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Sticks and Stones Can Break Your Bones–and Words Can Land You in Jail

playground Why treat bullying online any different than if it occurred on the playground? That was one of the thoughts expressed at yesterday’s Congressional hearing on cyberbullying and online safety.


Rep. Linda Sánchez (D-CA) has introduced the “Megan Meier Cyber Bullying Prevention Act” (H.R. 1966). The bill imposes criminal penalties on anyone who transmits in interstate or foreign commerce a communication “intended to coerce, intimidate, harass, or cause substantial emotional distress to another person, using electronic means to support severe, repeated, and hostile behavior.”


While everyone expressed disdain for bullying, there was an even stronger concern that the bill would criminalize protected speech and violate first amendment rights.


Ranking Member Louie Gohmert (R-TX) was concerned about the inherent subjectivity and vagueness of what it means to “intimidate” or “harass.” He said that speech is presumed protected, except for three narrow carveouts: 1) true threats; 2) fighting words; and 3) obscenity. He also said that this should be a state issue, not a federal crime.


Professor Robert O’Neil suggested that any new law criminalizing online harassment should incorporate the following elements: 1) intent; 2) a requirement that a particular person was targeted; and 3) evidence of harm and/or physical impact.


The “kicker” of the day came from John Palfrey of Harvard Law School — repeal the CDA’s Section 230 immunity for online companies. He asserted that there are instances where bad actors hide behind the statutory immunity who would otherwise be culpable under the common law. He believes that the good guys that have taken measures to protect user privacy and security (think MySpace, Yahoo, AOL, and Facebook) would have nothing to fear from not having statutory immunity. And while he acknowledged the positive impact on innovation that Section 230 has had for the online industry, he minimizes the legal costs that small websites would face if liable for the actions of their users. There’s no doubt that many sites would simply cease to exist for fear of being sued.


Words can be hurtful and damaging, particularly if between children. There are ways short of imprisonment to combat bullying and intimidation. The better policy approach is to educate parents and kids and empower schools to punish students that bully.  But if there are true threats and illegal harassment, then it’s time to get law enforcement involved.


-Braden Cox