Difficulties Of Passing A Federal Cyberbullying Law (Hint: The First Amendment)

Why are legislators having a tough time drafting passable cyberbullying laws?

Cyberbullying is a serious problem. Every day, minors are tormented online by peers and parents of peers. To escape the emotional prison caused by cyber harassment, some victims, like Missouri teenager Megan Meier, have even paid the ultimate price.

Recognizing the destructive effects of cyberbullying, victim advocacy groups have pushed for online harassment laws, and politicians have hastened to draft effective statutes.

But few cyberbullying prevention laws have passed.

Why is a seemingly straightforward task – creating a law that prevents kids from harassing peers online – proving so difficult? Why can’t politicians strike the right balance between curbing dangerous digital harassment and protecting free speech? In most cases, the failure to pass a proper cyberbully law is a result of sloppy legal language that creates free speech loop holes.

Below are three examples of online harassment laws introduced within the last 12 months. Notice a pattern?

New York’s Cyberbullying Bill: Politicians Wanted To Outlaw Anonymous Online Speech, But Were Sent Back To The Drafting Table

The Internet Protection Act is New York legislators’ attempt to combat cyberbullying. It aims to limit anonymous online comments. Specifically, the draft bill outlines a process wherein victims are forced to “claim” offensive posts. If the poster refuses to reveal their legal name, the website operator would be compelled to remove the material. Legislators introduced the bill, but then quickly pulled it for language revisions. At the time of this writing, co-sponsors of the statute haven’t announced a re-introduction of the revised bill.

While touted as a cyberbullying prevention act, the IPA also includes protection, for elected officials, from “mean spirited and baseless political attacks.” The Internet Protection Act specifically mentions trade libel, as well.

Illinois’s Cyberbullying Proposal: Legislators Proposed Limits on Anonymous Online Speech, But Quickly Crawled Back & Are Now Working on Another Option

On February 13, 2013, Illinois State Senate representative Ira I. Silverstein introduced the Internet Posting Removal Act – SB 1614. Like New York’s proposal, Silverstein addresses the issue of anonymous cyberbullying. He admits to reading the New York draft and told reporters it was the inspiration for his proposal. (Guess he didn’t wait to see how it turned out.)

An aggressive piece of legislation, SB1614 aims to ameliorate cyberbullying thusly:

Anonymous Internet poster; right to know. A web site administrator upon request shall remove any comments posted on his or her website by an anonymous poster unless the anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name and home address are accurate. All website administrators shall have a contact number or e-mail address posted for such removal requests clearly visible in any section where comments are posted.

When you read the bill solely through cyberbullying prevention lenses, it makes sense. But what happens when Politicians start using the statute to silence critics? Precise language is a must when it comes to laws; loose lips sink ships and loose language can annihilate freedoms.

Arizona’s Cyberbullying Law: At First It Failed, Then Succeeded After Some Language Changes

In the spring of 2012, the Arizona State Legislator passed House Bill 2549; its homologation outraged free speech advocates. Detractors bristled over a broadly worded excerpt from the bill:

“It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend to use a telephone or any electronic device and use 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.”

Arizona’s Governor, Jan Brewer, agreed with the bill’s detractors. That language would have to change or she’d veto HB 2549. So, sponsors went back to the white board, struck the words “annoy or offend,” and made it clear that a threat must be lodged against a specific person. With those changes, Gov. Brewer signed it into law on May 15, 2012. As such, it is now illegal in Arizona “for any person, with intent to terrify, intimidate, threaten or harass a specific person or persons” to do the following:

  1. Direct any obscene, lewd or profane language or suggest any lewd or lascivious act to the person in an electronic communication.
  2. Disturb by repeated anonymous, unwanted or unsolicited electronic communications.

The Arizona cyberbullying law does dedicate a section to the precedence of constitutionally protected speech.

After changes, Arizona passed their cyberbullying law last year. If New York and Illinois review their proposals and figure out a way to balance online harassment deterrence with First Amendment rights, expect both states to have a new cyberbullying law in the coming year.

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