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.