frequency of Internet use by minors combined with the popularity of social networking websites can lead to a potential high frequency of cyberbullying. Any minor using the Internet may be subject to cyberbullying through any facet of the Internet: websites, instant messaging, blogs, chat rooms, online video games, message boards, social networks, or other areas of the Internet. Cyberbullying has generally been associated with the victimization of minors, yet the term has evolved to include adults as well.³⁹ Due to the unclear definition of cyberbullying, any potential regulation of cyberbullying should address whether protection should extend only to minors or to Internet users of all ages.

III. Current Computer Crime Laws

The nation has reacted strongly to Megan's suicide, demanding that Lori Drew be prosecuted for her actions.⁴⁰ The federal government and most states do not recognize cyberbullying as a separate crime. Although federal laws that protect people from harassment across interstate borders exist, prosecutors are forced to try to fit cyberbullying behavior into current harassment and stalking statutes. The fit achieved is tenuous at best. A summary of current communications and computer crime laws is helpful in determining the boundaries of any potential...