High-tech words do hurt: a modern makeover expands Missouri's harassment law to include electronic communications.

• Author: Henderson, Andrew M.

Missouri Revised Statute [section] 565.090

1. INTRODUCTION

   Megan Meier was 13 years old when she committed suicide on October 16, 2006. (2) Afterwards, it came to light that she was the victim of "a cruel cyber hoax" that began as a MySpace friendship with a 16 year-old boy named Josh Evans. (3) Soon after the two teenagers became friends, Josh began insulting Megan in various ways. (4) For instance, on October 15, 2006, Josh sent a message saying "'I don't know if I want to be friends with you any longer because I hear you're not nice to your friends.'" (5) Megan's father claimed that that he saw another message from Josh sent on October 16, 2006, that said "th[is] world would be better off without [you]." (6) That evening, Megan committed suicide. (7)

   Six weeks after Megan's death, her family received the shocking news that Josh Evans did not exist. (8) Instead, they learned that "Josh Evans" was the creation of a neighborhood mom, Lori Drew, who wanted to see if Megan would say anything negative about Drew's daughter. (9) Despite Josh Evans' deceitful actions, no state charges were brought against any individuals involved in Megan's death. (10) This is because the behavior that prompted Megan to commit suicide was not a criminal act under Missouri law. (11) Sending harassing messages through electronic communications, such as the ones that led to Megan's death, is called cyberbullying. Further, one commentator recently coined suicide as a result of being bullied online as "Bullycide." (12) The Meier incident and others have put pressure on the Missouri Legislature to make internet harassment and cyberbullying a crime by amending [section] 565.090 of the Missouri Revised Statues. (13)

   This Article will examine, inter alia, whether actions that qualify as cyberbullying could be considered harassment when done in person. More specifically, Part II of this Article will provide an explanation of cyberbullying, discuss the application of Missouri harassment law before the recent amendments, and detail relevant First Amendment issues as they pertain to harassment statutes. Part III will review Missouri's recently amended harassment statute, Missouri Revised Statute [section] 565.090. Further, Part III will explore the effectiveness of current and pending federal statutes that might prosecute cyberbullies. Part IV will discuss the likely issues that a court must resolve in order to apply the revised statute. Lastly, this article will argue that having an effective federal cyberbullying law is essential to punishing and preventing harassment by electronic means.

2. LEGAL BACKGROUND

   1. What Is Cyberbullying?

      Bullying is when someone takes repeated action in order to control another person. (14) With the widespread use of the Internet in the United States, a new form of bullying has emerged called "cyberbullying." (15) "'Cyberbullying' is when a child, preteen or teen is tormented, threatened, harassed, humiliated, embarrassed or otherwise targeted by another child, preteen or teen using the Internet, interactive and digital technologies, or mobile phones." (16) While typical cases of cyberbullying focus on young people, adults can also be involved in such behavior. In fact, Missouri law prohibits both adults and juveniles from committing such acts, and punishes the former more harshly. (17)

      People often confuse the terms cyberbullying and cyberstalking. However, the two are different because "cyberstalking often includes credible threats both online and offline, while cyberbullying usually does not." (18) In addition, cyberstalking is dealt with through stalking laws, (19) while cyberbullying is covered in harassment laws.

      According to a recent study by the National Crime Prevention Council (NCPC), forty-three percent of teens were victims of cyberbullying in the last year. (20) Over eighty percent of teens claim that cyberbullying takes place because the perpetrator finds humor in it. (21) Other reasons for cyberbullying include friends pressuring each other to cyberbully and ignorance of the "negative impact it may have on the victim." (22) Cyberbullies can be peers, neighbors, or even anonymous individuals, (23) but most of the time the perpetrators know their victims. (24)

   2. Harassment in Missouri Before Cyberbullying

      Both Missouri and other states that have criminalized cyberbullying have done so by amending existing harassment laws to include electronic communications. (25) Prior to this amendment, however, many cases permitted Missouri courts to examine the harassment statute's validity. As such, analyzing these harassment cases is necessary as they will demonstrate the types of challenges that courts will face in the future when defendants argue that the new language affects the settled validity of the statute.

      As interpreted by Missouri courts, harassment includes the use of "coarse language offensive to one of average sensibility." (26) Several elements factor into determining harassment, including where the statement was made, who made it, to whom it was made, and the speaker's intention. (27) The perpetrator's intention can be, and often is, proven by circumstantial evidence. (28) Further, intent to harass can be found when repeated contact is made with the victim, regardless of whether the victim has asked the harasser to cease contact. (29) The Missouri Court of Appeals upheld this principle in the case of State v. Creech. (30) In this case, the defendant made repeated calls to the victim, inquiring about sex, after the victim rejected the defendant's advances. (31) The Missouri Court of Appeals affirmed the defendant's conviction for harassment, noting that the defendant's calls created "intent to disturb." (32) In making this determination, the court noted that the defendant's actions are judged as a whole, instead of only after he was told to stop. (33)

      Similarly, in State v. Koetting the same court affirmed the defendant's harassment conviction. (34) Koetting made repeated threatening calls to the victim's house, as many as twelve over a thirty-six day period. (35) At one point, Koetting even threatened to "knock [the victim's] head off." (36) The court found this behavior unacceptable because "[c]oarse language directed specifically to an average person is likely to be offensive." (37) In addition, the court noted that protecting a private recipient from unwanted communication is a compelling government interest. (38) The location of the calls was important because the offensive character of the statements increases when in the privacy of a person's home. (39)

      These cases give insight into factors a court might look at when applying the amended harassment statute to cyberbullying. These factors include the intent of the perpetrator, the characteristics of the victim, and the location of the communication. Also, a court might engage in a constitutional analysis if the validity of the statute is challenged.

   3. Constitutional Background

      Any law that restricts speech, no matter how socially unacceptable that speech is, must pass the protections of the First Amendment to the United States Constitution. (40) However, the First Amendment's free speech protection has exceptions, most notably that the government may proscribe some categories of expression as long as the restriction is consistent with the Constitution. (41) The following is a discussion of speech that may be regulated and other free speech concerns implicated by criminalizing cyberbullying.

      1. True Threats

         Judicial interpretation of the First Amendment allows a state to proscribe "true threats." (42) In Virginia v. Black, the United States Supreme Court held that "true threats" include "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." (43) Because of the nature of "true threats," the Court held that they can be proscribed because the government should be able to "[protect] individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur." (44)

         Despite the holding in Black, the United States Supreme Court has failed to provide exhaustive guidance on what constitutes a "true threat." Nevertheless, the circuit courts have followed two predominant approaches in evaluating whether a statement reaches such a level. (45) The first approach, which has been adopted by the Eighth Circuit, is whether a reasonable recipient would have interpreted the statement as a serious expression of intent to harm or injure another. (46) The second view is whether a reasonable speaker would foresee that the target would interpret his or her statement(s) as a serious expression of intent to harm or injure. (47) Neither approach requires that the speaker intend to carry out the threat or even that the speaker is capable of carrying it out. (48) However, for the speaker of the threat to be punished under either approach, he or she must have intentionally or knowingly communicated the statement in question to the object of the threat or to a third party. (49)

      2. Fighting Words and Offensive Speech

         It is clear that cyberbullies offend, hurt, and depress their victims through online communications. Yet, a speaker cannot be punished for offending others when the speaker is merely trying to persuade others as to his viewpoint. (50) However, in Cantwell v. Connecticut, the United States Supreme Court refused to protect persuasive speech, regardless of the speaker's intent, when the speech "provoke[d] violence and disturb[ed] ... good order." (51) Further, while the use of profanity or indecent and abusive language is not determinative in finding "fighting words," this type of language may add to the speech being labeled as such. (52) Fighting words are not protected by the First Amendment because "epithets or personal abuse is not in any proper sense...