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?