Lori Drew's conviction in the MySpace suicide case.

The law, lawyers, and the court.
Dec. 3 2008 6:33 PM

Lori Drew Is a Meanie

The problem with prosecuting cyber-bullying.

(Continued from Page 1)

Kerr joined Drew's defense team, and his post last Friday on the Volokh Conspiracy blog gets at how just how ludicrous it is to imagine every breach of a Web site's terms of service as a federal crime. (Kerr: By visiting the Volokh Conspiracy, you agree that your middle name is not Ralph and that you're "super nice." You lied? Gotcha.) Of course, prosecutors aren't really going to investigate all the criminals Kerr just created with the terms of service in his post. But this is not a road we want to take even one baby step down. As Andrew Grossman argues for the Heritage Foundation, laws that make it seem as if "everyone is a criminal" are generally a bad idea. Most of the time, they're unenforceable, and then every once in a while, they're used to scapegoat someone like Lori Drew.

What about a law written expressly to address cyber-bullying? Such a statute could presumably direct prosecutors to go after only the worst of the Internet meanies. Or, then again, maybe not. A proposed bill before Congress is far broader. It targets anyone who uses "electronic means" to transmit "in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person." The penalty is a fine or imprisonment for up to two years.


Missouri, where Meier lived, has already passed a cyber-bullying law. The Missouri statute extends the state's bar on phone harassment to computers. The problem with the analogy is that the computer context is more dangerous to free speech: On the phone, you talk to one other person. On MySpace or any other Web site, you broadcast to as many people as read you. Other states have passed laws giving schools more authority to address cyber-bullying. That sounds better, but it could get schools too involved in disciplining students for the IMs and posts they write from home.

All of this takes us back to earlier battles over prosecuting hate speech. As Eugene Volokh points out on his ever-vigilant blog, the cyber-bullying bill before Congress is a classic example of a law that's unconstitutional because it's overly broad. The Supreme Court has held that the First Amendment protects "outrageous" speech—from civil as well as criminal liability—even if it "recklessly, knowingly, or purposefully causes 'severe emotional distress,' when it's about a public figure." Volokh adds, "Many, though not all, lower courts have held the same whenever the statement is on a matter of public concern, even about a private figure."

That doesn't mean that a cyber-bullying statute as applied to a Lori Drew-like horror show would be unconstitutional; "Josh's" trashing of Megan was hardly a matter of public concern. But even if a better drafter could come up with a narrower law, since when do we want the government to go after bullies when the only weapon they wield is words? Other countries have experimented with prosecuting hate speech; they don't think their civil traditions are strong enough to withstand, for example, ethnically based calls to violence. But that's not a direction American law has ever taken. And wild and woolly though it may be, the Internet doesn't really call for rethinking our affection for the First Amendment. Cyber-bullying is scary. For some kids, MySpace isn't a safe place. But criminal convictions aren't the best way to clean up the neighborhood.


Medical Examiner

Here’s Where We Stand With Ebola

Even experienced international disaster responders are shocked at how bad it’s gotten.

It’s Not Easy for Me, but I Stand With Emma Watson on Women’s Rights

Divestment Is Fine but Mostly Symbolic. There’s a Better Way for Universities to Fight Climate Change.

Subprime Loans Are Back

And believe it or not, that’s a good thing.

It Is Very Stupid to Compare Hope Solo to Ray Rice

Building a Better Workplace

In Defense of HR

Startups and small businesses shouldn’t skip over a human resources department.

Why Are Lighter-Skinned Latinos and Asians More Likely to Vote Republican?

How Ted Cruz and Scott Brown Misunderstand What It Means to Be an American Citizen

  News & Politics
The World
Sept. 23 2014 10:55 AM This Isn’t the Syria Intervention Anyone Wanted
Business Insider
Sept. 23 2014 10:03 AM Watch Steve Jobs Tell Michael Dell, "We're Coming After You"
The Vault
Sept. 23 2014 10:24 AM How Bad Are Your Drinking Habits? An 18th-Century Temperance Thermometer Has the Verdict.
  Double X
The XX Factor
Sept. 22 2014 7:43 PM Emma Watson Threatened With Nude Photo Leak for Speaking Out About Women's Equality
  Slate Plus
Slate Plus
Sept. 22 2014 1:52 PM Tell Us What You Think About Slate Plus Help us improve our new membership program.
Brow Beat
Sept. 23 2014 9:42 AM Listen to the Surprising New Single From Kendrick Lamar
Future Tense
Sept. 23 2014 10:51 AM Is Apple Picking a Fight With the U.S. Government? Not exactly.
  Health & Science
Bad Astronomy
Sept. 23 2014 11:00 AM Google CEO: Climate Change Deniers Are “Just Literally Lying”
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.