Concerns about cyberbullying have reached an all-time high recently, gaining traction from the decision in the highly publicized Tyler Clementi case.  While non-profit organizations like list prevention techniques like educating children and raising awareness, some state governments may opt to take a more aggressive step that could end up silencing more than just middle school bullies.

Last week, the Arizona legislature amended its state telephone harassment law to encompass forms of digital communication, too.  Despite the legislature’s well-meaning intentions, the legislation has gained much attention for its overly broad language.  The bill (PDF) made it “unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use any electronic or digital device and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.  It is also unlawful to otherwise disturb by repeated anonymous electronic or digital communications the peace, quiet or right of privacy of any person at the place where the communications were received.”

Without any further limitation, this text appears to infringe upon the First Amendment, raising concerns that it amounts to government censorship of blog commentary, Facebook walls, or other public communication displayed via digital media outlets.  Many members of the public are outraged, including one blogger who has gone so far as to compare the legislation to China or Syria’s governance.  The Media Coalition, an organization that defends the First Amendment, has responded by sending a letter (PDF) to the governor of Arizona that details the legislation’s faults, as well as by mailing personal memorandums to each of the state senators.

Arizona Representative Ted Vogt has explained that the broad language was a mistake.  The purpose of the legislation was to criminalize targeted, harassing communication.  He promised that the bill would be amended to say such harassing communications must be directed at a particular person, likely in response to the Media Coalition’s critique that the law did not limit the offending communication to a “one to one conversation between two specific people.”  Once these changes are made, Representative Vogt has no doubt that the proposed legislation will become law.

Some law professors, however, continue to express doubt.  Geoffrey Stone, a Constitutional law professor at the University of Chicago, has been reported as saying, “Even so narrowed, the statute is unconstitutional.  You simply cannot prohibit emails that are said to be intended to offend.  That violates the First Amendment flat out.”

Certainly something needs to be done to stop cyberbullying, but is this the right step?  Does Arizona’s proposed legislation toe the line of censorship a little bit too closely, or is this exactly the type of definitive action that should be taken across the country?  Does the verdict in the Tyler Clementi case prove that new legislation isn’t necessary, or does it highlight a gap in our judicial system that Arizona’s law is an attempt to fill?

- Erin Reimer

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11 Responses to Legislative Efforts to Prevent Cyberbullying May Violate the First Amendment

  1. Dave says:

    This bill seems to once again illustrate how presumably well-meaning legislatures fail to understand the nature of online communication and public social media sites (see Tennessee). They tend to miscalculate how different groups of people across generations and subgroups imbue communication with different meanings. In some ways, in addition to the potential constitutional issues, laws such as these are coded with specific cultural values that do not reflect that democratic nature of the Internet.

    It does seem at least that this bill requires intent, whereas other laws provide for a cause of action simply for posting communications that were perceived to be abusive even if not directed at any individual. When constructing legislation intended to protect people from the very real issue of online bullying, it is important for legislatures to consider how these laws could leak over into First Amendment and other innocently posted communications.

  2. KM says:

    While I applaud the good intentions of the lawmakers who are trying to address the serious issue of cyber bullying, I agree with some of the earlier posts that criminalizing the posts of juvenile social networker users is not the way to go. I may be naïve, but I think that monitoring and preventing cyber bullying has got to start with parents. If a child was bullying or being bullied on the playground, does it make sense for the criminal law to immediately get involved? No—it’s a parent’s job to address those issues.

  3. Katharine Skinner says:

    I agree with the prior comments that something needs to be done to counter cyberbullying, but this statute infringes too far upon 1st Amendment rights. Another possible route to counter such attacks may be possible with a claim for libel, as seen in a recent Georgia case. As discussed in conjunction with that case (link below) it appears that schools are wary of stepping in to punish conduct that occurs off-campus, and though Georgia does have a cyberbullying law, it does not cover the exact facts of the case. Instead of then creating an overly broad law, like Arizona, which would encompass much more activity that courts probably do not want to deal with, a libel claim may be an attractive option if it is possible.

  4. Susan Reilly says:

    While cyberbullying is unfortunate, the AZ statute is entirely too broad, and almost certainly violates the 1st Amendment. It is now illegal to “annoy” someone? What will be next, criminalizing hurting another’s feelings? Cyberbullying is a problem, but not one that should be solved legislatively. The real problem is the parents and kids involved in these unfortunate incidents – problems that should be remedied with counselling, parental discipline, and educational programs at school.

  5. Sophia Behnia says:

    I agree with Ed that we should have some sort of regulation because the instances of cyberbullying seem to be getting out of hand these days. Narrowing the statute down so that it focuses just on schools would make sense because the situation at school is different. Alex, I’m not sure I agree that noncriminal school action is enough. Many students would not be deterred by detention or suspension. I remember how so many kids in my high school would laugh when a teacher gave them detention for behaving inappropriately in the classroom. We need something more than school action, but I agree that the current Arizona bill is too broad.

  6. Alexandra Pichette says:

    I think a better and more realistic option is non criminal action in the schools. The question in school cases is whether the school can discipline the challenged speech without violating a student’s First Amendment rights. While we know from Tinker that a student does not “leave their first amendment rights at the schoolhouse door,” unlike adults, their right to speech is balanced by a school’s responsibility to provide a safe learning environment for all of its students. This type of issue seems better suited for a nuanced, fact intensive balancing test than the kind of generalized, sweeping legislation Arizona has rolled out.

  7. Meredith says:

    While I do agree that measures ought to be taken regarding the increasing problem of cyberbullying, it might be to difficult to have this issue addressed at the legislative level. The overly broad language used by the Arizona legislature to detail the offense of cyberbullying runs counter to the general principle in criminal law of avoiding ambiguity in detailing a criminal offense. This definition gives no notice to a potential offender of what type of behavior can actually avoid this definition. Under the definition, it seems far too easy to bring a charge of cyberbullying under many circumstances that would not warrant criminal liability.

  8. Ed Chadwick says:

    I’m not quite as skeptical that this doesn’t need to be legislated in some way, considering some of the cases coming out of school and bullying. This language just happens to be incredibly over broad, as Ilana pointed out. The legislature might be better served by limiting the statue to schools which are accepted as having somewhat lessened free speech protection than the public sphere will more clearly targeting exactly what the statue is trying to prevent. The mind boggles how on earth enforcing a right to privacy even works for someone voluntarily participating in the Internet.

  9. Ilana says:

    One other concern is that the text of the bill seems to provide no guidance as to the scope of its prohibition. What is “disturb[ing]” the “quiet” of another person? An additional concern is that writing may distort the author’s intent. For example, a person may write an email intending to make nice with another person, but the other person may misinterpret– even take offense at– something the writer said.

  10. Cal Albritton says:

    Do we even want the criminal law to reach this kind of conduct? Do we really want to criminalize a 16 year old girl posting nasty stuff on another 16 year old’s Facebook wall? This is ridiculous. Cyberbullying may be a “problem,” but I don’t think kids are gonna be deterred by the criminal consequences, and maybe these kids might learn from, I don’t know, people sitting down and having a decent talk with these people.

    • Colton Cline says:

      Cal, I’m going to have to side with you on this one. First of all, I’m not sure it should be the role of the school to monitor students’ activities on social networking sites outside of the classroom. Sure, if bullying is getting in the way of the “legitimate interests” of the school in accomplishing the objective of educating students, they might be justified in stepping in.

      Now, as far as a statutory solution, I think we already have all we need in some form of IIED. But, as we all know, that hurdle will be a high one – and for good reason. It’s not the legislature’s responsibility to prevent bullying.