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.
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