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COMMENT
LETHAL WORDS: THE HARMFUL IMPACT OF
CYBERBULLYING AND THE NEED FOR
FEDERAL CRIMINALIZATION
TABLE OF CONTENTS
I. INTRODUCTION ..................................................................... 1476 II. WHAT IS CYBERBULLYING ................................................... 1478 A. Defining Cyberbullying ............................................... 1478 B. Harmful Effects of Cyberbullying ............................... 1479 III. CYBERBULLYING AND THE FIRST AMENDMENT ................... 1481 A. Protected Speech .......................................................... 1481 B. Special Interest in Protecting Children ...................... 1484 C. Restricting Speech in Schools ..................................... 1485 D. Overbreadth Doctrine .................................................. 1488 IV. ENACTED AND PROPOSED LEGISLATION .............................. 1490 A. State and Local Legislation ........................................ 1490 B. Federal Legislation ..................................................... 1493 V. ALTERNATIVES TO FEDERAL LEGISLATION CRIMINALIZING
CYBERBULLYING DO NOT WORK ........................................ 1494 A. Combating Cyberbullying Through the
Public School System .................................................. 1494 B. Combating Cyberbullying Through Tort Action ........ 1496 C. Combating Cyberbullying Through the States .......... 1497 
This Comment received the Winston & Strawn LLP Award for Best Paper in the
Area of Criminal Law. The Author would like to give special thanks to Hollie Sumrall,
Thorne Leslie, Robyn Leslie, Forrest Perdue, Carolyn Perdue, Robin Perdue, and the rest
of her family that has supported her. The Author would also like to thank the many editors
of Houston Law Review for their efforts in preparing this Comment for publication.
1475
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D. Combating Cyberbullying Through Already Existing
Federal Statutes .......................................................... 1498 VI. CONCLUSION ........................................................................ 1499 I.
INTRODUCTION
“Right now, I really don’t see the reason for trying, or for
talking, or for breathing. I’m just done.”1 These are the words
spoken by fictional character Taylor Hillridge, played by actress
Emily Osment, who posted an online video before attempting
suicide in the 2011 movie Cyberbully.2 Taylor’s story is more than
a Hollywood melodrama; it was the beginning of a campaign
against cyberbullying created by ABC Family television in
partnership with Seventeen Magazine.3 The film illustrates real
cyberbullying issues by telling the story of seventeen-year-old
Taylor, a target of cyberbullying.4
Taylor’s story, although fictional, is similar to many other
real-world cyberbullying-related suicides.5 Cyberbullying-related
suicides are often highly publicized and frequently followed by a
call for change in school policies or legislation to address the
problem of cyberbullying.6 Although these suicides gain the
attention of the media, cyberbullying reaches much further than
1.
CYBERBULLY (ABC Family Worldwide Inc. 2011).
2.
Id.
3.
Don’t Miss ABC’s Family Movie “Cyberbully” on July 17th 2011, ASKTHEJUDGE
(June 30, 2011), http://www.askthejudge.info/dont-miss-abcs-family-movie-cyberbully-on
-july-17th/10028/. Seventeen Magazine’s campaign “Delete Digital Drama” encourages
teens to refrain from responding to negative messages on the Internet. What to Do If
You’re Being Cyberbullied, SEVENTEEN (June 30, 2011), http://www.seventeen.com
/health/tips/dealing-with-cyberbullying. Seventeen Magazine has raised money for
STOMP Out Bullying by partnering with J.C. Penney’s to sell “Delete Digital Drama”
t-shirts. Bullying Prevention Partners, STOMP OUT BULLYING, http://www.stompout
bullying.org/index.php/about/our-supporters/bullying-prevention-partners/ (last visited
Apr. 22, 2016).
4.
CYBERBULLY, supra note 1.
5.
See Megan’s Story, MEGAN MEIER FOUND., http://www.meganmeier
foundation.org/megans-story.html (last visited Apr. 22, 2016) (telling the story of a child’s
suicide after falling victim to adult cyberbullies using a fictional online profile); see also The
Top Six Unforgettable CyberBullying Cases Ever, NOBULLYING (Dec. 22, 2015),
http://nobullying.com/six-unforgettable-cyber-bullying-cases/
[hereinafter
Six
Unforgettable CyberBullying Cases] (telling the story of Amanda Todd, a child who
committed suicide after posting an online video).
6.
Six Unforgettable Cyberbullying Cases, supra note 5 (describing the aftermath of
several suicide cases including Ryan Halligan, Megan Meier, Jessica Logan, Hope Witsell,
Tyler Clementi, and Amanda Todd).
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these limited cases.7 About one-half of young people report being a
victim of cyberbullying and more than one-third have experienced
online threats.8
Contrary to a common misconception, cyberbullying is not a
lesser form of bullying.9 Cyberbullies target their victims through
electronic devices, allowing their effects to reach further than
traditional bullying.10 Additionally, cyberbullying leads to higher
rates of suicide, depression, and feelings of isolation among
children.11 This Comment argues that cyberbullying can and
should be federally criminalized to prevent these harms.
Part II of this Comment addresses what cyberbullying is by
surveying various definitions of cyberbullying and discussing its
harmful effects. Part III of this Comment argues that
cyberbullying is not protected under the First Amendment. In Part
III, this Comment first addresses whether cyberbullying fits under
any of the First Amendment exceptions. Cyberbullying may fit
under the fighting words exception because cyberbullying is aimed
at children.12 Even if no exception applies, this Comment argues
that the government might have the right to criminalize
cyberbullying because of its compelling interest to safeguard
children.13
Because most cyberbullying legislation uses the public school
system to regulate this speech, Part III will also explore four
foundational cases that laid out the general rule that a school can
regulate speech that materially and substantially interferes with
discipline at the school.14 Lower courts continue to use the analysis
from these four foundational cases when determining whether the
7.
See, e.g., A THIN LINE, 2009 AP-MTV DIGITAL ABUSE STUDY 1–2, 5,
http://www.athinline.org/MTV-AP_Digital_Abuse_Study_Executive_Summary.pdf
[hereinafter A THIN LINE].
8.
Id. at 1–2; Cyber Bullying Statistics, BULLYING STAT., http://www.bullying
statistics.org/content/cyber-bullying-statistics.html (last visited Apr. 22, 2016).
9.
What
Is
Cyberbullying,
NAT’L
CRIME
PREVENTION
COUNCIL,
http://www.ncpc.org/topics/cyberbullying/what-is-cyberbullying (last visited Apr. 22, 2016).
10.
Id. (describing how cyberbullying can reach a child’s home, leaving the child
without a safe haven).
11.
Ehab Zahriyeh, ‘Make This All Go Away’: Cyberbullying Multiplies Teen Pain,
ALJAZEERA AM. (Sept. 17, 2014, 6:00 AM), http://alj.am/XcwHwv.
12.
Clay Calvert, Fighting Words in the Era of Texts, IMs and E-Mails: Can a
Disparaged Doctrine Be Resuscitated to Punish Cyber-Bullies?, 21 DEPAUL J. ART TECH. &
INTELL. PROP. L. 1, 27–30 (2010) (arguing that courts may lower the standard for what
constitutes a fighting word when the speaker aims his speech towards children).
13.
See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 869 (1997) (explaining that
the government has a compelling interest in “protecting the physical and psychological
well-being of minors” (quoting Sable Commc’ns, Inc. v. FCC, 492 U.S. 115, 126 (1989))).
14.
See Morse v. Frederick, 551 U.S. 393, 408 (2007); Hazelwood Sch. Dist. v.
Kuhlmeier, 484 U.S. 260, 271–73 (1988); Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 685
(1986); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508–09 (1969).
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school has authority to restrict cyberbullying because the Supreme
Court has not yet specifically ruled on the constitutionality of
prohibiting cyberbullying.15 Additionally in Part III, this
Comment illustrates potential overbreadth issues that appear in
cyberbullying legislation.16
After discussing First Amendment issues, this Comment, in
Part IV, will explore both current and proposed legislation on the
local, state, and federal level. These statutes contain various
definitions of what constitutes cyberbullying and provide different
criminal sanctions for violating the statute.17 Special attention will
be provided in describing the proposed 2009 Megan Meier
Cyberbullying Prevention Act as a close model of what a federal
law criminalizing cyberbullying should look like.18
Finally, Part V of this Comment will address the
shortcomings of certain alternatives to creating federal legislation
criminalizing cyberbullying.
II. WHAT IS CYBERBULLYING
Preventing cyberbullying first requires exploring how
cyberbullying is defined and understanding what makes
cyberbullying harmful.
A. Defining Cyberbullying
There is no single definition of cyberbullying.19 The U.S.
Department of Health and Human Services defines cyberbullying
as “bullying that takes place using electronic technology,”20 and
defines bullying as “unwanted, aggressive behavior among school
aged children that involves a real or perceived power imbalance”
15.
Thomas A. Jacobs, Cyberbullying and the Law, ARIZ. ATT’Y, Mar. 2013, at 48, 50.
16.
See People v. Marquan M., 19 N.E.3d 480, 486–88 (N.Y. 2014) (holding a
cyberbullying statute overbroad because it does not limit its scope to speech aimed only at
children and also regulates “annoying and embarrassing speech,” which is protected by the
First Amendment).
17.
SAMEER HINDUJA & JUSTIN W. PATCHIN, CYBERBULLYING RES. CTR., STATE
CYBERBULLYING LAWS (2016),
http://cyberbullying.org/Bullying-and-Cyberbullying
-Laws.pdf.
18.
Megan Meier Cyberbullying Prevention Act, H.R. 1966, 111th Cong. (2009),
https://www.gpo.gov/fdsys/pkg/BILLS-111hr1966ih/pdf/BILLS-111hr1966ih.pdf.
19.
Calvert, supra note 12, at 16 (citing Marilyn Langevin, Helping Children Deal
with Teasing and Bullying: For Parents, Teachers and Other Adults, INT’L STUTTERING
ASSOC., http://www.isastutter.org/CDRomProject/teasing/teasing_main.html (last visited
Apr. 22, 2016)) (arguing that understanding the definition of bullying is not as important
as understanding the underlying distress that bullying causes).
20.
What Is Cyberbullying, STOP BULLYING, http://www.stopbullying.gov/cyber
bullying/what-is-it/index.html (last visited Apr. 22, 2016).
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that “is repeated, or has the potential to be repeated, over time.”21
Alternative definitions of cyberbullying do not require a power
imbalance but still require a minor to be on both sides of the
communication.22 For simplicity, this Comment will use the U.S.
Human Health and Service’s simple definition of cyberbullying—
“bullying that takes place using electronic technology”—and will
assume that the communication is at least targeted at a minor.23
B. Harmful Effects of Cyberbullying
Cyberbullying is more than just words on a screen. Its effects
are real and dangerous, causing psychological, emotional, and
physical stress. Cyberbullying can lead to depression, isolation,
and suicide, especially in adolescence, a time when a child’s peer
group becomes more important.24
Cyberbullying is often more extreme than traditional,
face-to-face bullying.25 When cyberbullies send messages
electronically, the message can be far-reaching.26 This opens the
door for the bullying to infiltrate the child’s home, a place where a
child usually feels safe, and makes the bullying seem inescapable.27
Another effect of bullying occurring electronically is that the
message is often harsher as individuals have the habit of saying
things online that they would not be comfortable saying offline.28
This effect is even greater when the aggressor is anonymous.29
New apps have provided more platforms for anonymity and
cyberbullying.30 Certain apps, like Yik Yak, allow users to post
21.
What Is Bullying, STOP BULLYING, http://www.stopbullying.gov/what-is
-bullying/index.html (last visited Apr. 22, 2016).
CYBERBULLYING,
22.
E.g.,
What
Is
Cyberbullying,
Exactly?,
STOP
http://www.stopcyberbullying.org/what_is_cyberbullying_exactly.html (last visited Apr. 22,
2016).
23.
What Is Cyberbullying, supra note 20. Limiting the definition of cyberbullying to
speech that is aimed only at children has First Amendment implications. See discussion
infra Part III (arguing that the First Amendment does not protect cyberbullying because
the government has a compelling interest to protect children and the standard for what
constitutes a fighting word is lowered when the speech is aimed at children).
24.
Zahriyeh, supra note 11 (discussing how a teen’s self-worth is often influenced by
feeling accepted or not accepted by their peer group); see also What Is Cyberbullying, supra
note 9 (explaining that the Internet is a significant part of a child’s social life).
25.
What Is Cyberbullying, supra note 9.
26.
Id.
27.
Id.
28.
Id.
29.
Id. (“Cyberbullies often hide behind screen names and e-mail addresses that don’t
identify who they are. Not knowing who is responsible for bullying messages can add to a
victim’s insecurity.”).
30.
See Moriah Balingit, Millions of Teens Are Using a New App to Post Anonymous
Thoughts, and Most Parents Have No Idea, WASH. POST (Dec. 8, 2015), http://wpo.st/b_kP1.
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anonymous messages though a live feed for other nearby users to
see.31 After numerous complaints of Yik Yak being used for
cyberbullying, the company officers have begun creating
“geo-fences” around middle school and high school campuses to
deter younger users from accessing the app.32
Cyberbullying also causes higher rates of suicidal ideation
than traditional bullying.33 Many cyberbullying-related suicides
are highly publicized.34 In one notable case, Amanda Todd, a
teenager in Vancouver, committed suicide shortly after posting a
video on YouTube describing her struggles with cyberbullying.35
As a seventh grader, Amanda flashed her breasts on camera
during a video chat to a stranger.36 The stranger then blackmailed
Amanda and circulated her picture on the Internet.37 Amanda
subsequently faced bullying from her peers.38 After Amanda’s
failed suicide attempt, students posted messages on Facebook
making fun of the attempt and calling Amanda out to kill herself.39
In 2012, Amanda shared her story on YouTube using a series of
notecards.40 Through her notecards, Amanda explains how the
bullying led to anxiety, major depression, panic disorders, and
cutting.41 Amanda hanged herself just one month after posting the
video.42
The highly publicized nature of cyberbullying-related suicides
such as Amanda’s often spurs legislative action against
cyberbullying.43 In the aftermath of Amanda Todd’s suicide,
Canada passed a bill criminalizing the posting of “intimate
image[s]” of another individual without her permission.44
31.
32.
YIK YAK, http://www.yikyakapp.com (last visited Apr. 22, 2016).
Diana Graber, Yik Yak App Makers Do the Right Thing, HUFFINGTON POST:
SCREEN SENSE (May 26, 2014), http://www.huffingtonpost.com/diana-graber/yik-yak-app
-makers-do-the_b_5029679.html.
33.
Mitch van Geel, Paul Vedder & Jenny Tanilon, Relationship Between Peer
Victimization, Cyberbullying, and Suicide in Children and Adolescents, 168 JAMA
PEDIATRICS 435, 438 (2014).
34.
See Six Unforgettable Cyberbullying Cases, supra note 5.
35.
Id.
36.
My Story: Struggling with Bullying, Suicide, Self-Harm, YOUTUBE (Sept. 7, 2012),
https://www.youtube.com/watch?v=vOHXGNx-E7E.
37.
Id.
38.
Id.
39.
Id.
40.
Id.
41.
Id.
42.
Six Unforgettable Cyberbullying Cases, supra note 5.
43.
Id.
44.
Protecting Canadians from Online Crime Act, S.C. 2014, c 31 (Can.),
http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=
6830553&File=30; Terry Pedwell, Cyberbullying Bill Goes Too Far, Says Mother of Amanda
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Similarly, Vermont’s Bully Prevention Law was passed in 2004
after the suicide of cyberbullying victim Ryan Halligan.45 The law
requires public school districts to develop a comprehensive
approach both to prevent and to discipline students for bullying.46
Although suicide cases may bring media recognition to the
problem of cyberbullying, cyberbullying affects more than the
handful of suicide victims.47 Cyberbullying is widespread; fifty
percent of people age fourteen to twenty-four report being a victim
of digital abuse at some point in their life.48 The harm caused by
widespread cyberbullying raises a need for laws prohibiting
cyberbullying to protect all of these victims.49
III. CYBERBULLYING AND THE FIRST AMENDMENT
Before exploring how cyberbullying should be criminalized, it
is necessary to answer whether prohibiting cyberbullying is
constitutional under the First Amendment.
A. Protected Speech
The First Amendment says, “Congress shall make no
law . . . abridging the freedom of speech.”50 This right has been
incorporated to the states through the Fourteenth Amendment.51
Criminalizing cyberbullying, a form of speech, triggers First
Amendment issues.52 The Supreme Court has not decided whether
cyberbullying is protected speech under the First Amendment.53
In 2012 the Supreme Court denied certiorari on three
Todd, HUFFINGTON POST (July 13, 2014, 5:59 AM), http://www.huffingtonpost.ca
/2014/05/13/cyberbullying-bill-c-13-amanda-todd-carol_n_5317391.html.
STORY,
http://www.ryanpatrickhalligan.org/laws
45.
Laws
Passed,
RYAN’S
-passed.htm (last visited Apr. 22, 2016).
46.
VT. STAT. ANN. tit. 16, § 131 (Supp. 2013).
47.
A THIN LINE, supra note 7 (reporting that 8% of victims of cyberbullying report
having suicidal thoughts).
48.
Id.
49.
Linda Sanchez, Protecting Victims, Preserving Freedoms, HUFFINGTON POST
(May 25, 2011), http://www.huffingtonpost.com/rep-linda-20/protecting-victims-pre
ser_b_198079.html (Congresswoman Sanchez explaining that “[s]evere online bullying
must have consequences”).
50.
U.S. CONST. amend. I.
51.
See Gitlow v. New York, 268 U.S. 652, 666 (1925).
52.
See 2 MICHAEL SCOTT, SCOTT ON MULTIMEDIA LAW § 25.04 (3d ed. 2014)
(explaining that “technologies such as e-mail, electronic bulletin boards, electronic libraries,
software, search words used on the Internet, Facebook status updates, and material
published on the Internet” are protected by the First Amendment).
53.
MORRIS POLICH & PURCY LLP, THE SUPREME COURT’S REFUSAL TO HEAR
CYBERBULLYING CASES LEAVES LAW UNCLEAR (2012), http://www.mpplaw.com/files/Pub
lication/691836d4-078b-454b-b0d3-306f2651471e/Presentation/PublicationAttachment/c2ed8d
b4-f043-4194-ba82-324935e874eb/Supreme-Courts-Refusal-to-Hear-Cyberbullying-Cases.pdf.
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cyberbullying cases.54 The Third Circuit, however, in the
companion cases Snyder v. Blue Mountain School District and
Layshock v. Hermitage School District, held that a school’s
disciplinary actions against a student who created fake online
profiles of a principal and assistant principal violated the First
Amendment.55 In contrast, the Fourth Circuit in Kowalski v.
Berkeley County School District upheld the school district’s
disciplinary action against a student who posted comments on a
Myspace group, alleging that a fellow student had herpes.56
Although the Supreme Court has yet to decide this First
Amendment issue directly, cyberbullying should not be protected
under the First Amendment because this speech may fit under one
of the First Amendment exceptions, and in the alternative, the
government has a compelling interest to protect children.57
The Supreme Court has held that certain speech is not
protected by the First Amendment’s freedom of speech provision.58
The First Amendment does not protect “fighting words,”59 true
threats,60 obscenity,61 or speech that incites illegality.62 In
determining
whether
the
First
Amendment
protects
cyberbullying, analysis must begin with these established
exceptions.
Cyberbullying may fit under the fighting words exception to
the First Amendment.63 Fighting words are defined as “those
which by their very utterance inflict injury or tend to incite an
immediate breach of the peace.”64 The utterance of these words
makes it likely that the target of the speech would become violent
in response.65 The reasoning behind this exception is that this
54.
Id.
55.
Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 926–29, 932 (3d Cir. 2011);
Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 216 (3d Cir. 2011). Note that these cases
do not fit under the definition of cyberbullying that this Comment purports to use because
the speech does not target a minor. See discussion supra Part II (discussing the definition
of cyberbullying).
56.
Kowalski v. Berkeley Cty. Sch. Dist., 652 F.3d 565, 571–73 (4th Cir. 2011).
57.
See Calvert, supra note 12, at 35–44 (arguing that speech aimed at children fits
the fighting words exception); see also Ginsberg v. New York, 390 U.S. 629, 640 (1968)
(reasoning that the government has a compelling interest to protect children).
58.
See Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) (explaining that
preventing “certain well-defined and narrowly limited classes of speech” is constitutional).
59.
Id. at 573–74 (holding that the phrases “damned racketeer” and “damned Fascist”
are fighting words).
60.
Virginia v. Black, 538 U.S. 343, 359 (2003).
61.
Miller v. California, 413 U.S. 15, 23 (1973).
62.
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
63.
Calvert, supra note 12, at 35–44.
64.
Chaplinsky, 315 U.S. at 572 (footnote omitted).
65.
Id.
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speech has minimal social value compared to the state’s interest
in keeping the peace.66 Although the fighting words exception has
not been overturned, it has been significantly narrowed.67
Notwithstanding the Supreme Court’s history in limiting the
fighting words doctrine, cyberbullying may fit the fighting words
exception.68 Speech aimed at children should have a lower
threshold for constituting fighting words because children have a
lower level of personal restraint.69 The Supreme Court previously
recognized a higher threshold for what constitutes fighting words
depending on the target.70 In Houston v. Hill, the Court recognized
that the threshold for what constitutes fighting words is higher
when the target of the speech is a police officer.71 The Court
reasoned that a police officer is trained to have more restraint than
the average person.72 As the Court has adjusted the threshold
when the target has a higher level of restraint, it seems the Court
could also lower the threshold when the target has a lower level of
restraint for withstanding acts of cyberbullying.73
Although cyberbullying may fit under the fighting words
exception, it will likely not fit wholly under any other exception
such as obscenity or true threats. The Court defines obscene
material as “material which deals with sex in a manner appealing
to prurient interest.”74 The test for whether the material appeals
to prurient interest asks whether the material “offends the
common conscience of the community by present-day standards.”75
Cyberbullying is commonly sexual in nature.76 Highly publicized
cases have involved a college student posting a video online of his
roommate engaging in homosexual acts77 or a stranger using a
picture of a girl’s bare breasts as his Facebook profile picture.78
Because cyberbullying encompasses more than speech that is
sexual in nature, this Comment will not address whether any of
66.
Id.
67.
ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 1034 (4th ed 2011).
68.
Calvert, supra note 12, at 35–44.
69.
See id. at 41.
70.
Id. at 39–40.
71.
Houston v. Hill, 482 U.S. 451, 462 (1987).
72.
Id. (citing Lewis v. City of New Orleans, 415 U.S. 130, 135 (1974) (Powell, J.,
concurring)).
73.
Calvert, supra note 12, at 41.
74.
Roth v. United States, 354 U.S. 476, 487 (1957) (footnote omitted).
75.
Id. at 490.
76.
See Six Unforgettable Cyberbullying Cases, supra note 5 (providing examples of
highly publicized cyberbullying cases, including several involving sexual content).
77.
Meet Tyler, TYLER CLEMENTI FOUND., http://www.tylerclementi.org/tylers-story/
(last visited Apr. 22, 2016).
78.
Six Unforgettable Cyberbullying Cases, supra note 5.
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these cyberbullying scenarios fit within the Supreme Court’s
definition of obscene material.79 Likewise, it is not important
whether certain cases of cyberbullying fit under the Court’s
definition of true threats because cyberbullying encompasses more
than just threatening speech.80 Addressing only the limited
instances of cyberbullying that are either obscene or threatening
would not be enough to put an end to cyberbullying.81
B. Special Interest in Protecting Children
Criminalizing cyberbullying is constitutional even if it does
not fit within one of the First Amendment exceptions because
cyberbullying is aimed at children.82 The government has a
broader right to create laws restricting children’s speech.83
Although children have First Amendment rights, these rights are
restricted to a greater extent than for adults.84 The government
has greater authority to create laws that restrict the rights of
children because the government has a compelling interest to
protect children from harm.85 Two cases illustrate the
government’s wide authority to regulate speech dealing with
children.86 In Prince v. Massachusetts, the Supreme Court held
that a Massachusetts child-labor statute, which subsequently
prevented a Jehovah’s Witness child from selling religious
pamphlets, was constitutional even though the labor law
happened to affect the child’s right to speech and religion.87 The
Court reasoned that the state has more authority to regulate
children’s activities than adult activities and that the state can
“safeguard children from abuses” that may affect their “growth
into well-developed men and citizens.”88 In Ginsberg v. New York,
the Supreme Court upheld a New York statute prohibiting the sale
79.
See What Is Cyberbullying, supra note 20 (indicating that “mean text messages”
and “rumors sent by e-mail” can also fall under the cyberbullying umbrella).
80.
See id.; What Is Bullying, supra note 21.
81.
See 5 Different Types of Cyberbullying, END TO CYBER BULLYING ORG.,
http://www.endcyberbullying.org/5-different-types-of-cyberbullying/ (last visited Apr. 22,
2016) (noting exclusion and outing as types of nonthreatening cyberbullying).
82.
See People v. Marquan M., 19 N.E.3d 480, 485 (N.Y. 2014) (“Cyberbullying is not
conceptually immune from government regulation, so we may assume . . . that the First
Amendment permits the prohibition of cyberbullying directed at children, depending on
how that activity is defined.” (citation omitted)).
83.
Ginsberg v. New York, 390 U.S. 629, 638–40 (1968).
84.
Id.
85.
See Marquan M., 19 N.E.3d at 485 (citing Reno v. Am. Civil Liberties Union, 521
U.S. 844, 875 (1997)).
86.
Ginsberg, 390 U.S. at 638–40; Prince v. Massachusetts, 321 U.S. 158, 168–70
(1944).
87.
Prince, 321 U.S. at 159–60, 170.
88.
Id. at 165.
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of obscene material harmful to minors.89 The Court reasoned that
the state has an “independent interest in the well-being of its
youth.”90 The Court followed the test in Prince and concluded that
prohibiting the sale of certain magazines had a “rational relation
to the objective of safeguarding minors from harm.”91
As illustrated in Ginsberg, to find criminalizing cyberbullying
constitutional under the First Amendment, there must be a rational
relation between criminalizing cyberbullying and safeguarding
minors from harm. Cyberbullying can lead to a greater risk of
depression and isolation in adolescents as well as an increase in
suicidal ideation.92 Cyberbullying is widespread, and a significant
number of children and teens are at risk of these harms.93 The
incidence of cyberbullying is high and the harms associated with
cyberbullying are great; therefore, cyberbullying would likely meet
the low bar created by the rational-relation standard.94
C. Restricting Speech in Schools
As the Supreme Court has not answered directly whether
cyberbullying is a protected form of speech, many lower courts
turn to a line of cases dealing with restricting speech in public
schools.95 This line of cases can be helpful because many states are
currently dealing with the issue of cyberbullying within the school
system.96
In Tinker v. Des Moines Independent Community School
District, the Supreme Court held that student speech that
“materially and substantially” interferes with discipline at the
school is not protected by the First Amendment.97 This case arose
89.
Ginsberg, 390 U.S. at 638–40, 643.
90.
Id. at 640.
91.
Id. at 643.
92.
See supra Part I (discussing the harmful effects of cyberbullying); see also van
Geel, Vedder & Tanilon, supra note 33, at 438; Zahriyeh, supra note 11 (“In general, youth
bullied by their peers are more than twice as likely to report suicidal thoughts and more
than three times more likely to report a suicide attempt . . . .”).
93.
NAT’L CRIME PREVENTION COUNCIL, STOP CYBERBULLYING BEFORE IT STARTS,
http://www.ncpc.org/resources/files/pdf/bullying/cyberbullying.pdf (last visited Apr. 22,
2016) (“Forty-three percent of teens have been victims of cyberbullying in the last year.”).
94.
See Ginsberg, 390 U.S. at 641–43 (reasoning that a rational relation can exist
when a causal link is not disproved).
95.
Jacobs, supra note 15.
96.
See DENA T. SACCO ET AL., AN OVERVIEW OF STATE ANTI-BULLYING LEGISLATION
AND
OTHER
RELATED
LAWS
5
(2012),
http://cyber.law.harvard.edu/sites
/cyber.law.harvard.edu/files/State_Anti_bullying_Legislation_Overview_0.pdf (indicating
that legislation concerning bullying at schools has been enacted in the vast majority of
states).
97.
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969) (quoting
Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).
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after several students were suspended from school after wearing a
black armband in protest to the Vietnam War, violating the
school’s policy prohibiting wearing the armbands at school.98 The
Court held that the school district’s policy was unconstitutional,
reasoning that prohibiting students from wearing armbands
would do no more than protect students from the discomfort that
comes from the expression of unpopular viewpoints.99 Wearing
armbands at school would neither interfere with the work of the
schools or the rights of the other students.100
The Supreme Court took a divergent view when it held a
student’s suspension constitutional in Bethel School District v.
Fraser.101 In Fraser, a student was suspended for delivering a
speech with sexual innuendo aimed at another student during a
high school assembly.102 The Supreme Court distinguished the
facts in Fraser from the facts in Tinker, as the speech in Fraser
involved more than passive, undisruptive conduct.103 The speech
in Fraser “could well be seriously damaging to its less mature
audience,” as it glorified male sexuality and insulted teenage
girls.104 The Court further reasoned that it is the responsibility of
public schools to instill the fundamental values of “habits and
manners of civility” upon its students, who must take into account
the sensibilities of other students.105
The Supreme Court has permitted broader restrictions of
speech in schools when the speech uses school-sponsored
resources106 or when the speech presents a danger to the
student.107 In Hazelwood School District v. Kuhlmeier, a school
principal refused to allow students to publish two articles in the
school newspaper: one about teen pregnancy and the other about
divorce.108 The principal believed that these topics were not
appropriate for the younger students and was concerned that the
students and parents of students referred to in these articles,
98.
Id. at 504.
99.
Id. at 510–11.
100.
Id. at 509.
101.
Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 685–86 (1986).
102.
Id. at 677–79.
103.
Id. at 679–80.
104.
Id. at 683.
105.
Id. at 681 (quoting CHARLES A. BEARD & MARY R. BEARD, NEW BASIC HISTORY OF
THE UNITED STATES 228 (1968)). The court describes the students in the audience as
appearing “bewildered and embarrassed.” Id. at 678. In response, one of the teachers “found
it necessary to forgo a portion of the scheduled class lesson in order to discuss the speech
with the class.” Id.
106.
See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 272–73 (1988).
107.
See Morse v. Frederick, 551 U.S. 393, 408 (2007).
108.
Kuhlmeier, 484 U.S. at 262–64.
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although not mentioned by name, would be identified in context.109
The Court did not use the stricter Tinker analysis but reasoned
that public schools can prohibit certain student speech in
school-sponsored activities if the restriction is “reasonably related
to legitimate pedagogical concerns.”110
Lastly, in Morse v. Frederick, a student was suspended when
he held up a banner during an off-campus, school-sponsored
activity that read “Bong HiTS 4 Jesus.”111 The Court did not use
the “material and substantial interference” test set out in
Tinker.112 Rather, the Court held that the student could
constitutionally be suspended because schools, which are
entrusted to safeguard students, have the right to protect students
from speech encouraging drug abuse.113
Read together, these four cases outline what speech schools
can or cannot regulate.114 The critical factor is whether the speech
the school is aiming to control affects the educational mission of
the school, regardless of whether the speech takes place on or off
campus.115 The banner in Morse, although at a school-sponsored
activity, did not occur on campus grounds.116 The emphasis in this
case is that the school could punish the student holding up the
banner because the banner was aimed at other students during
the school-sponsored event.117 Although the language in Tinker
may suggest that the First Amendment rights may be narrowed
at the “schoolhouse gate,”118 most courts have not interpreted this
language to exclude off-campus speech that affects the school
environment.119
Following the analysis from Tinker and its progeny,
cyberbullying can be prohibited by public schools if it negatively
interferes with the mission of the school or creates a danger to its
students. Similar to how the sexual innuendo in Fraser could have
109.
Id. at 263 (noting that the principal was concerned with the articles’ references
to birth control and sexual activities).
110.
Id. at 272–73.
111.
Morse, 551 U.S. at 397–98.
112.
See id. at 403–09 (basing its decision instead on the “serious and palpable” danger
of student drug abuse).
113.
Id.
114.
Jacobs, supra note 15.
115.
See Ari Ezra Waldman, Hostile Educational Environments, 71 MD. L. REV. 705,
724–27 (2012) (“[T]he school’s educational relationship to its students is salient.”).
116.
Morse, 551 U.S. at 397.
117.
Id. at 400–01.
118.
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).
119.
See Waldman, supra note 115, at 726 (“[M]ost courts . . . ignore the
on-campus/off-campus dichotomy and assess off-campus student speech on its on-campus
effects.”).
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caused serious damage to a less mature audience, cyberbullying
can and does cause serious damage to adolescents by affecting
victims’ mental and physical health and impacting academic
performance.120 Students who witness bullying and cyberbullying,
even if they are not the target of the bullying, also have a higher
rate of mental health problems and a greater use of tobacco,
alcohol, and drugs.121 Cyberbullying is not comparable to the pure
passive speech found in Tinker, but it is “aggressive, disruptive
action.”122
Not only are the effects of cyberbullying realized on campus,
but there is also a direct nexus between certain cyberbullying and
the public school system.123 First, even though cyberbullying may
occur off campus, the widespread use of the Internet allows online
speech to reach campus.124 More importantly, the relationship
between the aggressor and victim are commonly created through
introduction at school.125
Although the Tinker line of cases is helpful in combating
cyberbullying in public schools, not all cyberbullying aggressors
are public-school students or even children, even if the aggressor’s
speech is targeting a child.126 However, the Tinker line of case may
still be helpful in highlighting the nonpassive nature of
cyberbullying and the interest in protecting school-aged children
from the dangers of cyberbullying, regardless of whether the
aggressor is a child himself.
D. Overbreadth Doctrine
Even if cyberbullying is not protected under the First
Amendment, statutes regulating cyberbullying must be narrow
enough to avoid violating the First Amendment through the
overbreadth doctrine. The legislature may have a difficult time
drafting statutes regulating only cyberbullying without
incidentally regulating other forms of protected speech because
there is no single definition of cyberbullying.127 The problem with
criminalizing cyberbullying in relation to the overbreadth
doctrine is illustrated in People v. Marquan M., a recent case
120.
Effects of Bullying, STOP BULLYING, http://www.stopbullying.gov/at-risk
/effects/index.html (last visited Apr. 22, 2016).
121.
Id.
122.
See Tinker, 393 U.S. at 508.
123.
Waldman, supra note 115, at 734–35.
124.
Id. at 735.
125.
Id. at 734.
126.
See Megan’s Story, supra note 5 (telling the story of an adult neighbor
cyberbullying a child).
127.
Calvert, supra note 12, at 16.
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from the Court of Appeals of New York.128 In 2010, the New York
State Legislature passed the Dignity for All Students Act
(DASA), which prohibited bullying on school property or at school
functions. Although amended in 2012, the original version of
DASA did not address cyberbullying.129 In response, the Albany
County Legislature passed a local law criminalizing “any act of
communicating or causing a communication to be sent by
mechanical or electronic means . . . with the intent to harass,
annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or
otherwise inflict significant emotional harm on another
person.”130 The Court of Appeals of New York struck down the
local law as overbroad in 2014.131 The case arose when a
sixteen-year-old student was prosecuted under the statute for
posting sexual information and photographs of classmates. The
court, assuming for the purposes of the case that criminalizing
cyberbullying aimed at children was permissible, found that the
Albany legislation violated the overbreadth doctrine in two ways.
First, the language of the statute did not limit the criminalization
of certain speech to that which is just aimed at children but to
“any person or entity.”132 Second, the statute criminalized speech
meant to “harass, annoy . . . taunt . . . [or] humiliate” not just
communication meant to “threaten, abuse . . . intimidate,
torment . . . or otherwise inflict significant emotional harm.”133
Although the court seems to suggest that a narrower statute
might pass First Amendment muster, it refuses to use the
severance doctrine.134 The court would not only have to sever the
portion that pertained to adults and other entities, but would also
have to sever the outlawing of “annoying and embarrassing
speech.”135 These modifications would significantly change the
law that was written.
In response to the decision by the New York Court of Appeals,
Albany County passed a “Local Law F” in October 2014 to replace
128.
People v. Marquan M., 19 N.E.3d 480 (N.Y. 2014).
129.
Id. at 483. DASA’s 2012 amendment expanded the definition of bullying to include
“any form of electronic communication,” including off-campus communications that
“foreseeably create a risk of substantial disruption within the school environment, where it
is foreseeable that the conduct, threats, intimidation or abuse might reach school property.”
Id. (quoting N.Y. EDUC. LAW § 11(7), (8) (McKinney Supp. 2016)).
130.
Id. at 484 (quoting Albany County, N.Y., Local Law No. “F” for 2010 (Nov. 8,
2010), http://app.albanycounty.com/legislature/resolutions/2010/20101108/10-LL_F.pdf).
131.
Id. at 488.
132.
Id. at 486.
133.
Id. (quoting Albany County, N.Y., Local Law No. “F” for 2010).
134.
Id. at 487.
135.
Id.
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the overbroad statute.136 Albany County Executive, Dan McCoy,
reports that the new law is structured to avoid the problems
addressed by the appellate judges.137 The new law narrows the
definition of cyberbullying by limiting the crime to communication
that is aimed only at minors and limiting the forms of electronic
communication that constitute cyberbullying.138
IV. ENACTED AND PROPOSED LEGISLATION
Cyberbullying legislation has been proposed or enacted on the
local, state, and federal level. The language in these statutes
illustrates the various methods a legislature can use to combat
cyberbullying and its harmful effects.
A. State and Local Legislation
Statutes that criminalize cyberbullying, such as the Albany
ordinances mentioned above, vary widely, often differing in how
cyberbullying is defined and the criminal sanction imposed.
Legislatures have proposed these statutes at the local, state, and
federal level. Albany County’s “Local Law F,” which imposes a
sentence that includes a $1,000 fine and up to a year in jail, is just
one example of a law enacted by a local government criminalizing
cyberbullying.139 Vernon County, Wisconsin passed an ordinance
in 2012 making it illegal to send electronic information “with the
intent to annoy, offend, demean, ridicule, degrade, belittle,
disparage or humiliate any person and which serves no legitimate
purpose.”140 Individuals who violate the ordinance have to pay a
fine between $50 and $500 or spend up to thirty days in jail if
unable to make payments.141 The Vernon County ordinance seems
to have a similar overbreadth problem as the 2010 Local Law in
Albany County because the language is not limited to children
targets and includes simply “annoying” speech.
On the state level, only twenty-four states include
cyberbullying in their anti-bullying statutes, and out of those, only
seven states impose a criminal sanction on cyberbullying.142 These
136.
See Albany County, N.Y., Local Law No. “F” for 2014 (Sept. 8, 2014),
http://app.albanycounty.com/legislature/resolutions/2014/20140908/2014-LL_F.pdf.
137.
See Press Release, Albany County, County Executive McCoy Signs Law Banning
Cyberbullying (Oct. 9, 2014), http://www.albanycounty.com/NewsandUpdates/News/14-10
-09/County_Executive_McCoy_Signs_Law_Banning_Cyberbullying_in_Albany_County.aspx.
138.
Albany County, N.Y., Local Law No. “F” for 2014.
139.
Id.
140.
VERNON COUNTY, WIS., CODE § 42–14 (effective Nov. 8, 2012).
141.
Id.
142.
HINDUJA & PATCHIN, supra note 17 (listing the states that include cyberbullying
in their antibullying statutes as Arkansas, California, Connecticut, Florida, Hawaii,
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states include: Arkansas, Louisiana, Missouri, Nevada, North
Carolina, Tennessee, and Washington.143 State statutes also vary
widely in the approach each state takes in criminalizing
cyberbullying.144 The different approaches can be illustrated by
comparing the language in different cyberbullying statutes, such
as those found in Louisiana and Arkansas.145
Louisiana makes cyberbullying a crime punishable by a fine
of up to $500 or imprisonment for no more than six months, or
both.146 This statute defines cyberbullying as the “transmission of
any electronic textual, visual, written, or oral communication with
the malicious and willful intent to coerce, abuse, torment, or
intimidate a person under the age of eighteen.”147 Although the
target is limited to individuals under eighteen, the age of the
offender is not limited.148 Using the analysis in Marquan M., it is
likely that this statute would not be overturned for being
overbroad because it does not prohibit mere “annoying speech,”
nor does Louisiana’s definition include communication aimed at
adults or entities.
Arkansas makes it a Class B misdemeanor to communicate
electronically with the purpose to “frighten, coerce, intimidate,
threaten, abuse, or harass, another person.”149 The statute
requires the communication to be “severe, repeated, or hostile.”
The Arkansas statute includes an additional provision that makes
cyberbullying a school employee a Class A misdemeanor.150
Defining cyberbullying in a way that includes adults, which school
employees presumably are, goes against the accepted definition
used in this Comment.151 Consequently, the government may not
Illinois, Kansas, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri,
Nevada, New Hampshire, New Mexico, New York, North Carolina, Oregon, Rhode Island,
Tennessee, Utah, Virginia, and Washington).
143.
Id.
144.
Id.
145.
Compare LA. STAT. ANN. § 14:40.7 (Supp. 2016) (“Cyberbullying is the
transmission of any electronic textual, visual, written, or oral communication with the
malicious and willful intent to coerce, abuse, torment, or intimidate a person under the age
of eighteen.”), with ARK. CODE ANN. § 5-71-217 (Supp. 2013) (“A person commits the offense
of cyberbullying if . . . she transmits, sends, or posts a communication by electronic means
with the purpose to frighten, coerce, intimidate, threaten, abuse, or harass, another person;
and . . . [t]he transmission was in furtherance of severe, repeated, or hostile behavior toward
the other person.”).
146.
LA. STAT. ANN. § 14:40.7.
147.
Id.
148.
Id.
149.
ARK. CODE ANN. § 5-71-217.
150.
Id.
151.
See discussion supra Part II.A (defining cyberbullying as “bullying that takes
place using electronic technology” aimed at children).
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have the same special interest in protecting the school
employee.152
Most states that have cyberbullying statutes but do not
criminalize the action confine their legislation to the school setting
“by requiring schools to set up guidelines and procedures” to
combat cyberbullying.153 In 2008, Florida passed the Jeffrey
Johnson Stand Up for All Students Act, requiring all public schools
to adopt an anti-bullying policy that includes the prohibition of
cyberbullying against any student or employee of a public K–12
school.154 The statute prohibits cyberbullying on campus, during
school sponsored activities, through technology accessed via a
computer or computer network within the scope of the public
school, or even off campus using nonschool related computers if
the communication “substantially interferes” with the educational
process or operation of the school.155 Likewise, in 2015, a nearly
identical Illinois law became effective, allowing schools to
discipline their students for cyberbullying that occurs on or off
campus if the bullying is disruptive to the classroom and the
bullying is reported to the school administrators.156 The Florida
and Illinois statutes share an identical definition of the term
cyberbullying, and both specify that the term includes bullying
through actions such as impersonating another person online,
distributing communication electronically, or posting material
electronically so that one or more persons may see it.157 One
fundamental difference is that the Florida statute includes
cyberbullying aimed at school employees.158 As with the Arkansas
statute criminalizing cyberbullying, the Illinois statute could be
arguably
overbroad
under
Marquan
M.
reasoning.159
Notwithstanding the possible overbreadth in the Illinois statute,
the language in both the Florida and Illinois statutes fits nicely
within the framework of the Tinker line of cases because the
152.
See People v. Marquan M., 19 N.E.3d 480, 485 (N.Y. 2014) (citing Reno v. Am.
Civil Liberties Union, 521 U.S. 844, 875 (1997)) (explaining that the government has a
compelling interest to protect children).
153.
S. Cal Rose, Note, From LOL to Three Months in Jail: Examining the Validity
and Constitutional Boundaries of the Arkansas Cyberbullying Act of 2011, 65 ARK. L. REV.
1001, 1008–09 (2012).
154.
FLA. STAT. ANN. § 1006.147 (West Supp. 2015).
155.
Id.
156.
2014 Ill. Laws 3739; see also Jaci Kohn, New Law Gives Authority to Address
Cyberbullying off Campus, TIMES (Dec. 28, 2014), http://www.mywebtimes.com/news
/local/new-law-gives-authority-to-address-cyberbullying-off-campus/article_563447f7-9ea6-5
d72-b5e5-d3133f057ebb.html.
157.
FLA. STAT. ANN. § 1006.147(3)(b); 2014 Ill. Laws at 3741.
158.
FLA. STAT. ANN. § 1006.147(2).
159.
See 2014 Ill. Laws at 3740–41; People v. Marquan M., 19 N.E.3d 480, 485–86
(N.Y. 2014).
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language in the statutes does not regulate off-campus activity that
does not substantially interfere with the operation of the school.160
Although using the public school system may avoid the harder
First Amendment questions, this approach may not be the most
effective for combating cyberbullying.161
B. Federal Legislation
The federal legislature has also attempted to pass
cyberbullying legislation. In 2009, the legislature proposed the
Megan Meier Cyberbullying Prevention Act to make cyberbullying
a federal crime, but it was never enacted. The bill defined
cyberbullying as “any communication [intending] to coerce,
intimidate, harass, or cause substantial emotional distress to a
person, using electronic means to support severe, repeated, and
hostile behavior.”162 The bill provided that those who transmit this
communication can be fined and imprisoned up to two years.163
The Act does not limit cyberbullying to minors but does emphasize
minors as the target of cyberbullying.164 The Act includes statistics
within its findings regarding the ratio of children with access to a
computer at home and the percentage of child mental-health
patients treated after a “problematic Internet experience.”165 The
Act was created in response to the suicide of Megan Meier, which
was thought to be the result of cyberbullying initiated at least in
part by an adult.166
Leading up to her suicide, Megan was communicating on
MySpace with an individual with the profile name “Josh Evans,”
who claimed to be a sixteen-year-old male from the same town.
After developing an online friendship with “Josh Evans,” Megan
received messages from Josh’s account indicating that he did not
want to be friends with Megan because he had heard she was
mean.167 Josh then began sharing Megan’s private messages with
others.168
160.
FLA. STAT. ANN. § 1006.147(2)(d); 2014 Ill. Laws at 3740–41; Tinker v. Des Moines
Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969).
161.
See discussion supra Part III (discussing possible arguments that cyberbullying
statutes pass First Amendment muster); see also discussion infra Part V.A (discussing why
using the school system is not the best approach to prevent cyberbullying).
162.
Megan Meier Cyberbullying Prevention Act, H.R. 1966, 111th Cong. § 3 (2009),
https://www.gpo.gov/fdsys/pkg/BILLS-111hr1966ih/pdf/BILLS-111hr1966ih.pdf.
163.
Id.
164.
Id. §§ 2–3.
165.
Id. § 2(1), (6).
166.
Megan’s Story, supra note 5.
167.
Id.
168.
Id.
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On the day of her suicide, Megan was upset after reading
posts about herself on MySpace calling her a “slut” and “fat.”169
Megan’s parents found Megan’s body hanging in her closet that
evening. After finding his daughter’s body, Megan’s father
examined Megan’s computer and found what he believed was the
last message that Megan saw before her suicide, which read:
“Everybody in O’Fallon knows how you are. You are a bad person
and everybody hates you. Have a shitty rest of your life. The world
would be a better place without you.”170 Six weeks after the suicide,
Megan’s parents were informed that Josh Evans never existed; he
was a fictional character with a fake online profile created by Lori
Drew, a parent of one of Megan’s on-and-off-again friends.171 As
the aggressor in the cyberbullying against Megan was an adult, it
is only rational that the language in the Megan Meier
Cyberbullying Prevention Act includes adult aggressors.
A federal statute with similar language to the Megan Meier
Cyberbullying Act would be an effective solution to combat
cyberbullying, as other alternatives do not work.
V. ALTERNATIVES TO FEDERAL LEGISLATION CRIMINALIZING
CYBERBULLYING DO NOT WORK
Combating cyberbullying though the public school system,
tort action, state legislation, or existing federal legislation cannot
be as effective as a federal statute criminalizing cyberbullying.
A. Combating Cyberbullying Through the Public School System
Although historically bullying has been left to the public
school system, legislatures are beginning to treat serious forms of
bullying as criminal conduct.172 Statutes that grant sole
responsibility of enforcing cyberbullying laws to public schools
impose a significant burden on the school.173 Statutes that use
language similar to Florida and Illinois’s statute require public
school districts to develop policies and procedures to prevent and
discipline students for cyberbullying, but they give little direction
169.
Id.
170.
Id.
171.
Tom de Castella & Virginia Brown, Trolling: Who Does It and Why?, BBC NEWS
(Sept. 14, 2011), http://www.bbc.com/news/magazine-14898564; Megan’s Story, supra note
5.
172.
SACCO ET AL., supra note 96, at 3, 7–10.
173.
See FLA. STAT. ANN. § 1006.147(4) (West Supp. 2015); 2014 Ill. Laws 3739, 3741–
42; Michelle R. Davis, Schools Tackle Legal Twists and Turns of Cyberbullying, EDUC. WEEK
(Feb. 4, 2011), http://www.edweek.org/dd/articles/2011/02/09/02cyberbullying.h04.html.
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on how to deal with routine cases of cyberbullying.174 These laws
have been described as “bewildering,” “beyond murky,” and
“contradictory.”175 School administrators are put in a difficult
position when determining how to respond to specific acts of
cyberbullying.176 Case law cuts in different directions, with some
schools being sued for acting when they should not have acted and
others for not acting when they should have acted.177
Another problem with giving schools the sole responsibility
for dealing with cyberbullying is that schools do not have authority
to address all instances of cyberbullying.178 School policies do not
address cyberbullying initiated by an individual outside of the
public school system.179 A school policy could not have been used
to deter or punish Lori Drew’s conduct in bullying Megan Meier
because Drew was an adult, not a student in the public school
system.180 Even if both the cyberbully and the victim are in the
public school system, the cyberbully may still escape punishment
if she attends a different school district with a different
cyberbullying policy. Schools also have a difficult time regulating
off-campus speech of students in the public school system.
Although Tinker allows schools to regulate speech when it causes
s substantial disruption, this is a high burden to meet.181 These
shortcomings show that relying on the public school system to
regulate cyberbullying is not an effective alternative to federal
legislation criminalizing cyberbullying. Just as relying on the
public school system is not an effective alternative; neither is
relying on tort action.
174.
175.
176.
Davis, supra note 173.
Id.
Justin W. Patchin, Cyberbullying Laws and School Policy: A Blessing or Curse?,
CYBERBULLYING RES. CTR. (Sept. 28, 2010), http://cyberbullying.us/cyberbullying-laws-and
-school-policy-a-blessing-or-curse/.
177.
Id.
178.
See Morse v. Frederick, 551 U.S. 393, 408 (2007) (holding that a school can only
regulate speech that interferes with the mission of the school or endangers students at the
school); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271–73 (1988); Bethel Sch. Dist.
No. 403 v. Fraser, 478 U.S. 675, 683–86 (1986); Tinker v. Des Moines Indep. Cmty. Sch.
Dist., 393 U.S. 503, 509 (1969); BERIN SZOKA & ADAM THIERER, THE PROGRESS & FREEDOM
FOUND., CYBERBULLYING LEGISLATION: WHY EDUCATION IS PREFERABLE TO REGULATION 5,
8 (2009) (stating that school punishment for cyberbullying is only available when the
bullying is “committed by kids against kids—not by adults against kids or against other
adults”).
179.
SZOKA & THIERER, supra note 178, at 5–8; see also Kelly A. Albin, Note, Bullies
in a Wired World: The Impact of Cyberspace Victimization on Adolescent Mental Health and
the Need for Cyberbullying Legislation in Ohio, 25 CLEV.-MARSHALL J.L. & HEALTH 155,
178 (2012) (“[S]chool boards may only address cyberbullying when it is within its
jurisdiction.”).
180.
de Castella & Brown, supra note 171; Megan’s Story, supra note 5.
181.
Tinker, 393 U.S. at 509.
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B. Combating Cyberbullying Through Tort Action
Tort action is not an effective alternative to criminalizing
cyberbullying and does little to deter cyberbullies or compensate
victims. Bringing a tort action against a bully may be problematic
because the identity of the bully is often unknown.182 Even when
the identity of the bully is known, civil litigation is costly and the
victim may not be granted relief under one of the common law
torts.183 A victim of cyberbullying could potentially bring a
defamation or intentional infliction of emotional distress claim
against
the
bully.
Defamation
is
defined
as
“a
communication . . . [that] tends so to harm the reputation of
another as to lower him in the estimation of the community or to
deter third persons from associating or dealing with him.”184 To
successfully bring a defamation claim, the plaintiff must prove the
following elements: “(a) a false and defamatory statement
concerning another; (b) an unprivileged publication to a third
party; (c) fault amounting at least to negligence on the part of the
publisher; and (d) either actionability of the statement irrespective
of special harm or the existence of special harm caused by the
publication.”185
One caveat that prevents many victims from recovering under
defamation is that only purported statements of fact are
actionable.186 Although opinions can be actionable in defamation
cases, this is limited to cases where the opinion implies allegation
of undisclosed defamatory facts.187 Additionally, not all cases of
cyberbullying involve statements that are false. In 2010, Tyler
Clementi committed suicide after his college roommate posted a
message on Twitter that read “Roommate asked for the room till
midnight. I went to molly’s room and turned on my webcam. I saw
him making out with a dude.”188 The Twitter message was
accompanied with a live stream of the encounter.189 This instance
of cyberbullying would not fit under defamation because there is
no indication that what the roommate posted was in any way
inaccurate.190 Furthermore, even if an instance of cyberbullying
182.
Bradley A. Areheart, Regulating Cyberbullies Through Notice-Based Liability,
117 YALE L.J. POCKET PART 41, 41–42 (2007).
183.
Id.
184.
RESTATEMENT (SECOND) OF TORTS § 559 (AM. LAW INST. 1977).
185.
Id. § 558.
186.
Id.
187.
Id. § 566.
188.
Lisa W. Foderaro, Private Moment Made Public, Then a Fatal Jump, N.Y. TIMES,
Sept. 30, 2010, at A1, http://nyti.ms/19sdUEB.
189.
Id.
190.
RESTATEMENT (SECOND) OF TORTS § 558; Foderaro, supra note 188.
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did include a false statement, the statement is not actionable if a
reasonable reader, given the context, would not believe the
statement was true.191
Cyberbullying may fit more easily into a claim for intentional
infliction of emotional distress (IIED). The four elements of an IIED
are: (1) extreme or outrageous conduct, (2) intentionally or recklessly
performed, (3) that causes, (4) severe emotional distress to
another.192 However, IIED claims rarely succeed because the
included conduct is not outrageous enough to fit under this tort.193
Outrageous conduct is that which is “so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a civilized
community.”194 This definition creates an extremely high bar causing
most claims of IIED to fail. Even Lori Drew, whose actions against
Megan Meier appear atrocious, was acquitted of intentional infliction
of emotional distress.195 Even when outrageous conduct can be found,
judges avoid granting IIED judgments in order to avoid encouraging
an increase in IIED cases.196 Because it is difficult for victims of
cyberbullying to recover under tort claims such as defamation or
IIED, relying on tort action is not an effective alternative to federal
legislation criminalizing cyberbullying.
C. Combating Cyberbullying Through the States
A federal statute, as opposed to a state or local statute, is
the most effective way to criminalize cyberbullying. State law
regulating use of the Internet violates the interstate commerce
clause.197 The Internet can be categorized as a channel or
instrumentality of interstate commerce as the Internet is really
a “network of networks” where local computer systems are
ultimately hooked up with national systems.198 State and local
191.
Finkel v. Dauber, 906 N.Y.S.2d 697, 701–02 (Sup. Ct. 2010) (discussing a
statement that falsely accused the plaintiff of contracting AIDS by having sex with a horse
or baboon).
192.
RESTATEMENT (SECOND) OF TORTS § 46.
193.
See, e.g., Howell v. N.Y. Post Co., 612 N.E.2d 699, 702 (1993) (“[O]f the intentional
infliction of emotional distress claims considered by this Court, every one has failed because
the alleged conduct was not sufficiently outrageous.”).
194.
RESTATEMENT (SECOND) OF TORTS § 46 cmt. d.
195.
Editorial, Vague Cyberbullying Law, N.Y. TIMES, Sept. 8, 2009, at A24,
http://nyti.ms/1VqhCih.
196.
Id.
197.
See generally Dan Burk, How State Regulation of the Internet Violates the
Commerce Clause, 17 CATO J. 147 (1997), http://object.cato.org/sites/cato.org/files
/serials/files/cato-journal/1997/11/cj17n2-2.pdf.
198.
Id. at 148; Alexander Galicki, Drew Havens & Alden Pelker, Computer Crimes,
51 AM. CRIM. L. REV. 875, 887 (2014).
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laws regulating the Internet create a problem of uniformity
because the Internet allows cyberbullying to occur across local
or state lines. As discussed above, each state treats
cyberbullying differently.199 Less than half of the states have
cyberbullying legislation and only a handful of states that have
cyberbullying legislation criminalize it.200 The states that do
criminalize cyberbullying vary widely on the definition of
cyberbullying and the criminal sanction imposed. 201 Federal
legislation is needed to create a uniform and comprehensive
approach to cyberbullying.
D. Combating Cyberbullying Through Already Existing Federal
Statutes
Just as cyberbullying does not perfectly fit into existing tort
law, cyberbullying also does not fit into existing federal criminal
statutes such as the Computer Fraud and Abuse Act (CFAA).202
The acquittal of Lori Drew in United States v. Drew illustrates this
point. After the death of Megan Meier, Drew was indicted on three
counts of violating the CFAA, which prohibits “accessing a
computer without authorization or in excess of authorization and
obtaining information from a protected computer where the
conduct involves an interstate or foreign communication and the
offense is committed in furtherance of a crime or tortious act.”203
Drew was found not guilty of the felony portion of CFAA because
the jury did not find that Drew committed IIED, the tort
underlying the felony.204 The jury, however, found her guilty of a
lesser included misdemeanor of the CFAA,205 which only required
intentionally accessing a computer involved in interstate or
foreign communication without authorization or in excess of
authorization to obtain information.206 However, she was granted
a motion for judgment of acquittal because the court found that
criminalizing a user for violating any of a website’s terms of use
was unconstitutionally vague.207
199.
HINDUJA & PATCHIN, supra note 17; see discussion supra Part IV.A (surveying
the language of several local and state statutes).
200.
HINDUJA & PATCHIN, supra note 17.
201.
Id.; see also discussion supra Part IV.A (discussing Arkansas, Louisiana,
Missouri, Nevada, North Carolina, Tennessee, and Washington).
202.
See United States v. Drew, 259 F.R.D. 449, 451 n.2, 467–68 (C.D. Cal. 2009)
(granting a motion of acquittal under CFAA).
203.
Id. at 452 (citing 18 U.S.C. § 1030(a)(2)(C), (c)(2)(B)(ii) (2012)).
204.
Id. at 452–53.
205.
Id.
206.
18 U.S.C. § 1030(a)(2)(C), (c)(2)(A).
207.
Drew, 259 F.R.D. at 467–68.
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Other federal cybercrime laws such as 18 U.S.C. § 2261A
(Interstate Stalking and Prevention Act) and 18 U.S.C § 875 are
too narrow to effectively be used to criminalize cyberbullying.208 In
2006, the Interstate Stalking and Prevention Act was amended to
include “interactive computer service” in order to criminalize
cyberstalking.209 The problem with using this statute to curtail
cyberbullying is that the statute is only applicable to cases where
the cyberbully and the victim are from across state lines.210 Thus,
the statute could not be used to prevent the instances where
cyberbullying occurs between individuals within the same school
yet alone the same state.211 The language of 18 U.S.C § 875(c) is
also too narrow to be effective against cyberbullying.212 18 U.S.C
§ 875(c) states that “any communication containing any threat to
kidnap any person or any threat to injure the person of another,
shall be fined under this title or imprisoned not more than five
years, or both.”213 This statute is too narrow to be effective against
cyberbullying because it only pertains to actual threats.214
Although a small number of cyberbullying cases do involve
threats, cyberbullying encompasses a significantly broader range
of activity.215
VI. CONCLUSION
A federal statute criminalizing cyberbullying can and should
be implemented to avoid the harms of cyberbullying for which
other alternatives cannot effectively account.216 The key to
constitutional and effective cyberbullying legislation is in the
language of the statute.217 If the language of a statute is drafted
208.
ALISON M. SMITH, CONG. RESEARCH SERV., RL34651, PROTECTION OF CHILDREN
ONLINE: FEDERAL AND STATE LAWS ADDRESSING CYBERSTALKING, CYBERHARASSMENT, AND
CYBERBULLYING 5–6 (2009), http://royce.house.gov/uploadedfiles/protection_of_children
_online.pdf.
209.
Id.
210.
Id.
210.
Id.
211.
Id.
212.
Id.
213.
18 U.S.C § 875(c) (2012).
214.
SMITH, supra note 208, at 5–6.
215.
See Megan’s Story, supra note 5 (did not involve a threat); Six Unforgettable
CyberBullying Cases, supra note 5 (did not involve a threat); Meet Tyler, supra note 77 (did
not involve a threat).
216.
See Sanchez, supra note 49; discussion supra Part V (explaining the shortcomings
of these alternative approaches).
217.
See People v. Marquan M., 19 N.E.3d 480, 488 (N.Y. 2014) (reasoning that a
statute criminalizing cyberbullying was not per se unconstitutional, but that the language
of the statute was unconstitutionally overbroad).
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too broadly, the court may hold the statute unconstitutional.218 On
the other hand, if the statute is drafted too narrowly, it might not
be effective.219 For example, the National Crime Prevention
Council defines cyberbullying as requiring both a child speaker
and a child victim.220 Although using this definition in a statute
might be sufficiently narrow, it would not be helpful in instances
where an adult targeted a child as in the Megan Meier case.221
Language is not the only factor legislatures need to be concerned
with; a statute criminalizing cyberbullying needs to be federal.222
Legislation addressing cyberbullying at the state and local level
are necessarily inconsistent.223 This inconsistency not only affects
how effective state and local laws are, but also highlights another
constitutional problem. Because cyberbullying occurs over the
Internet, which is not confined to local and state boundaries, the
federal government must address cyberbullying issues because the
Internet affects interstate commerce.
Based on these considerations, a federal statute similar to the
Megan Meier Cyberbullying Prevention Act, originally proposed in
2009, would be the most effective way to combat cyberbullying.224
One change, however, is needed to ensure that the Act is both
constitutional and effective. The findings included in the Act
include various statistics regarding how cyberbullying affects
children.225 These findings may imply that the drafters intended
the Act to criminalize harmful speech that is aimed at children.226
However, to ensure that the Act is constitutional, it would be
better for the Act to explicitly limit its scope to speech that is aimed
only at children.227
218.
Id.
219.
See discussion supra Part V.D (illustrating how the Interstate Stalking and
Prevention Act and 18 U.S.C § 875 are too narrow to effectively prevent cyberbullying).
220.
What Is Cyberbullying, supra note 9.
221.
Megan’s Story, supra note 5.
222.
See discussion supra Part V.C (discussing the shortcomings of state legislation).
223.
See HINDUJA & PATCHIN, supra note 17 (describing how each state statute
addresses cyberbullying).
224.
Megan Meier Cyberbullying Prevention Act, H.R. 1966, 111th Cong. (2009),
https://www.gpo.gov/fdsys/pkg/BILLS-111hr1966ih/pdf/BILLS-111hr1966ih.pdf.
225.
Id. § 2 (finding that most children have Internet access at home, children who use
social media are more likely to be victims of cyberbullying, and cyberbullying affects a
child’s wellbeing at school).
226.
Id.
227.
See People v. Marquan M., 19 N.E.3d 480, 488 (N.Y. 2014) (holding a statute that
criminalizes cyberbullying overbroad because it did not limit its scope to criminalizing
harmful speech only aimed at children). Compare Megan Meier Cyberbullying Prevention
Act § 3, with LA. STAT. ANN. § 14:40.7 (Supp. 2016) (“[T]ransmission of any electronic
textual, visual, written, or oral communication with the malicious and willful intent to
coerce, abuse, torment, or intimidate a person under the age of eighteen.”).
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Notwithstanding this change, a federal statute similar to the
Megan Meier Cyberbullying Prevention Act that criminalizes
cyberbullying would be the most effective way to combat
cyberbullying.
Tiffany Sumrall