I wanted to take a moment to clarify my position on the recent discussion regarding the need for a federal cyberbullying law.  I think my perspective has been misinterpreted in the media and by many who see me as opposed to any cyberbullying legislation.  I am not opposed to cyberbullying legislation.  I am simply concerned about the current language of the “Megan Meier Cyberbullying Prevention Act.”  First, it is never good practice to create policy based on isolated incidents.  While I certainly can sympathize with Tina Meier and her family, I don’t think her daughter’s tragic example should be used as a framework for determining law.  Any law should be informed by research and therefore seek to prevent and provide guidance for responding to those behaviors which are most likely to result in substantial harm to victims.

As many have pointed out, much of the language in the current proposal is ambiguous and as a result the bill could be misapplied.  I am worried that if the bill fails or is once again allowed to expire before formal consideration, that it sends the message that cyberbullying isn’t a serious problem.  Similarly, if the bill passes and then is subsequently overturned by the courts, it sends the same message.  So it is not “a law” that concerns me as much as the current proposal.

Some have suggested that a federal law would deter people from engaging in cyberbullying.  It is unlikely that any law would act as a deterrent—especially for adolescents.  Volumes of research find little support for the deterrence doctrine as applied in contemporary criminal justice policy.  In order to deter, a punishment has to be certain, swift, and sufficiently severe.  While we are good in the United States at ratcheting up the severity of punishments, we fail to ensure certainty and celerity of punishment.  And many would argue that those are the most important components.

If not a deterrent, then what is the purpose of an anti-cyberbullying law?  The purpose, in my view, should be to bring awareness to the problem and to empower local officials to take the necessary steps to respond.  The vast majority of adolescent cyberbullying incidents can and should be dealt with informally by parents with the help and support of educators, other community leaders, and local law enforcement.  Any cyberbullying incident that occurs, regardless of location, that results in a substantial disruption of the learning environment at school, or that makes it difficult for a student to effectively learn, should be subject to reasonable school sanction (and of course parental punishment).  Criminal prosecution should be reserved for the most serious forms of cyberbullying that result in significant harm to the target.  The reality is that we already have several laws that can be applied in these circumstances (criminal harassment, felonious assault, stalking, etc.).  In addition, victims of cyberbullying are always allowed to pursue civil litigation against a bully (civil harassment, defamation of character, libel, etc.).

Many people over the last couple of weeks have asked me what a good cyberbullying law might look like.  Though I am not a legislator (or lawyer), I have thought a bit about this.  In my view, a comprehensive anti-cyberbullying law would be clear, inclusive, and have the support of schools, law enforcement, and parents.  Specifically, a proposal would include the following elements:

• Clear and specific definition of cyberbullying that would hold up to legal scrutiny.
• Different consequences for juveniles and adults—I am hesitant to criminalize the relatively age-appropriate deviant behaviors of adolescents.  Kids make mistakes and experiment with a variety of destructive and hurtful behaviors.  While they need to be punished, we shouldn’t make adolescents felons for their indiscretions.
• Clear directives to local school districts about when and how they can respond to cyberbullying—especially those incidents that are initiated away from the school.
• Appropriately-funded mandates or incentives for Internet safety and responsibility education in schools and communities.

I applaud Congresswoman Sanchez for bringing much-needed dialogue to this important issue.  It is clear that she fully understands the harmful nature of cyberbullying and I certainly appreciate her resolve and persistence in attempting to move toward stopping this pernicious form of interpersonal harm.  While her proposal represents a step in the right direction, it clearly has some significant problems.  I am posting my thoughts here so that we can continue this discussion.  Let’s help Congress and state legislatures better understand this issue by cooperatively developing a more appropriate proposal.  What are your thoughts?  What elements are missing from my proposal?  What are the key issues here?  What would a good cyberbullying law look like to you?

I was a guest on the New Hampshire Public Radio show “Word of Mouth” with Virginia Prescott this morning where I talked about the proposed Megan Meier Cyberbullying Prevention Act.  You can listen to the brief interview here.  They were gracious enough to send me some potential questions a couple of hours before the interview so I knew what to expect.  Here is a short summary of my responses (even though some of these questions were not ultimately asked):

LORI DREW, THE ADULT DEFENDANT IN THIS CASE, WAS FOUND GUILTY OF VIOLATING MYSPACE’S TERMS-OF-SERVICE… AND ALSO THE “FEDERAL COMPUTER FRAUD AND ABUSE ACT” – ESSENTIALLY AN ANTI-HACKING LAW.  SINCE THERE ARE NO FEDERAL LAWS AGAINST CYBERBULLYING, HOW DO STATES CURRENTLY APPROACH THE ISSUE?

Most states have simply directed school districts to deal with the problem.  They have passed legislation recommending or requiring local school districts to update their harassment and bullying policies to include electronic variants. Unfortunately they have stopped short of providing concrete information regarding when and how schools can respond.  For example, it’s pretty clear that students who use school owned equipment or technology (such as email addresses), or who are on campus when they cyberbully are subject to school discipline.  But what about students who engage in cyberbullying using their own computers on their own time in their bedroom at home?  Does the school have a responsibility or right to discipline the bully in this case?  This is unclear, though there is some existing case law to suggest that if the cyberbullying results in a “substantial disruption” at school that it is then subject to school discipline.  But what exactly is a substantial disruption?  If you are cyberbullying me, Virginia, away from school but we are in the same class at school, clearly my ability to learn is being substantially disrupted.  Nevertheless, I’m not sure this would meet the standard.  These issues need to be clarified.

SINCE MANY OF THESE LAWS ARE LIMITED TO ONLINE HARASSMENT THAT TAKES PLACE ON SCHOOL GROUNDS, WHAT HAPPENS WHEN KIDS GO HOME AND USE THEIR LAPTOPS OR CELL PHONES?

That is one of the biggest problems.  Most cyberbullying incidents are initiated or escalated away from school.  Clearly parents have a major role to play in preventing and responding to these behaviors.  Nevertheless, I still feel that schools can be involved as well—at least informally (though parent/principal conferences, education, etc).  And in certain circumstances, like when the behaviors do result in a substantial disruption at school, more formal discipline may be allowed.

ARE THERE ANY STATES WHERE A SCHOOL DISTRICT CAN TAKE ACTION AGAINST AN ADULT?

I am not aware of any state where schools can take action against adults for cyberbullying.  I assume you are referring to a situation where a parent would be somehow disciplined for the actions of their child—again, I am not aware of any such law.  And I don’t know of any situation where a school could take action against an adult in a case like the Lori Drew cyberbullying incident.

GETTING BACK TO THE PIECE OF LEGISLATION THAT’S ON THE TABLE, CONGRESSWOMAN LINDA SANCHEZ HAS PROPOSED A BILL WOULD MAKE IT A FELONY TO “INTIMIDATE OR HARASS SOMEONE USING ELECTRONIC MEANS… AS PART OF A PATTERN OF REPEATED AND HOSTILE BEHAVIOR.”  WHAT EXACTLY DOES THIS MEAN?

This is the big question—what exactly does that mean?  One of the problems with the proposal is that it can be interpreted in many different ways by many different people.  This is something we have been wrestling with for years: how to come up with a sufficient, concise, and clear definition of cyberbullying.  Due to the nature of the behaviors, any comprehensive definition of cyberbullying risks being too broad.  And lawyers and judges don’t like broad laws.  In spirit, I like the proposed bill.  I’m glad that there is a national discussion about cyberbullying.  Unfortunately, I just don’t think it will hold up in court.

THIS BILL WAS ORIGINALLY INTRODUCED IN MAY 2008, BUT IT DIED IN COMMITTEE.  NOW THE BILL HAS SEVENTEEN CO-SPONSORS.  WHY DO YOU THINK MORE MEMBERS OF CONGRESS ARE SUPPORTING IT THIS TIME AROUND?

I think there have been several high profile cases of cyberbullying over the last year and more and more people are as a result beginning to recognize its harmful nature.  Again, this is a good thing.  Even if this proposal isn’t successful, I am glad to see that we are moving in the direction of identifying cyberbullying as something society would like to prevent and condemn.

ON HIS BLOG, UCLA PROFESSOR OF LAW EUGENE VOLOKH ARGUES THAT THIS BILL IS TOO BROAD TO BE CONSTITUTIONAL.  HE SAYS IT COULD BE USED AGAINST ANYONE WHO SENDS ANGRY EMAILS TO A POLITICIAN OR STARTS A BLOG THAT REPEATEDLY CRITICIZES A COMPANY.  COULD THIS BILL LIMIT FREE SPEECH?

That is the biggest concern.  We always have to balance free speech with responsible speech.  We also have to remember that while students at school don’t “leave their free speech rights at the school house gate,” the rules are different.  Schools have a role to play in teaching students appropriate means of discourse and communication.  They can limit speech that is threatening, offensive, or counter to their educational mission at school.  And once again, if that speech occurs away from school but results in a substantial disruption at school, the school has the authority to respond.

CONGRESSWOMAN SANCHEZ DEFENDED HER BILL ON THE HUFFINGTON POST LAST WEEK.  SHE WROTE, “WHEN SO-CALLED FREE SPEECH LEADS TO BULLIES HAVING FREE-REIGN TO THREATEN KIDS, IT’S TIME TO ACT.”  JUSTIN, YOUR BLOG FOCUSES ON THE CAUSES AND CONSEQUENCES OF ONLINE HARASSMENT.  DO YOU AGREE THAT IT’S TIME FOR ACTION?

Yes, I agree that it is time for action.  I agree 100% with what congresswoman is saying, I’m just unsure that this particular bill will be the best means toward that end.  I talk to victims of cyberbullying all of the time.  I have spoken to Tina Meier, I know what cyberbullying has done to her life.  We need to take action.  In my view, however, most of the action needs to be at the local level—parents, schools, and other local community members need to get involved in preventing and responding to cyberbullying.  Only in rare cases will cyberbullying rise to the level where criminal intervention is necessary.  And in most cases there already exists sufficient laws to prosecute based on these circumstances (harassment or stalking laws, for example).  I would hate to see a 15-year-old get sent to jail for 2 years for engaging in typical cyberbullying.

WHAT WOULD A GOOD PIECE CYBERBULLYING LEGISLATION LOOK LIKE, IN YOUR OPINION?

I good piece of legislation would clearly define cyberbullying in a way that is clear, concise, and comprehensive.  Again, this is a big challenge, but this definition should be based on the growing body of evidence emerging from cyberbullying research.  I would like the legislation to clearly spell out the circumstances under which schools can get involved in cyberbullying cases—especially when they occur away from school.  Good legislation would require schools to educate students about the responsible use of technology—and provide funding for that purpose.  Whose responsibility is it to teach kids to use computers and cell phones responsibly?  Again, parents have a role, but often-times their kids know more about the technology than they do.  Since schools are often providing access to computers and/or requiring students to utilize technology to complete school work, they have a responsibility as well to teach youth to use it responsibly.

BOTH CHILDREN AND ADULTS COULD BE PROSECUTED UNDER THIS BILL.  IF IT DOES BECOME LAW, WOULD THE THREAT OF BEING SENT TO JAIL DETER KIDS FROM HARASSING EACH OTHER ONLINE?

It is unlikely that children (or adults for that matter) would be deterred from engaging in cyberbullying because of this law.  In order to act as a deterrent, a punishment needs to be certain, swift, and sufficiently severe.  While our criminal justice system has been very good at ratcheting up the severity of punishments, there is very little certainty or swiftness of punishment in our system.  It is more likely that students will be deterred by the potential disapproval of parents or peers than any formal criminal justice sanction.  As such, we need to create a culture where all forms of harassment are viewed by society as taboo.

There has been a lot of discussion lately concerning proposed or recently passed state and federal legislation designed to address cyberbullying.  One particular bill, proposed by California Congresswoman Linda T. Sanchez and called the “Megan Meier Cyberbullying Prevention Act,” was re-introduced in the House of Representatives last month (the proposal was initially introduced in May of 2008).  The Act amends Chapter 41 of title 18 of the U.S. Code to include the following: “Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.”

While on paper this may sound good, we have some concerns about it.  Clearly we feel it is important for legislators to recognize the seriousness of cyberbullying and to do their part to help provide guidance and direction to local and state authorities confronted with cyberbullying.  As I have stated before, I am not convinced that a state or federal law which criminalizes cyberbullying is necessarily the best approach.  The vast majority of all cyberbullying can be effectively handled informally—by parents, educators, and other community members.  In the rare event that a cyberbullying incident rises to a level warranting criminal intervention, we already have existing laws which can be utilized (stalking, criminal harassment, felonious assault, etc.).

Many have commented on the potential for misinterpretation and misapplication with this law, and most lawyers we have spoken to (even those with expertise in this area) have reservations about this particular legislation.  Instead of trying to push something through (that already failed to gain momentum a year earlier), legislators should stop and work to develop a law that is reasonable, practical, constitutional, and informed by research.  Perhaps they could start by convening a group of experts (which should include educators, parents, and youth themselves), so that they can identify the real issues going on here.  The question really is: what kind of behaviors are we specifically trying to prevent?  And what kind of law is necessary to accomplish this?  As always, we look forward to your thoughts…