The Law’s Response To Cyberbullying
By Avni Mehta
Walking down memory lane to those carefree childhood days, most people remember the classroom bully — that boy or girl who had an inexplicable ability to instill fear in others and cause emotional or physical pain. Most people remember avoiding the bully at school and counting down the minutes and the seconds until the school day ended so that they could escape and go home. Home might have been a safe place in the past. Unfortunately, that may no longer be the case for today’s children.
With the advent of cyberbullying — a phenomenon that takes bullying beyond the classroom setting and into private homes — children are finding it harder to escape the negative effects of bullying. The executive director of the Center for Safe and Responsible Internet Use, Nancy Willard, defines cyberbullying as “cruel[ty] to others by sending or posting harmful material or engaging in other forms of social aggression using the Internet or other digital technologies,” including, but not limited to, cell phones.1 In other words, cyberbullying is a means for carrying out, at home, many of the bullying techniques utilized in schools. It falls under the purview of bullying but has its own, potentially more significant, impact on victims. As teens spend more time online and are able to access the Internet from handheld devices in almost any location where a signal is available, electronic harassment has become increasingly more prevalent. In fact, according to a Pew Internet and American Life study conducted in 2007, one-third of teenagers reported online harassment.2 Beyond that, 43 percent of teens, according to the National Crime Prevention Council, have been victims of cyberbullying but have been too embarrassed to report the incidents to parents or authorities.3
When society hears about cyberbullying, a natural reaction is to impulsively condemn the cyberbully and sympathize with the target of the cyberbullying. Take the case of 13-year-old Megan Meier, for example. As Megan entered eighth grade, she was ready to make a fresh start and decided to leave behind many aspects of her old life, including her friendship with Sarah Drew, a girl that lived down the street.4 Megan entered the eighth grade more confident than ever before, having lost 20 pounds and made the school’s volleyball team. She had even begun a new relationship with a “cute” boy, who was new in town, “Josh Evans.”5 Megan and “Josh” had met online through MySpace, where “Josh” requested to add Megan as a friend over the summer before eighth grade. “Josh” was 16 and had earned Megan’s trust and confidence. Megan spent hours talking to “Josh” online, under the watchful eye of her mother, who kept the password to Megan’s MySpace account. Things were going well.
Then, in October 2006, “Josh” started changing. Megan began receiving hurtful messages from “Josh,” like the following: “I don’t know if I want to be friends with you anymore because I’ve heard that you are not very nice to your friends.”6 On October 17, 2006, just three weeks before her 14th birthday, Megan received a final message from him: “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.”7 Megan responded: “You’re the kind of boy a girl would kill herself over.” Twenty minutes later, Megan’s mother found Megan’s body hanging in her closet. True to her final message, Megan had taken her own life at the tender age of 13.
At the insistence of Megan’s parents, the police began an investigation. To the Meiers’ horror, Lori Drew, a family friend and the mother of Megan’s estranged friend Sarah Drew, was found responsible for creating the fake “Josh Evans” MySpace account and sending the messages that led to Megan’s suicide. Though law enforcement officers caught Lori Drew, local authorities could not find any applicable state law under which they could prosecute her. The U.S. Attorney’s Office in Los Angeles decided to take on the case and chose to prosecute Drew under the Computer Fraud and Abuse Act (CFAA), charging Drew with violating the MySpace Terms of Service by creating a fictitious MySpace account to gather information to “further a tortuous act, namely intentional infliction of emotional distress” on Megan.8 Drew was charged with four counts — “one count for conspiracy in violation of 18 U.S.C. § 371, and three counts of accessing a protected computer to obtain information, aiding and abetting and causing an act to be done in violation of 18 U.S.C. § 1030.”9
On Nov. 26, 2008, a jury found Drew guilty on the three misdemeanor counts and not guilty on the felony count of conspiracy. However, Drew moved for acquittal. In August 2009, Judge George Wu of the U.S. District Court for the Central District of California issued an opinion framing the issue as “whether an intentional breach of an Internet website’s terms of service, without more, is sufficient to constitute a misdemeanor violation of the CFAA.” The court granted the motion and acquitted Drew of all charges.10
As Megan’s case reflects, cyberbullying is becoming a major issue affecting children’s lives. Over the past seven years, many cyberbullying cases have landed in court. Some lawyers have tried using broader interpretations of statutes such as the CFAA for prosecution; others have used state laws prohibiting bullying or harassment and stalking laws to make their cases.11 Additionally, in response to cyberbullying, many states have adopted laws governing bullying and/or cyberbullying. These laws serve a dual purpose in countering cyberbullying: they prohibit cyberbullying and/or they target bullying as a whole and include terms like “bullying” and “harassment,” which include cyberbullying by definition.12
In June 2008, Missouri passed a state law against cyber harassment (SB 818), which makes harassment via computers, text messages and other electronic devices illegal. Additionally, SB 818 makes harassment of minors by adults aged 21 and over a felony offense.13 Since then, at least one case has been tried under the new state law. In August 2009, St. Charles County Prosecuting Attorney Jack Banas prosecuted 40-year-old Elizabeth Thrasher for cyberbullying after she “posted a teenage girl’s contact information under Craigslist’s ‘Casual Encounters’ personal ads.”14 This was one of the first cases to be prosecuted under new state cyberbullying laws. She was ultimately found not guilty by a jury in early 2011.
According to the Cyberbullying Research Center, which provides state-by-state legal information, among the other 44 states (and Washington, D.C.) that have adopted laws against bullying, six states include the word “cyberbullying” in their laws — Arizona, Kansas, Massachusetts, Nevada, New Hampshire, and Oregon. Thirty-one states include reference to electronic harassment in their laws. Seven states — Idaho, Kentucky, Missouri, Nevada, North Carolina, Tennessee, and Wisconsin — have a criminal sanction for bullying behavior. Thirty-nine states have school sanctions for bullying and 44 states (and Washington, D.C.) require school policies addressing bullying. Three states — Hawaii, Montana, and South Dakota — have no specific law governing bullying, according to the Cyberbullying Research Center.15
At the federal level, there is no specific bullying or cyberbullying law in place. However, during both the 111th and 112th Congress, lawmakers introduced legislation. Among the bills introduced in the 111th Congress was H.R. 1966, also known as the “Megan Meier Cyberbullying Prevention Act.” If ultimately enacted, the language of this legislation would amend Chapter 41 of Title 18, U.S. Code, to include § 881 on cyberbullying, as follows: “Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.”16
While, to some, such laws seem necessary and crucial to prevent cyberbullying, UCLA professor Eugene Volokh begs to differ. Volokh explained that legislation like the Megan Meier Cyberbullying Prevention Act is too broad and unconstitutionally vague. In a telephone interview, Volokh stated, “In the absence of any clear definition of what cyberbullying is, the proposals [to modify existing criminal laws] end up being too broad and unconstitutionally broad.” In the process of creating duplicitous laws and overly broad laws in response to teenage suicides, society may be treading upon some of the basic rights enumerated in the U.S. Constitution. As Volokh explained, lawmakers do not even have a working definition of what kinds of behavior constitute cyberbullying. Yet, criminal laws are currently being considered for implementation on the basis of half-baked definitions. Without clearly defining the behavior that cyberbullying law is meant to govern, there is too much room for misapplication of cyberbullying law. For example, Volokh explained that, under some of the cyberbullying laws currently being considered (namely the Megan Meier legislation), the writers of rude or critical remarks about someone on a public website could be deemed criminally liable for their comments. However, Volokh stated that “there should be no criminal law against saying rude things to people, even rude things in the public media. Rudeness is not a crime; posting insulting things about people is not a crime.” It is well within a person’s First Amendment rights to be rude and harsh, he said.
Yet, despite the objections of many lawyers, law professors, and policymakers, state and federal legislators continually bring up new laws and legislation to deal with cyberbullying. Perhaps the reason behind this is that, in the absence of federal legislation governing cyberbullying, bullying, and harassment, prosecutors have used broader interpretations of existing federal laws or have relied heavily on state laws to bring cases of cyberbullying to criminal court. For example, in the Megan Meier case, the U.S. Attorney in Los Angeles used a broad interpretation of the Computer Fraud and Abuse Act, which proved to be ineffective and unrelated to the actual issue presented in the case.
In cases in which there was no legal foundation for the prosecution of cyberbullying, states responded by creating laws to prevent future bullying, including cyberbullying. For example, in the recent Phoebe Prince case, Massachusetts sped up the process to implement an anti-bullying law, which was passed on May 3, 2010. This case, in which cyberbullying was not the primary form of bullying technique used, has implications for both bullying and cyberbullying and is important to identifying the areas where the law applies to cyberbullying cases.
Phoebe Prince’s story began when she entered school in South Hadley, Mass., in fall 2009. Phoebe was 15 years old and had just moved to the United States from County Clare, Ireland. Despite only being a freshman, Phoebe quickly captured the attention of several senior boys at her high school. First, she gained the interest of Sean, a senior who soon reunited with his ex-girlfriend Kayla. Then, she dated and had sexual relations with a senior named Austin, who later returned to his ex-girlfriend Flannery. Having dated both boys, Phoebe soon became the target of persistent bullying from Austin, Sean, Kayla, and Flannery, along with their group of friends. On Jan. 14, 2010, Phoebe suffered an entire day of bullying, harassment, and taunting at school. After school, a student threw a can at her from a passing car as she walked home. This would be the final time Phoebe was harassed by her classmates. Phoebe went home and hanged herself in the stairwell leading to the second floor of the family apartment. Her 12-year-old sister discovered her body. Even after Phoebe’s death, many of her peers posted crude comments on her Facebook memorial page, which were later removed.
Based on this story, District Attorney Elizabeth Scheibel “said Prince was subjected to a ‘nearly three-month campaign of verbally assaultive behavior and threats of physical harm,’ far more intense and concerted than ordinary teenage bullying.”17 On this basis, Scheibel decided to prosecute several students, including Sean, Kayla, and Flannery, for bullying Phoebe Prince. She charged two students, Sean and Austin, with statutory rape.18 The formal charges included statutory rape, violation of civil rights with bodily injury, criminal harassment, and stalking.19 As this article heads to press, the authorities have announced plea agreements with all of the teenage defendants, with sentences of probation and community service only. Press reports indicated that the Prince family was not interested in seeing the teenagers go to jail, but rather that they admit wrongdoing and accept responsibility.20
The First Amendment and The Tinker Standard
The Prince case has forced many schools, including South Hadley High School, to reconsider their policies on bullying and harassment and has pushed many schools to implement bullying prevention programs. Additionally, cases like this one have put increasing amounts of pressure on schools to take disciplinary measures against bullies and cyberbullies. As schools begin taking action against bullies, however, their actions raise First Amendment concerns, including the extent to which a school can impinge on a student’s freedom of speech. Some students disciplined for cyberbullying have fought back, suing school districts for violating their constitutional rights.
For example, in J.C. v. Beverly Hills Unified School District,21 which was heard in the U.S. District Court for the Central District of California, student J.C.’s father, Evan S. Cohen, sued the school district after his eighth-grade daughter was suspended for cyberbullying. In this case, J.C. had “videotaped friends at a café, egging them on as they laughed and made mean-spirited, sexual comments about another eighth-grade girl, C.C., calling her ‘ugly,’ ‘spoiled,’ a ‘brat’ and a ‘slut.’”22 J.C. then posted the video on YouTube. The next day, the school suspended her for two days. When the case was heard last November, Judge Stephen V. Wilson found that, while the YouTube video had been shared with students at school and student C.C. had been humiliated by it, the real test was whether the video had caused a “substantial disruption” at school, as required by the Tinker standard of 1969.23 The Tinker standard is a legal test that comes from Supreme Court case Tinker v. Des Moines Independent Community School District,24 where students were suspended for wearing black armbands to protest the Vietnam War. As Judge Wilson reiterated in his decision, in Tinker, the Supreme Court ruled that “a school may regulate a student’s speech or expression if such speech causes or is reasonably likely to cause a ‘material and substantial’ disruption to school activities or to the work of the school.”25
Courts have relied on Tinker to guide most decisions regarding whether a school has the right to regulate student speech. Additionally, three other Supreme Court cases have influenced the extent to which schools are legally permitted to regulate student speech: Hazelwood School District v. Kuhlmeier,26 Bethel School District v. Fraser,27 and Morse v. Frederick.28 As schools decide how to address cyberbullying, First Amendment concerns may limit the schools’ ability to address off-campus speech, which is a large component of cyberbullying. Thus, addressing the First Amendment concerns, which arise from some of the state cyberbullying laws and the limits of school jurisdiction over off-campus speech, is vital to creating a clearer legal framework for schools, lawyers, and students.
Each state has taken its own approach in implementing a cyberbullying law, but most states have included stipulations requiring schools to implement anti-bullying policies and bullying prevention programs. However, according to the Anti-Defamation League, although 45 states have bullying statutes, “fewer than half offer guidance about whether schools may intervene in bullying involving ‘electronic communication,’ which almost always occurs outside of school and most severely on weekends, when children have more free time to socialize online.”29
At least one state, Arkansas, has provided detailed guidelines for schools as to what constitutes substantial disruption for the application of the Tinker standard. In Public Act 115 of the Arkansas Legislature (“An Act to Define Bullying”), “substantial disruption means without limitation that any one or more of the following occur as a result of the bullying: necessary cessation of instruction or educational activities; inability of students or educational staff to focus on learning or function as an educational unit because of a hostile environment; severe or repetitive disciplinary measures are needed in the classroom or during educational activities; or exhibition of other behaviors by students or educational staff that substantially interfere with the learning environment.”30
According to a New York Times article, “[a] few states say that school conduct codes must explicitly prohibit off-campus cyberbullying; others imply it; still others explicitly exclude it. Some states say that local districts should develop cyberbullying prevention programs but the states did not address the question of discipline.”31 In other states, with the burden of enforcement being placed on schools, First Amendment concerns come into play. Additionally, school districts become legally liable for both action and inaction against bullying. In this situation, many schools have had a difficult time determining what type of action to take, if any, against bullies and cyberbullies. Thus, it becomes clear that, while there is a need to address cyberbullying as it happens both on and off campus, schools may not be equipped with the appropriate tools to discipline what can occur off campus, namely cyberbullying.
However, rather than instituting new, duplicative laws, some say state legislatures can and should focus on finding ways of applying existing law to extreme cases of cyberbullying. As George Washington University law professor Paul Butler stated in an interview for this article, “We should have a sense of history and understand that our criminal laws are usually broad and able to be adapted to change in technology and change in social norms. Technology is always going to evolve; there will always be a new way to commit crimes, but that doesn’t mean that we need to come up with a new criminal law for every technological development. We should be assured that our criminal laws are adaptable to new situations. They were written to be adaptable to new contexts.” Pointing to the example of Rutgers University in its response to the September 2010 student suicide there, Butler explained that there needs to be a national- and local-level conversation about respecting the dignity of human beings. An education and awareness campaign geared toward stopping hurtful and harmful activities will be more effective than wasting resources trying to criminalize behaviors that may or may not be within a person’s constitutional rights and that may already be covered by other laws.
The current state of affairs regarding cyberbullying introduces challenges that need resolution. As cyberbullying impacts the lives of more and more American children, it becomes an issue that concerns a large number of citizens and carries a large amount of emotional baggage with it. As a result, it is becoming increasingly difficult to address cyberbullying without being swayed by emotions on both sides of the issue or treading on foundational freedoms. In order to avoid violations of constitutional rights and unnecessary trials, states and the federal government should look for common sense approaches to dealing with behaviors that involve all forms of bullying.
1. NANCY WILLARD, CENTER FOR SAFE AND RESPONSIBLE USE OF THE INTERNET, CYBERBULLYING LEGISLATION AND SCHOOL POLICIES: WHERE ARE THE BOUNDARIES OF THE ‘SCHOOLHOUSE GATE’ IN THE NEW VIRTUAL WORLD? 1 (2007).
2. Alison Virginia King, Constitutionality of Cyberbullying Laws: Keeping the Online Playground Safe for Both Teens and Free Speech, 63 VAND. L. REV. 845 (2010).
4. Kristopher Accardi, Is Violating an Internet Service Provider’s Terms of Service an Example of Computer Fraud and Abuse?: An Analytical Look at the Computer Fraud and Abuse Act, Lori Drew’s Conviction and Cyberbullying, 37 W. ST. U. L. REV. 67 (2009). 5. Id.
11. King, supra note 2.
13. Internet Law — Missouri Governor Signs Cyberbullying Bill Into Law, July 14, 2008, available at http://www.ibls.com/internet_law_news_portal_view.aspx?id=2095&s=latestnews.
14. Angela Riley, Felony Cyberbullying Charge in Missouri Tests New Law, MO. LAW. WKLY, Aug. 18, 2009.
15. Sameer Hinduja & Justin W. Patchin, State Cyberbullying Laws: A Brief Review of Cyberbullying Laws and Policies Across America, July 2010 (updated April 2011), available at http://www.cyberbullying.us/Bullying_and_Cyberbullying_Laws.pdf.
16. H.R. 1966, 111th Cong. (1st Sess. 2009), available at http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.1966.
17. Peter Schworm, Report Says Bullying Victim Had Mental Health Problems, BOSTON GLOBE, July 22, 2010.
18. Emily Bazelon, What Really Happened to Phoebe Prince? The Untold Story of Her Suicide and the Role of the Kids Who Have Been Criminally Charged for It, SLATE, July 20, 2010.
20. Peter Schworm, ‘Blind Eye to Bullying Over,’ DA Says: Defends Modest Sentences in Phoebe Prince Suicide Case, BOSTON GLOBE, May 6, 2011.
21. 711 F. Supp. 2d 1094 (C.D. Cal. 2010).
22. Jan Hoffman, Online Bullies Pull Schools Into the Fray, N.Y. TIMES, June 27, 2010.
24. 393 U.S. 503 (1969).
25. 711 F. Supp. 2d 1094, 1100 (C.D. Cal. 2010).
26. 484 U.S. 260 (1988).
27. 478 U.S. 675 (1986).
28. 551 U.S. 393 (2007); King, supra note 2.
29. Jan Hoffman, How Should Schools Handle Cyberbullying?, N.Y. TIMES. June 27, 2010.
30. SAMEER HINDUJA & JUSTIN W. PATCHIN, BULLYING BEYOND THE SCHOOLYARD: PREVENTING AND RESPONDING TO CYBERBULLYING 117 (2009).
31. Hoffman, supra note 29. ?