Are Cyberbullying Laws Unconstitutional?

Expanding the LGBTQ Conversation
July 9 2014 9:59 AM

The Legal Difficulties of Fighting Cyberbullying

104593589-students-pay-their-respects-on-october-01-2010-to-first
Students pay their respects to Tyler Clementi, a victim of cyberbullying.

Photo by EMMANUEL DUNAND/AFP/Getty Images

The worst restrictions on freedom of speech often arise from the best of intentions. Case in point: An ambitious cyberbullying law in Albany County, New York that was recently struck down by the state’s highest court as a First Amendment violation. Certain provisions of the statute outlawing “annoy[ing] … communication,” the court found, were so broad that it could “criminalize a broad spectrum of speech outside the popular understanding of cyberbullying.” As a result, the whole law had to go.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers science, the law, and LGBTQ issues.

Because curbing online bullying is such an obviously worthy goal, it’s easy to find fault with the New York court, as did Tyler Clementi’s parents. (Clementi killed himself after facing anti-gay bullying online, and cyberbullying disproportionately affects LGBTQ people.) But the real fault here lies in the Albany County Legislature, which inexplicably expanded a narrow restriction into a new censorship regime that could send teenagers to jail for making jokes on Facebook. Legislatures—including the United States Congress—pass overbroad statutes all the time, and the usual solution is simply to rewrite the statute with firmer limitations. Cyberbullying, however, is such a brave new world that it’s difficult to determine exactly how to outlaw it—or whether it can be constitutionally outlawed at all.

Advertisement

That’s not to say that plenty of states haven’t tried. About 20 states currently have a law on the books targeting cyberbullying, and several more may soon follow suit. The strongest of these statutes largely avoid the censorship question by granting schools the authority to discipline students who make online threats toward other students. Somewhat broader but just as sensible are the cyberbullying restrictions that merely extend existing stalking and harassment laws to the Internet. Threatening someone with murder qualifies as harassment whether you do it in an email or on the sidewalk. Forbidding students (and everyone else) from directing death threats and cruel, obscene abuse toward others is both good policy and good law.

But several of these statutes include provisions that set off serious First Amendment alarm bells. Here, Maryland leads the pack, with a startling law that prohibits using a computer “in a course of conduct that inflicts serious emotional distress.”* The statute does carve out exceptions for “expressing political views” and “conveying information,” but this rather weak saving clause wasn’t enough to justify the statute for the ACLU, which labeled it an unconstitutional effort to “criminalize speech.”

And even if the Maryland legislature had no intention to criminalize vast swathes of speech with its cyberbullying statute, that’s pretty clearly what it did. Under the statute, a student could potentially be fined and imprisoned for coarsely ridiculing Christianity on Facebook, for tweeting about gay people’s damned souls, even for reposting images of the Westboro Baptist Church’s protected speech. It all depends on how a prosecutor chooses to interpret the provision—and the Maryland law is so broadly written that even a well-intentioned prosecutor could use it to blow a hole through students’ First Amendment rights.

Why would legislatures sympathetic to students pass reckless statutes that trample over their rights? Probably for the same reason that Europe is pushing misguided “right to be forgotten” laws. The openness of the Internet is forcing judges and legislatures to reevaluate the accepted balance between speech and privacy, expression and seclusion. In Europe, the scale has tipped unmistakably toward privacy; in the United States, free speech principles have largely forestalled any such debate—even when children enter the picture. Although states might have a freer hand in regulating schoolchildren’s speech, the Supreme Court recently proclaimed that the government has no “free-floating power to restrict the ideas to which children may be exposed.”

Yet cyberbullying laws remain a vital tool in curbing the kind of insidious intimidation so often directed toward students—especially LGBTQ ones. That’s what makes efforts like New York’s and Maryland’s so disappointing: In their overzealousness to protect students, legislators wound up setting the cause back. Moving forward, lawmakers would do well to look to states like Louisiana, whose cyberbullying statute builds on traditional harassment laws and resists the urge to outlaw annoying and offensive speech as well. Kids have a right to say stupid stuff online. It’s perfectly possible to respect that right without giving them carte blanche to drive their classmates to despair.

*Correction, July 15, 2014: This post originally linked to Maryland bill HB 17 when discussing Maryland's cyberbullying law. The link has been updated.

Mark Joseph Stern is a writer for Slate. He covers science, the law, and LGBTQ issues.

TODAY IN SLATE

Foreigners

More Than Scottish Pride

Scotland’s referendum isn’t about nationalism. It’s about a system that failed, and a new generation looking to take a chance on itself. 

What Charles Barkley Gets Wrong About Corporal Punishment and Black Culture

Why Greenland’s “Dark Snow” Should Worry You

Three Talented Actresses in Three Terrible New Shows

Why Do Some People See the Virgin Mary in Grilled Cheese?

The science that explains the human need to find meaning in coincidences.

Jurisprudence

Happy Constitution Day!

Too bad it’s almost certainly unconstitutional.

Is It Worth Paying Full Price for the iPhone 6 to Keep Your Unlimited Data Plan? We Crunch the Numbers.

What to Do if You Literally Get a Bug in Your Ear

  News & Politics
Weigel
Sept. 16 2014 7:03 PM Kansas Secretary of State Loses Battle to Protect Senator From Tough Race
  Business
Moneybox
Sept. 16 2014 4:16 PM The iPhone 6 Marks a Fresh Chance for Wireless Carriers to Kill Your Unlimited Data
  Life
The Eye
Sept. 16 2014 12:20 PM These Outdoor Cat Shelters Have More Style Than the Average Home
  Double X
The XX Factor
Sept. 15 2014 3:31 PM My Year As an Abortion Doula
  Slate Plus
Slate Plus Video
Sept. 16 2014 2:06 PM A Farewell From Emily Bazelon The former senior editor talks about her very first Slate pitch and says goodbye to the magazine.
  Arts
Brow Beat
Sept. 16 2014 8:43 PM This 17-Minute Tribute to David Fincher Is the Perfect Preparation for Gone Girl
  Technology
Future Tense
Sept. 16 2014 6:40 PM This iPhone 6 Feature Will Change Weather Forecasting
  Health & Science
Medical Examiner
Sept. 16 2014 11:46 PM The Scariest Campfire Story More horrifying than bears, snakes, or hook-handed killers.
  Sports
Sports Nut
Sept. 15 2014 9:05 PM Giving Up on Goodell How the NFL lost the trust of its most loyal reporters.