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Foreword: Decembers topic will give you the opportunity to consider the purposes of
punishment in the criminal legal system, and also to examine the challenges students
have faced in light of the explosion of social media. This topic is timely, given the
national spotlight on cyberbullying following the suicides of many young victims.
Cyberbullying is a problem, but is involving the criminal legal system an appropriate
solution? The strategy guide will provide you with the legal foundation that you need to
structure your arguments, and begin to think about whether the solution to cyberbullying
lies in schools, at home, in the civil legal system, or in criminalization.
Direct questions on the topic to Michelle@finalistfiles.com or the Public Forum
Debate Facebook page. Good luck and enjoy debating!
Michelle Schmit
All rights reserved. No part of this work may be reproduced or transmitted in any form
or by any means, electronic or mechanical, including photocopying, recording, or by an
information storage or retrieval system, without the prior written permission of the
copyright owner and the publisher.
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Pro Strategy
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You will see in the Con argumentation the position that criminalization does not solve the
problem, because it will only apply in the most egregious of cases. But that is exactly the point.
No one is suggesting that the criminalization of cyberbullying will solve the problem in its
entirety. It is a step, to be reserved for those cases which shock the consciousness of our
communities. Retribution is only appropriate when the persons behavior causes substantial
harm. Effective deterrence only requires the prosecution of the most egregious violators (an
example would be made of the relatively few individuals who would be prosecuted).
Rehabilitation through juvenile detention is a drastic intervention which should only be
employed when attempts made by school and family have failed. And incapacitation is only
justified when an offender presents a threat to other persons. Society will benefit from
criminalizing the intentional use of extreme and outrageous conduct. Such conduct is rare, but to
the extent that it results in intolerable wrongs, it is worth of criminal punishment.5 The solution
to cyberbullying is inarguably multifaceted. But one every other facet fails, there must be a last
resort. When educational and other nonlegal measures fail to prevent cyberbullying, legal
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Con Strategy
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The bottom line is well stated by Palfrey of Harvard Law: The behavior that we would
like to curtail, most commonly, young people saying or doing harmful things to other young
people online, is part of typical adolescent behavior to some extent. In many cases, what
concerns us is behavior that we want to stop, but not to criminalize; the image of filling our
prisons with teenagers and young adults who have been teasing one another online is plainly
unattractive.17
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Evidence
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Cyberbullying
Although the Internet is a relatively new medium, it is being used for an old purpose
harassment of others. Children experiment online with different personas, and may be nastier in
the Internets anonymous atmosphere than they would be in person. In addition, targeted
mockery can be far more painful when it is public, permanent, and written than when muttered in
passing in a school hallway. Creating defamatory or sexually explicit depictions of students and
school personnel on websites are two types of student Internet speech that may constitute
cyberbullying.51
Cyberbullying generally refers to harassment occurring among school-aged children through the
use of the Internet.52 Recent incidents of teen suicides appear to illustrate the harm that may be
caused by cyberbullying. According to media accounts, classmates sent Vermont teenager Ryan
Patrick Halligan several instant messages questioning his sexuality. In addition, the teen was
threatened, taunted, and incessantly insulted online. Ultimately, Halligan committed suicide.53
Responding in part to the suicide, Vermonts state legislature passed an anti-cyberbullying law
in 2004.54 The statute requires schools to create disciplinary policies encompassing both on- and
off-campus (limited to school-sponsored activities) bullying among school children.55 The
statute provides a broad definition of bullying that may be interpreted to include Internet
misbehavior.
Several other states have passed legislation requiring or authorizing school districts to adopt
cyberbullying policies. For example, in Arkansas, cyberbullying was added to the schools antibullying policies and included in provisions for school officials to punish students for some offcampus activities if the electronic act is directed specifically at students or school personnel and
is maliciously intended for the purpose of disrupting school and has a high likelihood of
succeeding in that purpose.56 However, it should be noted that some of these policies are
limited in their application.57 For example, in Washington, the school district harassment
prevention policies are applicable only to actions that take place while on school grounds and
during the day. In other words, some of these policies would not cover bullies from other
districts or other states. In addition, adults who harass or cyberbully minors would not be
covered in most instances.
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Research indicates that as many as 75 percent of teens have been bullied online, but only one in
10 have reported the problem to parents or other adults, a new study shows.
The study, published in the September issue of The Journal of School Health, is the latest to
sound the alarm about so-called cyber-bullying, which can occur on social networking sites and
in e-mail and text messages. Sometimes cyber-bullying involves taunting or threatening e-mail
or text messages or putting embarrassing pictures or personal attacks on teen networking sites
like MySpace or Facebook.
The Internet is not functioning as a separate environment but is connected with the social lives
of kids in school, said lead study author Jaana Juvonen, a professor of psychology and chair of
the developmental psychology program at the University of California, Los Angeles, in a press
release. Bullying on the Internet looks similar to what kids do face-to-face in school.
The U.C.L.A. study surveyed 1,454 teens between the ages of 12 and 17, who were recruited
through an unidentified teen Web site from August through October 2005. Forty-one percent of
the teenagers surveyed reported between one and three online bullying incidents over the course
of a year, 13 percent reported four to six incidents, and 19 percent reported seven or more
incidents.
Despite the prevalence of cyber-bullying, many teens dont realize how common it is and often
believe it is only happening to them, Dr. Juvonen said.
When kids start thinking, Its just happening to me, they likely blame themselves, and once
they do that, it increases their risk of depression, Dr. Juvonen said. Kids dont know how
common cyber-bullying is, even among their best friends. Cyber-bullying is not a plight of a few
problematic children but a shared experience.
Teens in the survey said they didnt tell their parents about the problems for a variety of reasons.
Half of the teens who were cyber-bullied said they just need to learn to deal with it. Nearly
one-third said they worried parents might restrict Internet access, a fear more commonly
expressed among girls than boys. One-third of 12- to 14-year-olds said they didnt tell an adult
about the bullying out of fear that they could get into trouble with their parents.
Many parents do not understand how vital the Internet is to their social lives, Dr. Juvonen said.
Parents can take detrimental action with good intentions, such as trying to protect their children
by not letting them use the Internet at all. That is not likely to help parent-teen relationships or
the social lives of their children.
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Although most people view cyber-bullying as anonymous, nearly three out of four of the bullied
teens in the survey said they knew or were pretty sure they knew who was doing the bullying.
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I. Introduction
The Internet is a blessing and a curse. n1 Along with the manifold benefits the Internet provides electronic research, instantaneous news, social networking, online shopping, to name a few comes a host of dangers: online harassment and cyberbullying, hacking, voyeurism, identity
theft, phishing, and perhaps still more perils that have yet to appear. n2 The Internet creates a
virtual world that can result in very real consequences for people's lives. This creates a challenge
for parents, schools, and policymakers attempting to keep pace with rapidly developing
technologies and to provide adequate protections for children. The even greater challenge,
however, is to balance these vital protections with the equally compelling freedoms of speech,
expression, and thought. n3
The heart-wrenching suicide of Missouri teenager Megan Meir in 2006 directed national
attention to the devastating effects of online harassment and cyberbullying. n4 Megan was a
thirteen-year-old middle-school student who engaged in an online relationship with a purported
fellow teen, Josh Evans, through the popular social- [*847] networking website
MySpace. n5 What began as a friendly and flirtatious exchange of messages escalated into a
barrage of cruel and insulting attacks that drove Megan, who suffered from clinical depression,
to take her own life. n6 Megan's mother found her hanging in her closet by her neck from a belt
the day of Josh's final posting: "The world would be a better place without you."
In a tragic twist of events following Megan's death, her parents discovered that Josh Evans never
existed. n7 Instead they found that Lori Drew, an adult neighbor and mother of one of Megan's
female friends, created the profile in order to learn Megan's opinion of her daughter. n8 Sadly,
the hoax escalated far beyond that initial intent.
Megan's story is not unusual; sadly, cyberbullying occurs in many forms and contexts throughout
the country. n9 The problem primarily impacts youth, arguably the subset of our population most
deserving of legislative protection. n10 According to the National Crime Prevention Counsel, 43
percent of teens have been victims of cyberbullying, but many are too ashamed or embarrassed
to report the incidents to their parents or other authorities. n11
The breadth and severity of cyberbullying demands a response from communities, parents,
schools, and legislatures. However, regulation of online speech treads on delicate constitutional
territory. [*848] In our efforts to make the Internet safer, we must be cautious not to erode the
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Cyberbullying shares many features with traditional forms of harassment, including a clear intent
to harm, and the hostile use of power within the context of a relationship. But it is also different
on a number of dimensions and is more insidious.
It's hard for victims of online harassment to find a safe haven, since they can be tracked and
bombarded constantly.
First, would-be perpetrators can harass victims via email messages, texts, chat rooms, and other
media that can operate on a 24/7 cycle. Perpetrators can continue to attack their targets even after
their actual physical contact ends. This makes it hard for victims to find a safe haven. Walking
away from the perpetrator, avoiding contact, or finding a protective ally (which often helps in the
context of traditional bullying) no longer does the trick.
Second, technology also offers a powerful shield of anonymity in contrast to more traditional
forms of harassment in which the bullys behavior can (at least some of the time) be monitored,
traced and addressed.
A related issue involves the remote nature of virtual attacks. Perpetrators can wield their power
from a distance, which allows them to avoid facing the consequences of their actions. This
remove may make it even easier for bullies (who already tend to exhibit low levels of empathy)
to ignore the impact of their actions on the intended target. Finally, the potential audience for
cyberbullying is limitless. Traditional forms of bullying typically occur in front of a handful of
witnesses, but cyberbullying can be witnessed by hundreds, thousands, or even more online
viewers.
Whether there should be specific legislation against cyberbullying (in addition to traditional
bullying) is a tricky one. After all, most instances of cyberbullying occur off school grounds.
What role should schools have in enforcing rules against out-of-school behavior?
[]
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Words hurt! Recent cyber bulling news stories show that a word can be as painful as a punch. 1
Unfortunately, the law redresses those who suffer injury from harmful speech through a series of
innocuous remedies, including financial remuneration or retribution through minimal criminal
penalties. 2 However, the law does not criminally sanction those who intentionally inflict verbal
emotional harm to the same degree as those who intentionally inflict physical harm. 3 In other
words, the legislature and the courts are have not yet elevated an actor's intentional inflictions of
verbal harm to the same jurisprudential echelon as intentional inflictions of physical force. 4
Consider the first federal cyber bullying case of Ms. Lori Drew. 5 Ms. Drew, a forty-nine-yearold woman, was charged for using a fake "MySpace" account to torment a thirteen-year-old girl.
6
The girl committed suicide as a result of the hoax. 7 Initially, Ms. Drew was found guilty of
three counts of unauthorized access to a web site--misdemeanors that carry minimal punishment.
8
The verdict was subsequently overturned by a federal judge. 9 The conduct that Ms. Drew was
charged with was one that "millions of people" engaged in, and the judge was reluctant to
establish a precedent on which any person may be convicted for a mere violation of MySpace's
terms of service. 10
Society does not impose criminal sanctions for the intentional infliction of severe mental
anguish; instead, such acts are punished civilly as the intentional infliction of emotional distress
(IIED). Interestingly, IIED is the only intentional tort involving harm to a person that does not
share a criminal counterpart. 11 Every state has imposed criminal penalties for the intentional
torts of assault, battery, and false imprisonment. 12 It appears that the intentional infliction of
emotional distress is accorded a lesser punitive status than the choice to threaten or use physical
force against another.
The same elements are used to prove both IIED and the criminal charges for assault, battery and
false imprisonment. IIED, like assault and false imprisonment, is largely a mental anguish
offense. 13 A prima facie case for IIED requires, among other elements, proof that the plaintiff
suffered severe emotional harm. 14 Similarly, assault and false imprisonment require proof that a
victim suffered a similar type of cognitive distress, such as a fear of harm or loss of liberty. 15 In
contrast, battery requires proof of physical harm. 16
At first blush, one might argue that IIED, which is a harm of severe emotional distress, does not
share the requirement that the plaintiff suffered some physical pain. However, according to
recent biological and neurochemical studies, one can experience physical pain in response to a
tone or a particular set of harsh words. 17 If one accepts these findings as true, the physical harm
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I am pleased to have been asked to testify on H.R. 1966 (the Megan Meier Cyberbullying
Prevention Act) on behalf of the Cato Institute, where I serve as an Adjunct Scholar.
I approach the problem presented by this legislation not from the vantage point of a legal scholar,
however. The Subcommittee, Im certain, has ample access to members of the professoriate as
well as to scholars at the various think tanks with which the Nation in general and Washington in
particular are blessed. Indeed, I appear today on behalf of the libertarian Cato Institute, which
over the years has presented cogent scholarly studies of many pieces of legislation that have
posed threats to American liberty. But I believe that Cato has asked me to appear, and the
Subcommittee has invited my testimony, because I have considerable real-world experience as a
criminal defense and civil liberties trial lawyer and author who having never served in
government office has a particular view of the role that certain types of federal legislation play
in the day-to-day life of the Republic and in the lives of its citizens.
I have seen, in particular, the ways in which unwise legislation legislation often born of good
intentions has adversely affected individuals investigated for or accused of federal crimes.
Many of these individuals, including (but hardly limited to) clients of mine, have wondered how
they could have been investigated, prosecuted, convicted and even sentenced to prison for
engaging in conduct that a reasonable person would not have believed to lie within the ambit of
the criminal law. Sometimes such a persons actions are within the range of entirely civil and
proper, while at other times they approach the edges of the socially acceptable. But unless ones
conduct is clearly over the legal line, shock is a perfectly understandable reaction to a criminal
charge.
This Subcommittee, as well as other subcommittees and committees of the Congress, has heard
much testimony in recent years objecting to proposed legislation on grounds of federalism the
notion that the federal government has been unduly encroaching on areas of life and commerce
that in theory were supposed to have been regulated by the states. One could pose a cogent
critique of the proposed Cyberbullying legislation on such grounds, in my view, but this is not
my purpose today. One could also point out, as other scholars and organizations have, that
criminal legislation has been imposed on areas of American life that should not be subject to
criminal law and criminal sanctions a phenomenon known as overcriminalization and that
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Thats what a proposed federal statute -- the Megan Meier Cyberbullying Prevention Act, HR
6123, introduced two weeks ago by Reps. Linda Sanchez (D-CA) and Kenny Hulshof (R-MO) -would create:
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 [including email, instant messaging, blogs, websites, telephones, and text messages] to
support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not
more than two years, or both.
Wow. So if I harshly criticize Reps. Sanchez and Hulshof (hostile) at least twice (repeated)
in a way that a jury finds severe, whatever that exactly means, and if I do that with the intent
to ... cause substantial emotional distress, I could go to prison for up to two years. My criticism
could be perfectly accurate. It could be an expression of my opinion, including on political,
social, or religious issues. The desire to cause substantial emotional distress could be prompted
by the targets reprehensible actions or political views, and could be coupled with a genuine
attempt to persuade the public. Doesnt matter: My actions would be a crime.
This is clearly unconstitutional. In Hustler v. Falwell, the Supreme Court held that even civil
liability for outrageous (not just severe) behavior that recklessly, knowingly, or purposefully
causes severe emotional distress (not just substantial emotional distress) violates the First
Amendment when its about a public figure and on a matter of public concern. Many, though not
all, lower courts have held the same whenever the statement is on a matter of public concern,
even about a private figure.
I would go further and reject the emotional distress tort altogether whenever its premised on the
content of speech that falls outside an existing exception, i.e., speech that isnt threatening,
factually false, or the like. But in any case even the specific holding in Hustler is enough to make
the statute facially overbroad. (Given the Hustler reasoning, the requirement that the speech be
electronic, repeated, or intended to cause substantial distress doesnt adequately narrow the law:
"[I]n the world of debate about public affairs, many things done with motives that are less than
admirable are protected by the First Amendment.... [E]ven when a speaker or writer is motivated
by hatred or ill will his expression was protected by the First Amendment....")
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If you were walking down the street and saw someone harassing a child, would you just walk by
and look the other way? If that person was telling the child the world would be better off if they
just killed themselves, would you ignore it?
This is what is happening on the internet except it is more painful, and can be more abusive
because of the faceless anonymity the web provides. Bullies are using technology in ways we
could not have imagined only years ago, and studies show that outdated and erroneous beliefs
that bullying is "harmless" downplay its true seriousness.
Laws criminalize similar behavior when it takes place in person, but not online. In fact, we have
laws criminalizing stalking, sexual harassment, identity theft and more when it takes place in
person and online. All of these actions have consequences. But there is one serious online
offense that has no penalty -- cyberbullying. Do we not think it is as serious because it takes
place in cyberspace and not face to face?
Missouri already has a law that criminalizes cyberbullying, but cyberbullying isn't just happening
in one state. It's happening everywhere and it follows kids home -- occurring at any hour of the
day or night. Cyberbullying is hurtful enough and affecting kids enough that its victims have
turned to suicide or violence just to make it stop. Should we just ignore it? Pass it off as simple
child's play?
When so-called child's play turns hostile and a child becomes a victim, it is time to act. Victims
of cyberbullying do not choose to participate. Rather than build character, bullying can cause
children to become anxious, fearful, unhappy, and even cause them to be physically sick. A
young person exposed to repeated, severe and hostile bullying online is deserving of protections
because bullying puts them at risk for depression and suicide. According to a study by the United
States Secret Service, being bullied is a risk factor for perpetrators of school violence, such as the
kind that was unleashed with tragic results at Columbine High School in Colorado.
When so-called free speech leads to bullies having free-reign to threaten kids, it is time to act.
The Supreme Court recognizes that in some instances words can be harmful. For example, you
cannot falsely yell "FIRE" in a crowded theater. If you say it even once you can be held liable.
Yet, you can repeatedly emotionally abuse someone with words, pictures, and false impressions
online and get away scot-free.
The Megan Meier Cyberbullying Prevention Act would criminalize bullying like this when
perpetrators hide behind the emboldening anonymity of the web. Severe online bullying must
have consequences.
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Current Supreme Court jurisprudence already recognizes some reasonable regulation of speech is
consistent with the First Amendment. For example, the Court has found that true threats,
commercial speech, slander, and libel can be reasonably restricted consistent with the
Constitution. Slander and libel law provide for different standards when the injured party is a
public official or private person, and nothing in the Megan Meier Cyberbullying Prevention Act
attempts to override that principle. Instead, the Act would give judges and juries discretion to
recognize the difference between an annoying chain email, a righteously angry political blog
post, or a miffed text to an ex-boyfriend and serious, repeated, hostile communications made
with the intent to harm. I consulted with a variety of experts and law professors in crafting this
bill to preserve our American freedom of speech and protect victims of cyberbullying.
Congress has no interest in censoring speech and it will not do so if it passes this bill. Put simply,
this legislation would be used as a tool for a judge and jury to determine whether there is
significant evidence to prove that a person "cyberbullied" another. That is: did they have the
required intent, did they use electronic means of communication, and was the communication
severe, hostile, and repeated. So -- bloggers, emailers, texters, spiteful exes, and those who have
blogged against this bill have no fear - your words are still protected under the same American
values.
But the internet should not be the last refuge of scoundrels who use its anonymity to abuse,
harass, and bully our children.
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Introduction
It is a scary thought that someone could go to jail for posting a comment on the Internet. If so,
we could not build jails fast enough. 1
Cyberbullying is a growing problem in the United States and elsewhere. It presents schools with
what is at once an old and a new problem: Much of cyberbullying consists of activity that has
been common in schools for decades, probably for centuries (e.g., spreading gossip and rumors,
or harassing other students). What is unique about cyberbullying is that students can use
cyberspace to broadcast gossip and rumors to a much wider audience and take harassment to new
levels.
[]
I. Cyberbullying: A Definition And A Taxonomy
Cyberbullying has garnered a variety of definitions as it has gained notoriety. Since the
definitions in common use tend to be imprecise, our first task is to define the phenomenon we
intend to analyze. The primary problem we see with many of the current de facto definitions is
that they do not differentiate between bullying in an educational context and bullying in a
general societal context. 2 It is necessary to distinguish adult-on-adult bullying from what has
traditionally been considered bullying, i.e., student-on-student aggression that occurs in an
educational context. 3 This is essential because much of what constitutes adult bullying - and
certainly the more serious types of adult bullying - can be addressed with existing criminal law. 4
For our purposes, therefore, we use a definition of cyberbullying that encompasses only that
conduct which occurs in an educational context. We define cyberbullying as the repeated use of
computer or other modern communications technology to engage [*3] in non-physical abuse of
one or more individuals when the actors are all constituents of a common educational context.
Two parts of this definition are significant. The first is the requirement that the contact be
repeated; the second is that the conduct takes place within an educational context.
What do we mean by "educational context"? Does it only encompass students who have not yet
attained a high school diploma? Or should it also encompass college, university, graduate, and
even trade-school students? We could exclude the latter categories because of the premise noted
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Modern criminal law addresses two types of harm: "hard harms" and "soft harms." 318 Hard
harms are the bedrock of criminal law. They involve the infliction of tangible, egregious injuries
to persons or property and, as such, are the oldest and most persistent harms. The cataloging and
proscribing of these harms has been essentially [*80] constant from the Hammurabi's Code
through subsequent enactments such as the Salic Law, the common law of Blackstone's era, and
the statutes of the present day. 319 Every society either must outlaw the infliction of a set of core
physical harms (such as murder, assault, and rape) on individuals or descend into a state of chaos
in which the strong exploit the weak. 320 Every society must also outlaw a collateral set of
physical harms (such as adultery, incest, and child abuse) the infliction of which can erode its
ability to maintain internal order. Since property is valued almost as highly as human life, each
society will also outlaw the infliction of a set of core physical harms to property (such as arson
and other types of damage, theft, and robbery). More evolved societies will also proscribe the
infliction of a collateral set of derivative harms (such as fraud, counterfeiting, vandalism, and
forgery).
In modern societies, especially the United States, we see the extrapolation of many of the core
and collateral hard harms into an almost dizzying array of "crimes" of varying types and degrees
of severity. 321 The extrapolation is attributable to two factors. One is the refinement of penal
philosophies, which have moved beyond the lex talionis (the law of retaliation) and a default
reliance on death as the punishment for criminal conduct; modern penal philosophies and
modern criminal law focus on the nuances of the [*81] harm inflicted and the personal
characteristics of the offender in an attempt to impose a sanction that is idiosyncratic enough to
constitute fair, but not unjust, punishment. 322 The other factor is the politicization of crime; the
use of the penal sanction has been expanded broadly, most notably in the area of regulatory
offenses. 323 While the criminal law of ages past was concerned primarily, if not exclusively,
with retribution, 324 our criminal law is increasingly intended to regulate conduct in a variety of
areas, most of which have little or nothing to do with inflicting the core or collateral harms
outlined above. 325 This brings us to the other category of "harm."
Unlike hard harms, which involve tangible injury to persons or property, soft harms are more
difficult to define. Essentially, they involve the infliction of some type of injury to morality
affectivity, or a systemic concern with the safety of individuals and the integrity of property. 326
Except for non-reputational-injury identity theft, the crimes we examined above are all soft harm
crimes that target injury to affectivity. 327 Kiddie crime encompasses the residuum of affective
harms that have not already been criminalized, probably for good reason.
Criminalizing the infliction of affective harm is a dicey undertaking. As we saw earlier, in
criminalizing the infliction of some soft harms, legislators worked to include elements that would
prevent [*82] the statutes from being held void for vagueness and from predicating criminal
liability on the subjective vagaries of potential victims. 328 While we cannot say that the
criminalization of soft harms has gone as far as it can without violating constitutional principles,
we believe it is wise to be cautious in expanding the use of the criminal sanction to deter the
infliction of soft harms.
To create new crimes that target the so-far unaddressed soft harms that constitute kiddie crime,
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We dont need any new criminal laws. We have more than enough right now -- 4,000 federal
crimes, and many times that number of state crimes. If prosecutors cant find anything to charge
a particular cyberbully with, that bully has not committed a crime. If simply being a jerk was a
criminal offense, we would need many more prisons than the hundreds we already have.
A national conversation about civility would be a more effective tribute to Tyler Clementi than
creating more criminal laws.
Suicide is a tragic response to bullying. It is also a rare response. Of the millions of children who
suffer bullying, few take their own lives. Bullies cause suicides in the same way that a man
causes the suicide of a lover he spurns. The criminal law typically does not hold people
responsible for outcomes that are idiosyncratic or unpredictable.
It is possible to deeply mourn the deaths of Tyler Clementi and Phoebe Prince, and also to
acknowledge that their suicides are evidence of deeper problems than bullying. In Clementi's
case, societal homophobia probably played a big role as well. A straight college kid might be
outraged if his roommate broadcast his sexual activity, but for a closeted gay man, the revelation
of his orientation -- to the whole world -- might be even more disturbing than the public display
of his genitals. Clementi's bullies cruelly exploited that social prejudice, but they did not cause it.
Every tragedy doesnt have to result in somebody going to jail. When people are punished, it
should be for the harm that they intend to do. If a bully crosses the line between freedom of
speech, and invasion of privacy, or harassment, those are the crimes he should be charged with,
as is happening in the cases currently in the news.
If the only tool you have is prison, then every problem looks like a crime. There are better ways
to address cyberbullying, including the public education campaign now underway at Rutgers. A
national conversation about the importance of civility and respect would be a more effective
tribute to Tyler Clementi than trying to prosecute his bullies for manslaughter. They acted
meanly, and possibly even criminally, but not homicidally.
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Cyberbullying is growing and our legal system does not seem ready for it. With legitimate
concerns about the First Amendment on one side, and equally legitimate concerns about the
dangers of such conduct on the other, prosecutors are often left to shoehorn this new wave of
behavior into laws created long before there was an Internet.
While cyberbullying may motivate a victim to commit suicide, it is only in the rarest case that
the bully will be deemed the cause.
Because it is difficult to draft a law that allows the full range of free speech, but also serves to
deter the type of behavior recently in the news, the government is left to use statutes that dont
quite fit, like false statements to Internet service providers or invasion of privacy or civil rights
violations. All of these are weak substitutes for crimes that really involve psychological warfare.
Before the public turns to the judicial system for solutions, there are a few things to consider. It
is really hard to hold someone responsible for another persons suicide. The law assumes that
each individual, including a victim, acts with free will. Thus, while cyberbullying may motivate
a victim to take his or her life, when it comes to convicting someone of a homicide, it is only in
the rarest case that the bully will be deemed to be the cause of the victims death.
Second, the criminal justice system is a poor substitute for what really needs to be done.
Cyberbullying is classic anti-social behavior. Whether people act in a cruel and callous manner is
something we learn early in life. Some schools are now adding curricular lessons on responsible
use of the Internet. Every school should be doing this. We need to teach that online bullying is
just as and possibly more destructive than tormenting a victim in person.
Finally, people should be told how to protect themselves. When terrorism threats against our
nation seemed acute, there were constant messages on how to protect against those threats.
Similar public awareness lessons are needed now. The Internet should come with one big
warning sign "Beware, you are exposing yourself to people who do not have your best interest
in mind."
Dealing with new technology is always a challenge. We should look for answers on all fronts.
Laws may need to be reevaluated to determine whether there should be specific crimes against
cyberharassment, but prohibiting mean words and cybergossip will never pass constitutional
muster. The solution lies in updating both our laws and our behavior.
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The undersigned represent the leading nationally recognized researchers and authorities on the
issue of cyberbullying. Collectively, our purpose in releasing this statement is to express our
professional opinion that Megan Meiers Cyberbullying Prevention Act is a well-meant, but
faulty, vehicle for addressing this serious social problem. In no way is our objection founded
upon a belief that cyberbullying is not significant enough to warrant action. Clearly,
cyberbullying causes serious emotional and academic damage to victims. It is our concern for the
children involved in these behaviors that prompts our objection to the proposed legislation.
Although the proposed legislation has raised free speech concerns, our statement will not address
those concerns. Our disagreement is grounded in our comprehensive understanding of the
phenomenon of electronic aggression and our belief that this legislation will be ineffective in
addressing the fundamental causes and correlates of the problem, and further, may in fact
provide a distraction from the need for better, more effective prevention and intervention efforts.
Cyberbullying is a complex issue that involves education, emotional development, and social
relationships. Although cyberbullying may appear to be as simple as cruel electronic messages,
in fact research has clearly shown it to frequently be part of a pattern of offline and online
harassment. The complexity of these behaviors cannot, unfortunately, be addressed by simply
declaring them illegal. While such legislation is often defended as merely a beginning in
addressing complex behaviors, it may in fact serve to distract stakeholders from investing in the
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Thank you, Mr. Chairman, and members of the Subcommittee on Crime, Terrorism, and
Homeland Security. Through this hearing and your work to advance legislation, you are focusing
public attention on an important issue: the extent to which our young people, and adults, are
harming one another in online spaces. Cyberbullying is a complex and growing problem. Your
leadership is greatly appreciated. Together, there is much that we can do, especially on behalf of
Americas young people, to keep them safer online, from this and other threats to their health and
wellbeing.
Problem.
By virtually all accounts, bullying of young people by their peers online is on the rise. The
magnitude of this increase depends heavily on how one defines the term bullying, exactly.
Results of recent studies vary widely in this respect. The harm caused to young people by their
peers, primarily psychological in nature, can be substantial. Sometimes the harm falls in the
category of teasing that few would say we should regulate; sometimes, the actions are so harmful
in nature that they already violate civil or criminal law. And unfortunately, in the worst cases,
bullying properly falls on the spectrum of physical and sexual abuse. No serious observer
disputes that we are observing a significant increase in bullying online. The topic of
cyberbullying caught the attention of the members of the Internet Safety Technical Task Force
last year, which I chaired. The Task Force brought together representatives of twentynine
leading companies, child advocacy groups, and academics.
We worked together throughout 2008 to analyze the safety issues facing young people online.
We began, as the Attorneys General who commissioned the study requested, looking at the
problems of unwanted contact and access to harmful content online. In the process of researching
the risks to children online, concern about bullying kept arising as a key concern. The final report
of the Task Force included an extensive literature review, drafted by the scholars Danah Boyd
and Andrew Schrock and supported by a blue ribbon academic advisory board. While sexual
predation and unwanted content continue to be substantial concerns which merit our attention,
the dramatic rise in recent years has been the increase in the likelihood that children will suffer
harm online at the hands of their peers.
The data that show a sharp increase in bullying online need to be considered in light of a series
of additional bits of context. First, overwhelmingly, most of the ways in which young people use
digital technologies is positive. These technologies have become part of the fabric of the life of
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