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Resolved: Cyberbullying should be a criminal offense.

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

December 2010 Cyberbullying

Copyright 2010 by Finalist Files, LLC.

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
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Evidence
1. Protection of Children Online: Federal and State Laws Addressing Cyberstalking,
Cyberharassment, and Cyberbullying ....................................................................... 13
2. Parents Often Unaware of Cyber-Bullying ............................................................... 15
3. Constitutionality of Cyberbullying Laws: Keeping the Online Playground Safe for
Both Teens and Free Speech ..................................................................................... 17
4. More Insidious Harassment ....................................................................................... 26
5. The Case for a Criminal Law Theory of Intentional Infliction of Emotional Distress
................................................................................................................................... 27
6. H. R. 1966: A Bill to Amend Title 18, United States Code, with Respect to
Cyberbullying ............................................................................................................ 38
7. Concerning The Megan Meier Cyberbullying Prevention Act (H.R. 1966); The
Adolescent Web Awareness Requires Education Act (H.R. 3630) .......................... 40
8. The Crime of Severe, Repeated, and Hostile Communication with the Intent to Cause
Substantial Emotional Distress? ................................................................................ 45
9. Protecting Victims, Preserving Freedoms ................................................................. 46
10. Act 135: Harassing and Obscene Communications Act ........................................... 48
11. Kiddie Crime? The Utility of Criminal Law in Controlling Cyberbullying ............. 50
12. Not Every Tragedy Should Lead to Prison ............................................................... 68
13. What Isn't Known About Suicides ............................................................................ 69
14. OMG! Missing the Teachable Moment and Undermining the Future of the First
Amendment TISNF! ............................................................................................... 70
15. Protecting kids while protecting free speech ............................................................. 74
16. Joint Statement on the Megan Meiers Cyberbullying Prevention Act, HR 6123 .... 77
17. Hearing on Cyberbullying and other Online Safety Issues for Children .................. 79

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Pro Strategy

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An Epidemic
As an introductory note, the definition of cyberbullying appears to be quite elusive. I am
assuming that cyberbullying by definition occurs between students. Several pieces of evidence
indicate that that is the case: for example, a CRS report defines cyberbullying as harassment
occurring among school-aged children through the use of the Internet.1 However it is somewhat
confusing that the poster child of the cyberbulling debate is Megan Meier, who committed
suicide after being bullied online by an adult. Nonetheless as a general rule, from everything
Ive read, cyberbullying appears to refer to interactions between and amongst students.
I usually avoid an overview of the harms in a debate such as this, because neither team is
going to deny that cyberbullying is a harm, so the debate should really focus on solutions.
However, where the proposed solution may appear to be a bit extreme, it may help to present the
problem as extreme (hence labeling it an epidemic) so that the solution appears to be a
proportionate measure.
A study conducted by U.C.L.A. polled 1,500 students, and determined that 75 percent of
teens have been bullied online. 41 percent of the teenagers reported having been bullied between
one and three times over the course of a year, 13 percent reported between four and six such
incidents, and 19 percent reported seven or more instances of bullying.2 The prevalence of online
bullying, as evidenced by the numbers, should be of immediate concern. But equally concerning
is that adults are often unaware of the online world that students face. Only one in ten students
who have been bullied online have told their parents or another adult about the bullying.2
Cyberbullying presents unique challenges to its victims, which has made cyberbullying
even more toxic than traditional, face-to-face bullying. First, the speed with which the taunts of
a cyberbully are communicated, and the widespread audience to which many of the taunts reach,
are unique to an online setting. An Internet-created communication can be widely distributed at
the click of a mouse and accessed by not only by the bully and target but endless other users as
well, particularly if an e-mail is forwarded en masse or if comments are posted on a public
website.3 Second, technological modes of communication provide anonymity and distance, both
of which encourage the bully to say things that he may refrain from in a more proximate setting.
This remove may make it even easier for bullies (who already tend to exhibit low levels of
empathy) to ignore the impact of their action on the intended target.4 By separating the insult
from the reaction, a bully may fail to comprehend or internalize the pain he is causing his peers.
Third, cyberbullying is often continuous and semi-permanent, in that 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 and physical
contact ends. This makes it hard for victims to find a safe haven.4 Further, a victim of bullying
may relive their distress indefinitely because harmful commentary posted online may remain
posted for a long period of time.3 The sting of the words may not subside when the words remain
in black and white in front of the student.

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The Purposes of Criminal Punishment
There are two legal paths which could potentially address cyberbullying: civil remedies
or criminal punishment. The civil system and the criminal system are fundamentally different.
The purpose of civil law is to compensate the victim; the purpose of criminal law is to punish the
perpetrator. In the civil system, a victim of cyberbullying would bring a lawsuit against the bully
whereas in the criminal system, the government would prosecute the bully. Thus the civil system
resolves disputes between private parties, and the criminal system charges a perpetrator for
injury against society. In the civil system, a person is found liable, and is ordered to pay
damages (money) to the injured party. In the criminal system, a person is found guilty, and
sentenced to prison time. Another major difference is the admission of evidence; in a criminal
trial, evidence is excluded that would have been admitted in a civil trial, so it is often more
difficult to prove a criminal case. Compounding that is the fact that the burden of proof in a
criminal trial is much higher; the prosecution must prove the crime to the standard of beyond a
reasonable doubt. In a civil trial, the standard of proof is lower (such as more likely than not).
The purpose of this overview is to help you answer a basic question: why criminalize
cyberbullying, instead of addressing it in the civil system? The main reason is that most
perpetrators of cyberbullying are teenagers, and teenagers by and large have no money, either to
sue or to pay damages if found liable. Individual civil remedies fail to provide a
comprehensive solution to the systemic problem of cyberbullying. Due to the high transaction
costs associated with individualized litigation, many victims will lack the means to pursue their
claims. Additionally, the possibility that the tortfeasor may be insolvent, and therefore
judgment-proof, creates a risk that the victim will not be made whole even after prevailing in
court. 3 Because of this, most bullies would never be held responsible for their actions in a civil
trial. The second reason is that cyberbullying is a harm which affects the whole of society, not
just an individual person, and thus fits within the purview of the criminal system. Note that a
person can be charged with a crime, AND sued in the civil system (it happens all the time). Thus
you do not need to argue that there should be no civil remedy; were simply arguing that there
needs to be a criminal charge, whether alone or in conjunction with a civil remedy.
The criminal law system punishes individuals for four reasons: retribution, deterrence,
rehabilitation, and incapacitation. Each purpose of punishment would be served by a
cyberbullying statute, which is a strong indication that it is appropriate to criminalize
cyberbullying.
Retribution- A retributivist would argue that society has a duty to punish an offender
because of that persons moral culpability or blameworthiness. Essentially, as a society,
we punish people because they deserve it. This justification for punishment is applicable
in a cyberbullying case. The public outcry that has resulted from the suicides of Megan
Meier, Phoebe Prince, and Tyler Clementi (some national names, but there are several
more) has clearly demonstrated that the public perceives the actions of their tormentors to
have been sufficiently blameworthy to warrant punishment. One of the values of
retribution is that it gives the community a voice and a forum through which to develop
and reinforce norms: criminal punishment is a communicative act transmitting to the
wrongdoer how wrong his conduct was. 5 In this way, the community is able to
collectively state that certain behaviors are intolerable.

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Deterrence- The second justification for criminal punishment is to prevent future


criminals from violating the law. The criminal system presents consequences for adverse
behavior through social stigmatization and loss of freedom. In this way, the criminal law
is coercive. Regardless of the use of civil sanctions, a need remains for using criminal
penalties to achieve the societal goals of conformity. Under the theory that individuals are
most likely to regulate their behavior out of fear of humiliation or loss of liberty, criminal
sanctions are an appropriate means to assure that individuals behave within the rules of
society.5 Social stigmatization and loss of freedom have a greater deterrent impact than
the assessment of damages. Typically a person values his reputation and freedom more
than his money. Deterring cyberbullying should be the primary goal of any proposed
solution, especially because the victims of cyberbullying are often children whom society
aims to protect. Thus, employing the greatest deterrent means the law affords may be a
necessity in cyberbullying cases.
Rehabilitation- A third justification for punishment is for the purposes of rehabilitation,
to reintroduce the offender into society as a productive and successful member of the
community. In this way, punishment is for the sake of the offender himself. There exists
grave skepticism as to whether our prisons are effective centers of rehabilitation, but the
rehabilitation angle in the cyberbullying debate would be slightly different, because most
defendants would be sent to a juvenile detention facility. Your judge would probably
entertain the suggestion that a juvenile detention program will be more effective than
most prisons in addressing the psychological needs of the offender. That is somewhat
beyond the scope of this debate, but for our purposes, there is an argument to be made
that cyberbullies should be prosecuted on rehabilitation grounds.
Incapacitation- The last justification for criminal punishment is to restrain individuals
that pose a threat to society. Like rehabilitation, this justification is less persuasive than
retribution or deterrence in a cyberbullying case, because as far as criminals go, a bully
isnt particularly dangerous. But criminalization would remove the bully from the school
environment, to the benefit of other students and victims, until that person was prepared
to interact in a socially beneficial manner. In many cases, removing the source or
instigator of bullying would have saved lives.

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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remedies should serve as a backstop to ensure appropriate retribution for offenders and justice
for their victims.3 This topic is about codifying a last resort, for victims and for society.

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Con Strategy

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Cyberbullying Statutes are Riddled with Flaws
To render cyberbullying a criminal offense, state and/or federal legislatures would have
to pass laws to that effect. Proposed and enacted cyberbullying statutes are incredibly flawed.
As the Con team, I would challenge the Pro to articulate a cyberbullying statute that achieves its
ends, because current cyberbullying statutes do not. We cannot legislate that which we cannot
articulate, and so far, legislatures have failed to draft a workable statute to criminalize
cyberbullying.
The following federal statute has been proposed in the House of Representatives as an
amendment to existing United States code:
Cyberbullying.
(a) 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.
(b) As used in this section-(1) the term communication means the electronic transmission, between or
among points specified by the user, of information of the users choosing, without
change in the form or content of the information as sent and received; and
(2) the term electronic means means any equipment dependent on electrical
power to access an information service, including email, instant messaging, blogs,
websites, telephones, and text messages.6
This statute has stalled in the House under heavy criticism. An adjunct scholar for the
CATO institute observed that this law would not be comprehensible to the average citizen, and,
indeed, to the average lawyer or judge for that matter. It does not help understanding, of course,
when vague terms such as intimidate, harass, or cause substantial emotional distress are used in
a criminal statute to define verbal conduct that can land one in federal prison. A typical citizen
cannot be expected to understand how and where to draw a line, not only because of the inherent
vagueness of the terms, but also because in this instance the prohibited conduct involves solely
speech7 Volokh, a popular online blogger and law professor, noted the potential breadth of
the statute: 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 reasons. 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.8
The expansiveness of this formulation to criminalize cyberbullying is shocking. The law
was introduced by Congresswoman Sanchez. Consider her defense of the law: 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,

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hostile communications made with the intent to harm 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. 9 Unfortunately for Ms. Sanchezs theory, judges and juries
apply the law as written and her lighthearted assurances mean nothing in a court of law.
Essentially what Ms. Sanchez told us is that her law is so fatally flawed that it fails to distinguish
between Volokhs political blogging and a fifteen year-old levying derogatory insults on a peers
Facebook wall. Ms. Sanchezs solution? Well the judges will figure it out. She apparently
forgot that as a legislator, it is her responsibility to make the laws. This law is infuriating to me
because it subjects every means of communication I regularly employ (emailing, IMing, calling,
and texting) to criminal discovery because I may have (albeit intentionally) hurt someones
feelings. This is the best solution we can come up with to deter teenage bullying through
electronic mediums? Volokh expressed the bottom line: This is clearly unconstitutional. 8
The majority of states have passed cyberbullying laws, but only a minority have actually
criminalized cyberbullying.3 The Illinois statute which follows (in edited form, look for complete
statute in evidence packet) is an example of a statutory law that has been enacted which
criminalizes cyberbullying:
Harassment through electronic communications.
(a) Harassment through electronic communications is the use of electronic communication for
any of the following purposes:
(1) Making any comment, request, suggestion or proposal which is obscene with an intent to
offend;10
A person who violates the Illinois statute is guilty of a Class B misdemeanor; a subsequent
violation is a Class A misdemeanor with a minimum of 14 days in jail or 240 hours of
community service. A person who has violated the statute three or more times in ten years is
guilty of a Class 4 felony.10
As is readily apparent, this statute is susceptible to the same criticisms that the federal
statute succumbed to. This statute is actually broader, in that a violator merely has to have an
intent to offend instead of to coerce, intimidate, or cause substantial emotional distress.
Further, there is no parallel requirement as to the severity of the statement, in that it need be
repeated or hostile. If I make a statement intending to offend someone, through an
electronic medium, Im guilty of a crime.
The Pro is obviously going to argue that the statute that criminalizes cyberbullying does
not have to be the proposed federal statute, or the Illinois statute. But it is certainly fair for the
Con team to demand that the Pro present a workable statute. Most likely, they will fail to present
a statute. But if they do name an alternative, such as the Louisiana or Missouri statutes, simply
identify the same weaknesses that are seemingly inherent to criminal cyberbullying statutes:
vagueness and breadth.

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A Cyberbullying Case Will Rarely Be Successfully Prosecuted
To meet its burden of proof, and successfully prosecute a violation of a cyberbullying
law, the prosecution must prove the elements of the crime. This means that the prosecution must
prove the mental state of the violator, that a prohibited action was taken, and that the action
caused the harm. These elements raise issues unique to a cyberbullying statute.
For example, both of the statutes we have examined, the proposed federal statute and the
enacted Illinois statute, have required a prosecutor to prove that the violator acted with intent.
While this may be more than you care to know, the Model Penal Code (Section 1.13(12)) equates
intent with purpose. Purpose is defined as the conscious object to engage in conduct of that
nature or to cause such a result according to the Model Penal Code Section 2.02(2)(a). Purpose
is the highest mental state required under the Model Penal Code, and is thus the most difficult to
prove, especially in a cyberbullying case. A short illustration will show you why. If person A
points a gun at person Bs head, and pulls the trigger, person A has purposely killed person B.
We dont need to know anything about what A was thinking to prove her mental state. We can
infer from As actions that it was As conscious object to kill. But what if instead, A posted as
her Facebook status that everybody hates B. It is very unlikely that a court would infer from
that action that it was As conscious object to cause B substantial emotional distress. A may not
have intended for B to even see the post.11 Or what if A posts directly on Bs wall, I hate you.
In this scenario, it is more likely that A would be found guilty. But isnt it plausible that it was
not As conscious object to cause B substantial emotional distress, but rather, to express her
feelings to get if off her chest? The bottom line is that A is not going to tell us what shes
thinking, and its going to be nearly impossible to prove that she acted with the required mental
state, except in the most egregious of cases.11 [The Model Penal Code is a highly influential
collection of criminal law; many state laws are modeled after the MPC. Select portions are
available at:
http://law.fordham.edu/assets/Faculty/model_penal_code_selected_sections%281%29.pdf].
The prosecution is also responsible for proving that the prohibited action caused the
harm, which in this case, would be something like substantial emotional distress. There is no
inherent problem to causation if the harm is emotional distress, but the cyberbullying cases that
have drawn attention and outrage are cases where the harm has been much greater; namely, the
person who was bullied commits suicide. It is worth clarifying that it is highly, highly unlikely
that a person will ever be criminally liable for another person committing suicide under a
cyberbullying statute. The reason is twofold. First, there is essentially no way to prove that the
person would not have committed suicide if he or she was not bullied, and that the bullying was
thus the cause of the suicide. 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 The criminal law
typically does not hold people responsible for outcomes that are idiosyncratic or unpredictable.
12
The second reason is that the person who committed suicide acted on his own free will; he was
the cause of his own suicide. 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 homicide, it is only in the rarest case that the bully will be deemed to be the cause of
the victims death.13 This clarification is something that you should not lose sight of in round.

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When the Pro points to tragic cases where the bullied individual commits suicide, and says we
have to do something, you should consistently point out that principles of criminal law preclude
holding someone responsible for another persons suicide. The bully may be held responsible
for emotional distress, but never for that persons death.
The last concern with criminalization that you should be aware of is the burden of proof.
In a criminal case, the prosecution must prove the elements of the crime to the standard of
beyond a reasonable doubt. It must prove the mental state, the prohibited action, and the
causation, each to that standard. The term beyond a reasonable doubt has never been defined,
but it means what it says. If there exists a doubt in the mind of a juror, a doubt for which there is
a reason, the person cannot be found guilty. To find guilt, the jury must be unanimous. So if a
single juror doubts the defendants guilt, then the defendant will be acquitted. Beyond a
reasonable doubt is the highest burden of proof in the legal system.
The reason I have examined the mental state, causation, and burden of proof issues is
because while I believe that the proposed federal statute is too broadly construed (as in not
limited to cyberbullying at all), I also think that a cyberbully will very rarely be successfully
prosecuted under a cyberbullying statute. That suggests that criminalization of cyberbullying is
unnecessary. It also suggests that it will be ineffective, which leads me to my next argument.

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Criminalizing Cyberbullying does not Solve the Problem; Creates New Problems
Criminalizing cyberbullying does not solve the problem, and may in fact exacerbate it.
As has been demonstrated, the only criminals who may successfully be prosecuted under a
cyberbullying statute are those who have demonstrated particularly egregious behaviors. But
does addressing the most extreme cases in the criminal law system do anything to solve the
problem? If schools leave egregious speech to the criminal and civil justice systems, we are
nevertheless left with the persistent taunts and insults and verbal aggression that does not rise to
the level of crime or civil harm.14 It seems plausible that a relative few students are subjected to
an extreme manifestation of bullying; but most students are probably the target of, an observer
to, or participant in the persistent day to day bullying to which the criminal legal system offers
no solution. Authorities shouldnt react to middle school drama with intense regulation but
should be proactive and try to prevent conflicts. Criminalizing cyberbullying wont solve the
problem. 15 The criminalization of cyberbullying is wholly reactive; the law steps in when the
case garners publicity. But the solution to cyberbullying will not be reactive, it will be
preventative.
So criminalizing cyberbullying fails to address the problem, and certainly doesnt offer a
solution. But does it cause harm? The answer is yes because it distracts attention from the real
problem and is inefficient in terms of resources. First, the criminalization of cyberbullying
focuses attention on egregious cases and diverts attention from the more widespread problem:
while such legislation [criminalizing cyberbullying] is often defended as merely a beginning in
addressing complex behaviors, it may in fact serve to distract stakeholders from investing in
comprehensive, ongoing, in-depth prevention and intervention efforts that are needed to truly
prevent such trauma Further, a child who is victimized repeatedly and cruelly in school may,
out of depression and despair, retaliate with cyberbullying and under this legislation would be
branded a criminal, not a victim. As professionals, we see such behavior as more appropriately
addressed though comprehensive efforts to establish school communities where every student
feels supported, and where bullying and aggression of any kind is not allowed. These are issues
that must be addressed locally in schools and with childrens caregivers, rather than by the
federal government.16
Second, it is important to understand that in a criminal prosecution, the government
brings the case against a defendant. Thus the costs of litigation fall on the government. Public
schools are also funded by the state. Which means the state has a couple of choices as to how it
would like to allocate its limited resources to address cyberbullying. The state can spend an
exorbitant amount of money prosecuting (probably unsuccessfully) a few cyberbullies in our
extremely expensive legal system. Or, the state could spend its limited funds in the public school
system, by employing alternative disciplinary and preventative measures. Public schools can
discipline bullies by suspending or expelling them. Public schools can purchase software to
block social networking sights on school computers (or on students laptops if the school
provides laptops). Software can also track students online activities. Schools can educate
students and prepare students for their online social lives. Schools can involve students,
teachers, school counselors, and parents, to monitor and encourage students to treat one another
with respect. Schools can provide a supportive environment for growth for all students. All the
court system can do is send a few bullies to juvenile detention. Criminal prosecutions are not an
efficient or valuable use of government resources.

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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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http://assets.opencrs.com/rpts/RL34651_20080905.pdf

1. Protection of Children Online: Federal and State Laws


Addressing Cyberstalking, Cyberharassment, and
Cyberbullying
September 5, 2008
By Alison M. Smith Legislative Attorney, American Law Division
CRS Report for Congress

[]
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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In another teen suicide, the issue of an adult engaging in cyberbullying activities has caused
some individuals to use the terms cyberharassment and cyberbullying interchangeably. On May
15, 2008, a federal grand jury indicted a Missouri woman for her alleged role in a MySpace hoax
against a minor. The indictment alleges that the defendant created a false identity on the social
network MySpace to obtain information from Megan Meier, a teenager. The indictment further
alleges that this information was used to torment, harass, humiliate, and embarrass the
juvenile. The false identity was that of a 16-year-old boy named Josh Evans.
Communications allegedly ensued between Megan and Josh for some time. According to
media accounts, Megan took her life after receiving a cruel message from Josh.58 State
prosecutors declined to prosecute this harassment activity,59 noting that the womans intent
did not cross a threshold into criminal activity based on state laws governing stalking,
harassment, and child endangerment.60
It is important to note that the federal government is not charging the Missouri woman with
harassment of Meier. Rather, the governments legal theory is based on the Computer Fraud and
Abuse Act,61 specifically 18 U.S.C. 1030(a)(2)(C) and (c)(2)(B)(2), which makes it a felony
punishable by up to five years of imprisonment if one intentionally accesses a computer without
authorization ..., and thereby obtains ... information from any protected computer62 if the
conduct involved an interstate ... communication and the offense was committed in furtherance
of any ... tortious act [in this case intentional infliction of emotional distress] in violation of the
... laws ... of any State. Prosecutors alleged that the defendant violated MySpaces terms of
use63 by using a fictitious name, thereby giving her no authority to access MySpace.
To address the problem of cyberbullying, H.R. 6123 was introduced on May 22, 2008.64 This
bill would amend title 18 of the United States Code by making cyberbullying a federal crime
with a punishment of up to two years of imprisonment and/or a fine. Specifically, section 3 of
H.R. 6123 states
(a) 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.65

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http://well.blogs.nytimes.com/2008/10/03/parents-often-unaware-of-cyber-bullying/

2. Parents Often Unaware of Cyber-Bullying


October 3, 2008
By Tara Parker-Pope New York Times Columnist
New York Times

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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http://www.vanderbiltlawreview.org/articles/2010/05/King-Constitutionality-of-CyberbullyingLaws-63-Vand.-L.-Rev.-845-2010.pdf

3. Constitutionality of Cyberbullying Laws: Keeping the


Online Playground Safe for Both Teens and Free Speech
April 30, 2010
By Alison Virginia King Candidate for Doctor of Jurisprudence, May 2010, Vanderbilt University Law School
Vanderbilt Law Review

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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freedom of speech guaranteed by the First Amendment. While the problem of cyberbullying
urgently requires a solution, policymakers should avoid the temptation to enact knee-jerk
legislation that may be overly broad or create unintended consequences that restrict the freedom
of expression.
[]
II. The Need for Cyberbullying Legislation
Cyberbullying is already too grave a problem to be ignored, and it is quickly escalating with the
proliferation of Internet use and the popularity of social-networking websites. n12 Experts at the
Centers for [*849] Disease Control and Prevention characterize cyberbullying as an "emerging
public health problem." n13 Yet cyberbullying victims lack a specific legal remedy in many
states. Although victims sometimes can resort to other related criminal laws, such as harassment
or cyberstalking, these alternative legal remedies provide inadequate solutions for a unique
problem. The time has come for legislative action.
Negative Effects of Cyberbullying
Bullying has evolved from the playground to the computer with the rise of Internet connectivity
across America. n14 Nancy Willard, executive director of the Center for Safe and Responsible
Internet Use, defines cyberbullying as "cruelty to others by sending or posting harmful material
or engaging in other forms of social aggression using the Internet or other digital
technologies." n15 With teens spending increasing amounts of time on the Internet, online
harassment has become more prevalent. n16 An article published in the Journal of Adolescent
Health reported a 50 percent increase in online harassment of youth from 2000 to
2005. n17 According to a 2007 study conducted by the Pew Internet and American Life Project,
one-third of teenagers reported being victims of online harassment. n18 Researchers struggle to
discern the precise prevalence of cyberbullying because teenage [*850] victims rarely report
incidents to adults.n19 One fact is clear, however: cyberbullying is a major and growing problem
for American teens.
The forum and mode of bullying may have changed over the years, but the effects remain every
bit as grave. In fact, the negative effects of cyberbullying are often more serious and long-lasting
than those of traditional forms of bullying for several reasons. n20 First, the Internet provides a
veil of anonymity that encourages users to say things they might not otherwise say in person or
even on the phone. n21 Although there are ways to investigate and ultimately discover the
identities of cyberbullies, they can communicate harmful messages without identifying
themselves, which makes it particularly difficult for victims to respond initially.
Second, an Internet-created communication can be widely distributed at the click of a mouse and
accessed by not only the bully and target but endless other users as well, particularly if an e-mail
is forwarded en masse or if comments are posted on a public website. n22 Popular socialnetworking websites such as MySpace and Facebook provide a public forum for cyberbullies to
ridicule and humiliate their victims. n23 Even worse, certain websites such as The Dirty are
dedicated specifically to online criticism and exist solely for cyberbullies to post photos of

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individuals along with insulting captions. n24 Some of these smear sites catalogue postings by
city or school so visitors can easily access information about those in their communities. n25
Finally, the sting of cyberbullying tends to linger because hurtful comments may remain online
indefinitely, forcing victims to relive the pain every time they turn on the computer or visit
a [*851] particular website. n26 In contrast to the relative ease and speed with bullies can
engage in online harassment, the effects can be disproportionately harsh and long-lasting.
Cyberbullying can cause serious psychological harm, including depression, low self-esteem,
anxiety, alienation, and suicidal intentions. n27 In severe cases, like that of Megan Meier,
cyberbullying may even serve as a catalyst to suicide.n28 Through extensive media coverage of
her death, Meier has become the poster child for cyberbullying, but her story is only one example
of how cyberbullying can ruin lives. n29 Like Meier, thirteen-year-old Ryan Halligan took his
own life after relentless bullying via online instant messaging over a period of three months by
classmates accusing him of being gay. n30 For other cyberbullying victims, such as Kylie
Kenney, the road to recovery can be long, painful, and expensive. n31 Kylie went through years
of professional counseling and changed schools twice to deal with the psychological effects of
being cyberbullied through a website entitled "Kill Kylie Incorporated" that middle-school
classmates created "to show people how gay Kylie Kenney is." n32
While cyberbullying affects people of all ages, youths are especially vulnerable to online
attacks. n33 Peer acceptance is crucial to adolescents. n34 As a result, being cyberbullied by
their peers may create [*852] stress, frustration, and anger that negatively impacts other areas of
psychological and cognitive development. n35 The emotional consequences can spill over into
victims' social, academic, and family lives. n36
When online harassment goes unaddressed and unpunished, it can generate a self-perpetuating
culture of cyberbullying that provokes victims to seek revenge and become cyberbullies
themselves, thereby exacerbating the problem. n37As with traditional bullying, both victims and
perpetrators are more likely to engage in criminal conduct in the future. n38 Hence,
cyberbullying is a problem with lasting ramifications for the individuals involved, as well as
society at large.
B. Inadequacies of Existing Legal Remedies
In the absence of cyberbullying laws, victims can resort only to tort law and certain criminal
laws aimed at related offenses, such as harassment or cyberstalking. However, these legal
remedies are not designed to address the problem of cyberbullying. As a result, they may be
insufficient to deter cyberbullies or to protect and compensate their victims. While such laws
provide a creative backdoor approach to reaching cyberbullies, they fail to provide a direct
means of thwarting cyberbullying.
1. Common Law
[]

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Aside from the causation challenges accompanying tort law, individual civil remedies fail to
provide a comprehensive solution to the systemic problem of cyberbullying. n45 Due to the high
transaction costs associated with individualized litigation, many victims will lack the means to
pursue their claims. Additionally, the possibility that the tortfeasor may be insolvent, and
therefore judgment-proof, creates a risk that the victim will not be made whole even after
prevailing in court. n46
[]
3. Criminal Laws Related to Cyberbullying
In states without criminal cyberbullying laws, prosecutors may attempt to pursue cyberbullies
under related criminal charges, such as harassment and stalking statutes. n57 However, this
approach heavily burdens prosecutors, who must find an arguably applicable law and build a
case that satisfies the requirements of a law intended to fight offline problems. Cybercrimes have
unique features and raise special evidentiary issues that might not be adequately addressed by
simply stretching old laws to fit new crimes. n59
Several states have chosen to address the problem by enacting cyberstalking statutes.
Cyberstalking statutes bar the use of the Internet and electronic-communication tools to
repeatedly harass or threaten an individual. n60 In this sense, cyberstalking laws may be more
closely related to cyberbullying than traditional stalking laws, but they still offer only limited
applicability and success. n61 Most stalking and cyberstalking statutes require proof of a
"credible threat" of violence, which might not be present in many instances of cyberbullying.
Cyberbullies often harass their victims without making an overt threat of this nature. Although
an ad hoc approach of applying harassment or stalking laws to cyberbullying may enable
prosecutors to reach perpetrators in some cases, it fails to provide a comprehensive solution to
the problem of cyberbullying. Many cases may fall through the cracks of laws intended to serve
other purposes.
Several federal laws are related peripherally to cyberbullying, yet none adequately addresses the
problem. n63 For example, the Interstate Communications Act criminalizes the transmission of
"any threat to injure the person of another" through interstate commerce. n64 However, this
statute is inapplicable to a large portion of cyberbullying content that likely cannot be construed
as a threat of bodily harm, even if such content is psychologically harmful. n65 Similarly, the
Telephone Harassment Act, which criminalizes the use of anonymous communications "with
intent to annoy, abuse, threaten, or harass," fails to capture many instances of
cyberbullying. n66 Although the Act was amended in 2006 to include Internet communications,
the requirement that the communications be made without disclosing the identity of the author
excludes many cases of cyberbullying, as users of e-mail communications and social-networking
websites are often readily identifiable. n67
The federal Computer Fraud and Abuse Act ("CFAA"), which criminalizes unauthorized
computer use and was originally intended to thwart computer hacking, might apply to a narrow
segment of cyberbullying cases. n68 Yet, many cyberbullies, such as those operating from
personal computers who harass their victims without violating any specific website-user

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agreement, would not satisfy the requirements of this statute. The failure of the CFAA as a
weapon to combat cyberbullying can be seen in the case of Lori Drew, the woman who created
the MySpace profile that drove Megan Meier to suicide. Because Missouri had no applicable
cyberbullying law, federal prosecutors attempted to use the Act to convict Lori
Drew. n69 Ironically, [*857] this extreme case of cyberbullying that resulted in the death of a
teenager was reduced to a mere violation of the MySpace terms of service. n70 Although Drew
was originally convicted of three misdemeanor offenses of unauthorized access to computers
under the CFAA, ultimately U.S. District Court Judge George Wu overturned the
conviction. n71 Judge Wu aptly recognized the ill fit of the CFAA to Drew's case, noting that
"there is nothing in the legislative history of the CFAA which suggests that Congress ever
envisioned ... application of the statute [to cyberbullying]." n72
Even if Lori Drew had been convicted under the CFAA, the nature of the charges trivializes the
issue of cyberbullying and fails to provide a solution to the central harm committed against
Megan. The Drew case highlights the inadequacies of the current legal framework to punish and
deter cyberbullies. Both state and federal laws directed toward harassment, communications, and
stalking leave a gap to be filled by legislation specifically aimed at cyberbullying.
III. Legislative Responses to Cyberbullying
In the wake of high-profile suicides like that of Megan Meier, several states and Congress have
enacted or proposed cyberbullying legislation. Many of the laws were prompted by a specific,
high-profile instance of cyberbullying, while others represent a proactive effort to prevent such
extreme cases from occurring. n73 Most of the laws focus on prohibiting online harassment and
bullying within the public-school context.
A. Enacted Cyberbullying Legislation
As of 2009, twenty states had enacted laws to combat cyberbullying. n74 These laws prohibit
cyberbullying in two ways. First, some specifically proscribe cyberbullying as a prohibited act
within the operative provision of the law. Second, others target the broader act of bullying and
include cyberbullying within the statutory definition of the terms "bullying," "intimidation," or
"harassment."
States have cleared the difficult hurdle of defining cyberbullying in different ways. Only Kansas
offers a direct definition of the act of cyberbullying: "bullying by use of any electronic device
through means including, but not limited to, e-mail, instant messaging, text messages, blogs,
mobile phones, pagers, online games and websites." n75 The Indiana, n76 Kansas, n77 and
Oregon n78 laws explicitly mention the term "cyberbullying" without defining it, while the other
state laws simply include considerations for electronic media within the definitions of bullying
and harassment. n79
With the exception of the Illinois statute, current cyberbullying laws primarily focus on the
public-school setting by requiring school boards to set policies that prohibit cyberbullying. The
Oregon statute is representative: "Each district school board shall adopt a policy
... [*859] prohibiting harassment, intimidation or bullying and prohibiting
cyberbullying." n80 The principle undergirding these laws is the "right to receive [a] public

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education in a public-school educational environment that is reasonably free from substantial
intimidation, harassment, or harm or threat of harm by another student." n81
By delegating conscription and enforcement of cyberbullying prohibition to public schools, these
legislatures may have picked the most appropriate forum in which to address the
problem. n82 Allowing school boards to set cyberbullying policies puts the issue in the hands of
the institution most directly affected by the issue and best positioned to develop a
solution. n83 For example, the Washington cyberbullying law requires school districts to set
harassment and cyberbullying policies "through a process that includes representation of parents
or guardians, school employees, volunteers, students, administrators, and community
representatives." n84 This collaborative system engages a variety of stakeholders and enables the
school district to create policies that reflect the interests of all involved parties. Thus, the policies
are more likely to be followed and enforced.
Public schools, equipped with trained guidance counselors, may be better suited than the
juvenile-justice system to address cyberbullying among youth. n85 Due to the existing
relationships and regular contact teachers and administrators have with students, they are primed
to prevent and catch cases of cyberbullying, at least when [*860] they occur on school grounds
or impact students in the classroom. n86 If attentive to the issue, schools may be able to
intervene to solve problems more promptly and with less disruption to students' lives than a court
proceeding. n87
However, these laws have obvious limits. First, they only address cyberbullying when it is within
the jurisdiction of the school boards. As discussed in Part IV, the First Amendment curbs the
ability of schools to punish student speech.n88 Therefore, these laws capture only incidents of
cyberbullying within the limited purview of public-school authority over student actions, leaving
a large portion of cyberbullying unregulated when it occurs off-campus and during after-school
hours. n89 Moreover, they leave cyberbullies who are not part of the public-school system - like
Lori Drew - completely unscathed. Schools remain uncertain as to the limits of their authority
regarding student Internet speech, indicating they may be ill-suited to craft policies in light of
First Amendment concerns. n90 Additionally, by allowing school districts to set their own
cyberbullying policies, states may lack uniformity among school districts, let alone other states.
[...]
The Illinois cyberbullying law is the most comprehensive and far-reaching of the cyberbullying
laws to date. Unlike the other cyberbullying laws, the Illinois law is not constrained to the
public-school setting. It prohibits "harassment through electronic communications" at large,
applying to adults as well as public-school students. n96 This statute would apply directly to a
case like that of Megan Meier. n97
The law further provides special terms for youth victims. n98 Specifically, the statute prohibits
the electronic communication of messages intended to harass someone under the age of thirteen,
or the knowing inducement of another to transmit such messages. n99 The Illinois law stands
alone in criminalizing cyberbullying beyond the bounds of the public schools' jurisdiction. n100

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[]
B. Proposed Cyberbullying Legislation
1. Proposed State Legislation
In addition to cyberbullying laws already in effect, at least ten state legislatures
(California, n104 Connecticut, n105 Hawaii, n106 Kentucky, n107 Maine, n108 Massachusetts,
n109 Missouri, n110 New York, n111 Pennsylvania, n112 and Vermont n113) have introduced
cyberbullying bills that are currently in various stages of the political process and
may [*863] pass in future sessions. n114 These laws are substantially similar to cyberbullying
laws already enacted in other states in that they focus on the public-school forum.
Several of the proposed laws require school districts to implement measures for identifying,
reporting, and documenting incidents of cyberbullying. n115 Kentucky's proposed law goes
further by requiring local school districts to provide training for professionals with direct student
contact to help identify, respond to, and prevent cyberbullying. n116 The Vermont bill also
includes an educational element. It requires the state department of education to create a
secondary education curriculum that teaches Internet safety, including the "recognition,
avoidance, and reporting of cyberbullying." n117 Similarly, the California legislature, which
already enacted a law to allow expulsion of students for cyberbullying, is considering additional
legislation to require instruction on the negative impacts of cyberbullying in public schools. n118
A few of the proposed laws are exceptionally broad. Some of the proposals, such as that of
Maine, cover acts committed through a vast range of technologies, including text messaging, an
increasingly prevalent mode of teenage communication. n119 The expansive Vermont bill
includes cyberbullying that occurs "at any location if the acts have a direct and negative impact
on students [sic] academic performance or access to school services ... whether or not the use [of
technology] occurs on or involves school property." n120 This would give schools expansive
authority to punish cyberbullying generated on a private computer off-campus and outside of
school hours or school-sanctioned activities. Similarly, the proposed Pennsylvania law defines
acts of cyberbullying as being "committed at either the place at which the cyberbullying conduct
was transmitted or at the place where the [*864] cyberbullying conduct was
received." n121 Accordingly, cyberbullying content created off-campus on a personal computer
that is later accessed from a school computer would be considered to be an on-campus offense.
Some of the proposed laws also entail severe penalties for cyberbullying - much more severe
than the school sanctions imposed by current cyberbullying laws. The Pennsylvania bill provides
that a first offense of cyberbullying constitutes a first-degree misdemeanor, whereas a second
offense - or a first offense by someone previously charged with a violent crime involving the
same victim or school - qualifies as a third-degree felony. n122 As a result, students could face
hefty consequences for computer content created in the privacy of their own homes outside of
school hours.
2. Proposed Federal Legislation
On the federal legislative front, Representative Linda Sanchez of California introduced the

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Megan Meier Cyberbullying Prevention Act in April 2009. n123 The proposed law imposes a
fine and up to two years imprisonment for anyone who "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." This bill provides a direct means to prosecute cyberbullying cases like hers and those
of other online harassment victims. The Act applies beyond the realm of public schools and is
broad enough to capture cyberbullying committed by or targeting adults and students. It appears
to cover many cases of cyberbullying that are beyond the reach of most current and proposed
state legislation. Yet the bill, cosponsored by fourteen Democrats and one Republican, is
unlikely to pass. n124 Representatives from both political parties criticized the bill as an
unconstitutional restriction on free speech at an October 2009 hearing of the House Judiciary
Subcommittee on Crime, Terrorism and Homeland Security. n125
The proposed Student Internet Safety Act, on the other hand, takes a milder approach to
cyberbullying prevention through education. n126 It would require recipients of federal funding
under the Elementary and Secondary Education Act of 1965 to promote safe Internet use among
students. n127 Such programming would include cyberbullying prevention and increased
involvement from parents to reinforce safe Internet use by their children. n128 The bill, which
passed through the House of Representatives with strong bipartisan support, currently sits with
the Senate Committee on Health, Education, Labor, and Pensions. n129
[]
D. Nonlegal Measures: Thinking Outside of the Courtroom
A comprehensive solution to eradicating cyberbullying requires looking beyond the strictures of
the law to other disciplines. Although this Note primarily focuses on legal measures to address
cyberbullying, nonlegal tactics, such as educational programming, counseling, and legislative
action, contribute to a more complete solution to this complex social problem. Cyberbullying
laws alone are an insufficient cure, especially considering that in order to withstand
constitutional scrutiny, they may be weakened to the point that they fail to cover the majority of
off-campus cyberbullying instances. In fact, until the Supreme Court offers more constitutional
guidance on how schools may regulate online speech, nondisciplinary action may be the most
prudent and effective way for schools to respond to cyberbullying.
Education, training, and counseling in homes and schools may help prevent cyberbullying in a
more proactive manner than cyberbullying laws. n216 Especially at the elementary-and middleschool levels, it is important for children to build safe online habits. n217 [*881] Schools need
not invest extensive resources in developing a cyberbullying curriculum. Organizations such as
the Center for Safe and Responsible Internet Use offer educational materials, handouts, and
training materials, some available free online. n218
[]
While schools must respect the parental domain, educators do have a role to play in teaching
students about Internet dangers. n225 Education and training on how to respond to and prevent

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cyberbullying should extend not only to parents and students but to teachers and administrators
as well. n226 Once educators learn of potential cyberbullying, they should notify parents and
provide any available resources and recommendations to help alleviate the problem before it
develops further. Fortunately, as the problem of cyberbullying has proliferated, so have
anticyberbullying resources designed to help parents and teachers deal with the problem. n227
[]
Finally, while educational measures may dissuade would-be cyberbullies from becoming online
predators, this approach lacks the stronger deterrent effect of cyberbullying laws that prohibit
and punish conduct. When education fails to prevent cyberbullying from occurring, offenders
deserve to face penalties, both for retributive purposes and to dissuade others from engaging in
like conduct. Therefore, educational tools will be most effective in combination with disciplinary
measures.
None of the educational or monitoring tactics discussed in this Section restricts student speech or
raises First Amendment concerns. [*884] These nonlegal measures should be the first step in
creating a line of defense against cyberbullying. This multidisciplinary approach addresses
cyberbullying more proactively and with less constitutional tension than cyberbullying laws.
However, when educational and other nonlegal measures fail to prevent cyberbullying, legal
remedies should serve as a backstop to ensure appropriate retribution for offenders and justice
for their victims.
[]

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http://www.nytimes.com/roomfordebate/2010/09/30/cyberbullying-and-a-students-suicide/moreinsidious-harassment

4. More Insidious Harassment


September 30, 2010
By Marlene Sandstrom Professor of psychology at Williams College; her research has focused on social
vulnerability during childhood and peer relationships at school
New York Times

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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http://www.wcl.american.edu/journal/clb/documents/Vol5Issue1.pdf?rd=1

5. The Case for a Criminal Law Theory of Intentional


Infliction of Emotional Distress
Winter, 2009
By Leslie Yalof Garfield Pace University School of Law
Criminal Law Brief, American University, Washington College of Law

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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requirement of battery may be equally prevalent among those who are subject to severe and
outrageous conduct. Given that IIED presents the same types of harm as the criminalized
intentional torts, society would be well-served by assigning IIED the same criminal status.
Some modern theorists may argue that, given the current state of the law, it is unnecessary to
criminalize IIED. 18 According to these scholars, tort law has effectively absorbed the theories of
retribution and deterrence through the use of large civil sanctions. 19 These sanctions serve a
utilitarian purpose by regulating human behavior and satisfying the need for vengeance. 20
Others, however, argue that tort law primarily "prices" harm, whereas criminal law serves to
prohibit socially harmful behavior. 21 Consequently, the assignment of monetary penalties as
both retributive and deterrent in nature will never compensate for the larger threat to individual
liberty. 22 According to those in the latter camp, in order to safeguard against physical harm, it is
important to instill in society "a general fear which cannot be adequately [*34] remedied by
compensation." 23 Therefore, an issue arises as to the appropriateness of extending criminal
sanctions to a harm that the law already redresses. 24
This article will explore the appropriateness of criminalizing IIED. Part I will discuss the
historical context of civil and criminal remedies and evaluate their modern application to
intentional acts. Part II will explore the limitations of IIED and analyze whether the harm caused
by IIED parallels the harm caused by intentional criminalized torts. Part III will evaluate the
appropriateness of criminalizing IIED. The article will conclude that, given recent
neuroscientific findings, IIED should be criminalized.
I. Intentional Wrongs - The Crime/Tort Distinction
The common law distinction between modern criminal law and tort law was predicated on the
victim's desire for retribution. 25 In the early common law, a victim could pursue justice for the
same wrongful act either through what is now considered tort law or through criminal law. 26
Forbidden actions were punishable by the crown, as the King was said to have been wronged by
every impermissible act. 27 In addition, individuals could independently seek retribution from
impermissible acts through the legal system, which was intended to deter private physical
retaliation. 28 As such, whether an action was brought in tort or in criminal law was largely a
function of the wronged parties' preference. 29
A. Punishing Civil and Criminal Wrongs
The present distinctions between criminal and tort law vary little from their early predecessors.
Criminal wrongs harm society while civil wrongs harm individuals. 30 Although, most
jurisdictions have codified criminal wrongs and enumerated specific punishments, torts remain
largely uncodified. 31 Damages can be nominal, compensatory, or punitive, 32 and the assignment
of each is left to the complete discretion of a judge or jury. 33
Tort damage awards seek to achieve three fundamental goals: (1) to make the victim whole or as
near to whole as possible; 34 (2) to compensate the victim for additional pain or suffering
inflicted by the wrong; 35 and (3) to deter wrongdoers from engaging in the same conduct in the
future. 36 Thus, tort damages do not solely serve to regulate human conduct, but rather to place

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the injured party in the same position he or she was in before the wrong occurred.
In contrast, criminal punishment serves to curtail future undesirable conduct by reshaping
societal norms. 37 In certain instances, criminal punishment may result in the loss of liberty or
finances. The legislature is largely responsible for determining the range of punishment that may
be assigned for a specific criminal act. 38 As such, judges have a degree of discretion within these
ranges to determine the punishment that is warranted in a given criminal case. 39
During this process, a judge may consider several theories of punishment, including retribution
and deterrence. Retribution imposes punishment as a means of societal revenge. 40 Deterrence
imposes individual punishment as a disincentive to the individual and to others from engaging in
the same harmful conduct in the future. 41 These theories are designed to satiate a community's
need for revenge and to assure conformity to desirable social mores.
This judicial embrace of retribution and deterrence has blurred the line between criminal and tort
law, particularly within the area of damages awards. In recent years, tort law has incorporated the
criminal theories of retribution and deterrence. 42 Courts have been more inclined to use tort
awards to sanction undesirable conduct and to help shape societal norms. For example, in TXO
Production Corp. v. Alliance Resources Corp., 43 the Supreme Court upheld the jury's award of $
19,000 in compensatory damages and $ 10 million in punitive damages for slander, reasoning
that "a substantial [civil] award was required in order to serve the goals of punishment and
deterrence." 44 The Court's rationale has been recognized by scholars as a bourgeoning
relationship between civil and criminal law. 45 John Coffee recently noted that "the dominant
development in substantive federal criminal law over the last decade has been the disappearance
of any clearly definable line between civil and criminal law." 46
Thomas Koenig and Michael Rustad have explicitly recognized that the criminal law principles
of retribution and deterrence have been assimilated into tort law, ultimately coining the term
"crimtort." 47 Crimtort is generally used to advance the notion that civil sanctions can serve to
regulate corporate wrongdoers. 48 Financial deterrence at the corporate level is of great value
since loss of monies can threaten the financial health, or even existence, of a particular business
entity. 49
[]
Theorists' evaluation of the use of punitive damages to support criminal theories of punishment
has played out in the courts, which, after the TXO Productions Corp. decision, have routinely
assessed punitive damages against defendants in civil cases as a means of satiating a plaintiff's
need for retribution. 56 In BMW of North America, Inc. v. Gore, 57 the Supreme Court
"emphasized the constitutional need for punitive damages awards to reflect (1) the
'reprehensibility' of the defendant's conduct, (2) a 'reasonable relationship' to the harm the
plaintiff (or related victim) suffered, and (3) the presence (or absence) of 'sanctions,' e.g.,
criminal penalties, that state law provided for comparable conduct." 58
The Court, however, has recently begun to halt the use of damage assessments as a means to
punish. Although the Court has yet to use the Eight Amendment Excessive Fines Clause to limit

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punitive awards, 59 the Court has announced a series of cases that, under the Due Process Clause,
curtail a state or individual's right to collect unreasonably huge punitive awards. For example, in
Honda Motor Co. v. Oberg, 60 the Court ruled that due process principles require judicial review
of punitive damage awards. 61 In BMW of North America, Inc. v. Gore, a 5-4 majority ruled that
the Constitution prohibits "grossly excessive punishment on a tortfeasor." 62 Most recently, in
Philip Morris v. Williams, 63 a widow brought a suit against Philip Morris for negligence and
deceit on behalf of her dead husband, a heavy cigarette smoker. 64 The Court considered the
appropriateness of a large jury award and ruled in a 5-4 decision that the Constitution's Due
Process Clause prohibits the use of punitive damage awards to punish defendants for harm
inflicted on persons who are not parties to the suit. 65 Courts at the state level have rendered
similar decisions. For example, the New Jersey Supreme Court recently ruled that the Punitive
Damages Act ("PDA") did not permit a jury to consider general deterrence to others when
awarding punitive damages. 66
This limitation on punitive damage awards as a means of retribution or deterrence tacitly
acknowledges that its place lies most firmly within the confines of criminal rather than civil law.
Regardless of the use of civil sanctions, a need remains for using criminal penalties to achieve
the societal goals of conformity. Under the theory that individuals are most likely to regulate
their behavior out of fear of humiliation or loss of liberty, criminal sanctions are an appropriate
means to assure that individuals behave within the rules of society.
Robert Nozick has posited that in order to safeguard against physical harm, society must
maintain "a general fear which cannot be adequately remedied by compensation." 67 Nozick's
notion is primarily based on the retributive model. 68 According to Professor Nozick, criminal
punishment is deserved under certain instances, if not demanded. 69 Professor Nozick
demonstrates this theory through a formula; punishment deserved = r * H, where H is the
magnitude of the wrongness or harm, and r is the degree of responsibility. 70 Blameworthiness is
a function of the value of the wrong done by the agent (H) and the degree of the agent's
responsibility for the wrongdoing (r). 71 The value of r may range from no responsibility (0), as
when a criminal defendant is not guilty by reason of insanity, to full responsibility (1), as when
the defendant intentionally committed the crime. 72
Professor Nozick's theory is particularly applicable to intentional wrongs. According to the
theories of corrective justice and crimtort, the redistribution of wealth from the intentional
wrongdoer to the victim can arguably coerce the wrongdoer into behaving properly. 73 However,
what is absent from both theories is the stigma that is attached to criminal punishment; Prof.
Nozick's theory properly accounts for the coercive value of stigma. His formula indicates that the
more responsible the wrongdoer is, the greater the punishment deserved. 74 To the extent that
punishment is viewed on a sliding scale--from probation to monetary obligations to a loss of
liberty--certainly the latter is the most compelling to ensure social conformity. Defendants who
commit torts must balance the financial penalty against the personal value gained from
committing the wrong. In contrast, criminal punishment stigmatizes the individual, thereby
imposing a larger punishment and a greater disincentive to engaging in those particular acts. 75
According to Professor Nozick, criminal punishment [*36] is "a communicative act
transmitting to the wrongdoer . . . how wrong his conduct was"; 76 punishment will communicate

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clearly to the community that such conduct is intolerable. 77 The deterrent value served by an
individual's fear of stigmatization is often appropriate as it may serve as a "system for public
communication of values." 78
Like two branches from the same trunk, the law has provided for criminal and civil relief from
intentional harms to the individual. The sanctions for both criminal and civil wrongs are
understandably blurred as similar theories are often used to attribute blame and assess
compensation. Huge tort awards continue to usurp the role of retribution and deterrence, both of
which were previously reserved for criminal punishment. However, while tort law can
effectively prohibit individuals from repeating particular types of conduct, the non-codified ad
hoc nature of tort law does little to accomplish the most important role of communicating a
system of shared values that define the boundaries within which individuals should live their
lives. Tort law sanctions cannot match the reputation of criminal punishment as an effective
means of regulating behavior. For this reason, society is well-served by the existence of both
criminal and civil definitions for the same intentional wrongs.
B. The Criminalized Torts: Assault, Battery and False Imprisonment
William Prosser identified four "dignitary torts," which are intentional harms against the
individual: assault, battery, false imprisonment, and intentional infliction of emotional distress. 79
These wrongs all require proof that the defendant chose to engage in the tortious conduct and
that, by engaging in such conduct, intended or knew with substantial certainty that the conduct
would invade an individual's right to quiet enjoyment. 80 Three of these torts--assault, battery,
and false imprisonment--also exist in criminal law. 81
Much has been written about the conduct or elemental act of intentional torts. 82 Unlike criminal
law, the act itself is not merely an element of the tort. 83 Instead, proof of the plaintiff's injury is
mandatory, and as such, is a prerequisite to liability. 84 The act must be a voluntary act--one in
which the actor chooses to engage. 85 An involuntary act--conduct engaged in while one is
otherwise unconscious--is not sufficient. 86 Thus, an individual who hits a child while driving a
car due to an epileptic fit does not commit a conscious act 87 whereas one who makes a conscious
choice to swing a fist does. 88
Perhaps the most confusing aspect of this process is proving the actor's desire to engage in the
conduct such that it subsequently brings about the intended result, as opposed to intending the
result itself. The Restatement (Second) of Torts provides the best illustration of the element act.
"[I]f the actor, having pointed a pistol at another, pulls the trigger, the act is the pulling of the
trigger and not the impingement of the bullet upon the other person." 89 If the act is to pull the
trigger, the intent would be the actor's desired goal that he or she wishes to achieve by pulling
that trigger. According to Prosser, intent in this context means (1) . . . a state of mind (2) about
consequences of an act (or omission) and not about the act itself, and (3) it extends not only to
having in the mind a purpose (or desire) to bring about given consequences but also to having in
mind a belief (or knowledge) that given consequences are substantially certain to result from the
act. 90
In order to prove intent, the actor must show that the defendant chose to commit a particular

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action, and in so doing, intended or knew with substantial certainty that such an action would
bring about the undesired result. 91 The actor who pulls the trigger for the desired purpose of
causing harm to a particular person is said to intend such conduct. 92 The actor who pulls the
trigger for enjoyment purposes only, but does so in a crowded area, is also said to have intended
such conduct for purposes of proving intentional torts since the actor knew with substantial
certainty that such conduct would bring [*37] about the undesired wrong. 93 This requirement
of intent is the prerequisite for all intentional torts. 94
[]
C. The Corresponding Crimes
Criminal law assigns blame to those who engage in intentional conduct. Like tort law, criminal
convictions require proof that the defendant chose to engage in conduct and that, by engaging in
that conduct, intended or knew with substantial certainty that the conduct would result in a
wrong against society. 122 While criminal law also assigns punishment to those who acted
recklessly or negligently, 123 the law seems to reserve the greatest punishment for those who
engage in intentionally wrongful conduct. 124
Much has been made of the intent levels in criminal law. Early on--and still in many
jurisdictions--intent was divided between specific and general intent. 125 Courts define specific
intent as an actual purpose or goal to engage in a particular type of conduct or a deliberate choice
to ignore a certainty of harm. 126 General intent translates into a sense of risk-taking or
carelessness on the part of the defendant. 127
The Model Penal Code ("MPC") has created four classifications of an actor's mindset as a means
to better delineate between specific and general intent: purposeful, knowing, reckless, and
negligent. 128 "Purposeful" is defined as a conscious goal to engage in particular conduct, 129
while "knowing" requires proof that the defendant was substantially certain that such a result
would occur from a particular type of conduct. 130 The torts of assault, battery, and false
imprisonment require proof of intent similar to general intent in that the actor is responsible if he
or she intended the conduct or knew with substantial certainty that such an outcome would occur.
131
The Restatement's definition of intent corresponds quite closely with the MPC's definition of
purposeful and knowingly. Thus, proof of the actor's awareness is virtually identical in each
instance.
[]
II. THE NON-CRIMINALIZED TORT: INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS (IIED)
According to the Restatement, one who intentionally causes severe emotional distress to another
is liable "(a) for such emotional distress, and (b) for bodily harm resulting from it." 159 Stated
another way, IIED occurs when "[o]ne who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another is subject to liability for such emotional
distress, and if bodily harm to the other results from it, for such bodily harm." 160 IIED sanctions

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those whose conduct is so outrageous that it brings about mental and/or physical pain and
suffering. 161 Additionally, IIED is the only intentional tort that allows recovery from one whose
goal is limited to creating emotional havoc.
The tort of IIED is relatively new, as compared to the traditional common law torts of assault,
battery and false imprisonment, all of which date back to before the Sixteenth Century. 162
Wilkinson v. Downton, 163 a late nineteenth century case, presented the first instance when a
court allowed recovery for a woman, against whom a mean-spirited practical joke was played.
As a consequence of the joke, the woman suffered "violent shock to her nervous system,
producing committing and other more serious and permanent physical consequences entailing
weeks of suffering and incapacity . . . ." 164 The court allowed the plaintiff to recover for the
harm she suffered as a result of the defendant's practical joke. 165
Almost 150 years after Wilkinson, the tort of IIED appeared in a 1948 supplement of the
Restatement of Torts. 166 The California Supreme Court first applied the Restatement's definition
four years later when it decided the landmark case of State Rubbish Collectors Ass'n v. Siliznoff.
167
Courts across the country followed California's lead, and today every state has recognized the
independent IIED tort and "adopted [the] Restatement (Second) of Torts section 46 in some
form." 168
Like assault, battery, and false imprisonment, an individual is responsible for IIED if it is his
intention to inflict severe emotional distress or he knows with substantial certainty that severe
emotional distress will arise as a result of such conduct. 169 Under the Restatement approach, the
defendant must not only intentionally cause severe emotional distress, but such conduct must
also be deemed "extreme and outrageous." 170 The Restatements have never attempted to provide
a definition of "outrageous" conduct, stating rather that something [*40] is outrageous if "the
recitation of the facts to an average member of the community would . . . lead [the person] to
exclaim, "Outrageous!" 171 Scholars and courts, however, agree that liability for this tort is
reserved for the severest cases where the defendant's conduct goes "beyond all possible bounds
of decency . . . to be regarded as atrocious, and utterly intolerable in a civilized community." 172
"Liability. . . does not extend to mere insults, indignities, threats, annoyances, petty oppressions,
or other trivialities." 173 As a result, severe emotional distress can be found only when "the
distress inflicted is so severe that no reasonable person could be expected to endure it." 174
III. A CALL TO CRIMINALIZE INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS
The modern formulation of IIED permits a plaintiff to recover for injuries resulting from a
defendant's intentional use of extreme and outrageous conduct if that conduct results in mental
anguish or physical harm. A logical formulation of the proposed crime would be patterned after
the 1948 Restatement of Torts. Thus, an actor would be subject to criminal prosecution if he
purposely or knowingly caused emotional distress through extreme and outrageous conduct
thereby causing mental anguish or psychic injury. The conduct must be so extreme as to go
"beyond all possible bounds of decency," and "the mental anguish suffered by plaintiff [must be]
serious and of a nature that no reasonable person could be expected to endure it." 175

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Like the criminalized torts of assault and false imprisonment, the criminalized version of IIED
would penalize a defendant when a victim suffers emotional or psychic damage as a consequence
of the defendant's intentional conduct. Criminalized IIED would also result in the same type of
physical harm that is required for proof of the prima facie elements of the criminalized tort of
battery. The commonality of the harm caused by a different type of conduct supports criminal
punishment for IIED.
Neuroscientific evidence supports the conclusion that verbal assaults can manifest themselves in
physical pain. 176 Thus, where one assaults another with outrageous verbal comments, the
plaintiff might ultimately experience physical pain. This intentional infliction of physical pain is
the type of harm that society seeks to punish through the crime of battery.
Since IIED creates the same type of harm as society has sought to redress through
criminalization of the other intentional torts, it would seem consistent to criminalize IIED.
Criminalizing IIED would further the retributive and deterrent goals of punishment, particularly
at a time when new technology communicates outrageous and even horrendous conduct for
which there seems no viable punishment in criminal law. 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 worthy of criminal punishment.
A. Similarities Between IIED and the Criminalized Intentional Torts
The proposed criminalization of IIED would require proof of the same type of intent as the other
criminalized intentional torts. 177 Like assault, battery, and false imprisonment, the state can only
seek punishment for IIED, and a plaintiff can only recover for the IIED, upon proof that the
defendant intended to cause the harm or was substantially certain that harm would result from his
conduct. 178 But while the intent and the harm are the same, the act of IIED, use of extreme and
outrageous conduct, is distinct from the other criminalized intentional torts.
Once the conduct is proven, it is incumbent upon the prosecution to prove that harm resulted
from that conduct. Harm can be both mental and physical. The mental anguish that is punishable
through the criminalized torts of assault and false imprisonment is equally present in intentional
infliction of emotional distress. 179 A tortfeasor is only responsible for IIED if his actions were
the proximate cause of a psychic injury. 180 Prosser calls both assault and false imprisonment
crimes of mental anguish. It seems, then, that mental anguish, which the law seeks to curb, is
equally present in IIED. 181
The pain inflicted through IIED can result in the type of harm criminalized in battery. The crime
of battery involves proof of direct physical harm. 182 Harm can include a gunshot wound, 183 a
kick upon another, 184 or something as slight as intentionally blowing smoke in another's face. 185
When recovering for IIED, many jurisdictions require proof of severe physical manifestations of
emotional harm. 186 In doing so, the law recognizes that extreme and outrageous conduct can
indeed cause the type of harm that is recoverable through the other criminalized torts.
New scientific research supports the conclusion that the extreme and outrageous verbal conduct
meted [*41] out through verbal assaults can inflict the same type of physical harm that is

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prohibited by criminal battery. Neuroscientific studies show that verbal abuse can bring about
physical symptoms, which in turn cause physical pain. 187 Actual measurable neurochemical
changes can occur in the amygdala--the part of the brain that performs a primary role in
processing emotional reactions--when an individual is verbally assaulted or experiences some
other type of emotional trauma. 188 The amygdala instantly responds by inducing a series of
physiologic reactions including rapid heart rate, palpitations, sweating and increased blood flow
to large muscle groups. 189 These physiological changes in the brain, which occur congruently
with emotional harm, become a form of physical pain, from which the victim clearly suffers. 190
Studies demonstrating the relationship between psychological and verbal abuse and disorders
such as depression, anxiety, and post-traumatic stress disorder (PTSD) further support the
conclusion that IIED can result in the type of physical harm which criminal law seeks to curb by
punishing for battery or aggravated assault. A person suffering from depression may also suffer
from "persistent aches or pains, headaches, cramps or digestive problems . . ." according to the
National Institute of Mental Health. 191 Exacerbating this disease through a verbal assault can
result in more severe physical symptoms that often accompany anxiety disorders include
"fatigue, headaches, muscle tension, muscle aches, difficulty swallowing, trembling, twitching,
irritability, sweating, nausea, lightheadedness, having to go to the bathroom frequently, feeling
out of breath, and hot flashes." 192
In other instances, while the outrageous conduct of IIED might not immediately cause physical
pain, specific studies confirm that, despite the non-physical nature of verbal abuse, abuse from
IIED can be as damaging as physical harm. 193 In 1990, Psychologists Nicole M. Capezza and
Ximena B. Arriaga conducted a study, in which they found that seventy-two percent of 234
female victims of both physical and psychological abuse indicated that they were more
negatively impacted by the psychological abuse than the physical abuse. 194 Regarding their
findings, the authors stated, "[t]he results obtained in the present study clearly indicate that
psychological [abuse] is, with some variations, as detrimental to women's mental health as is
physical violence." 195
The seemingly similar requirements of intent and harm beg the question of why it would be
necessary to criminalize IIED. The need for punishment lies in the fact that the act element of
IIED is markedly different from assault, battery and false imprisonment; more importantly,
punishment for this type of act does not really exist in most jurisdictions. 196
Assault and battery penalize the actor who intends to cause direct physical harm. Pointing a gun
and missing satisfies the act element of assault. Pointing a gun and hitting satisfies the act
element of battery or aggravated assault. The act element of false imprisonment is satisfied by
the actor who voluntarily chooses to confine another or to make one feel confined. For example,
locking car doors and speeding can satisfy the act element of false imprisonment. 197
[]
B. Advancing the Goals of Punishment
[*42] Criminalizing IIED would advance the goals of society's interest in curbing harmful

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conduct. By adopting the newest criminalized intentional tort, jurisdictions would be sending a
message that conduct which mentally infringes on others' freedom from harm is intolerable.
Punishment would allow society to seek just deserts from those who engage in acts that are
outrageous by traditional standards. Moreover, punishing IIED would send a message to
individuals and the general population that such conduct is intolerable.
i. What to Punish
[]
Criminalizing IIED would also permit punishment in other instances, including verbal domestic
abuse or cyber bullying. Criminalizing the use of spoken and written words that cause severe
damage to another would fall within society's goal to provide citizens with a reasonable
expectation of quiet enjoyment and liberty.
Verbal abuse is not afforded the same treatment under the criminal law as physical abuse. 212
Many jurisdictions do not criminalize verbal abuse. In those that do, it is under the guise of
harassment. 213 Yet verbal abuse is a serious assault on one's personal well-being. 214
Additionally, studies confirm that verbal abuse often leads to physical abuse. 215 Criminalizing
verbal abuse would serve to prevent the commission of a greater crime. 216
[]
Criminalizing IIED would also provide meaningful punishment to the crime of cyber stalking. In
Lori Drew's case, the defendant imparted words, that on their face, were seemingly innocuous.
The defendant secured a "My Space" page under a false name and then pretended that she was a
teenage boy with a crush on the 13 year-old girl. 219 The woman later sent spiteful messages to
the girl, including one that said "the world would be a better place without you." 220 A reasonable
jury could find under the circumstances that Ms. Drew's conduct went beyond the bounds of
decency. In fact, new accounts report that the jury wanted to convict Ms. Drew of felonies that
would allow punishment of up to twenty years in prison. 221 However, the available laws did not
support their desired goal. 222
[]
ii. Why Punish
Given that IIED causes the same type of harm as assault, battery, and the other intentional torts,
the issue becomes whether criminalizing IIED would further the principles of punishment that
drive the American criminal justice system. Two theories largely govern the reasons for
assessing punishment: retribution and deterrence. 227 Criminalizing IIED would advance each of
these theories.
a. Retribution
Application of Professor Nozick's equation for evaluating the instances appropriate for

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retribution supports the criminalization of IIED. As previously noted, criminal punishment
deserved = r x H, where H is the magnitude of the wrongness or harm and r is the degree of
responsibility. 228 The high magnitude of harm and the defendant's responsibility in the
intentional outrageous conduct of IIED highlight the well-deserved need for retribution against
such conduct.
The r is this equation is easily satisfied. People are responsible for IIED only if they intend to
commit the outrageous conduct that causes harm or they know with substantial certainty that
such conduct will cause another to suffer from IIED. 229 This intent translates into a conscious or
willful desire to bring about a harmful result. 230 That they chose to engage in such conduct
reflects the high level of responsibility on their part.
[]
IIED also imposes the same type of harm as the other intentional torts, thus the H in Nozick's
equation [*44] is as compelling for IIED as it is in other tort-based crimes. Particularly, IIED
shares the sense of mental anguish that assault and false imprisonment criminalize. 238 As noted
above, psychological or verbal abuse can be as damaging as any physical type of harm. 239
Developments in neuroscience indicate a strong link between verbal assault and emotional harm.
240
This high degree of provable physical harm meets the H prong of Nozick's formula.
Therefore, the high magnitude of harm to the victim and the strong degree of responsibility on
the part of the defendant compel criminalization of IIED.
Nozick's theory is ideal for cyber-stalkers. Individuals who write directed e-mails or set up false
accounts do so with the highest level of intention. The harm cyber-stalkers cause can go far
beyond annoyance and may rise to the level of death. Under Nozick's theory, such conduct is
most suitable for punishment because H, or harm, is at its greatest.
b. Deterrence
Criminalizing IIED is equally supported by the theory of deterrence. Deterrence advocates that
an individual be punished as an example either to himself or to others because the individual's
conduct cannot be tolerated. Ms. Drew intentionally caused a child to suffer by creating a fake
internet "friend" to lure the girl in and then trick her, acting in a way that society should
discourage. Her actions caused horrible public outcry, in part because of the unnecessary and
irreversible consequences of her actions and in part because there were few criminal laws under
which she could be punished. 242 To the extent that one assumes that deterrence works to
encourage members to conform to society's laws, 243 punishing this woman at the criminal level
could deter others from committing similar harmful acts.
[]

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http://www.opencongress.org/bill/111-h1966/text

6. H. R. 1966: A Bill to Amend Title 18, United States Code,


with Respect to Cyberbullying
April 2, 2009
111th Congress, 1st Session, H. R. 1966
In the House of Representatives, Ms. Linda T. Sanchez of California (for herself, Ms. Kaptur, Mr. Yarmuth, Ms.
Roybal-Allard, Mrs. Capps, Mr. Bishop of New York, Mr. Braley of Iowa, Mr. Grijalva, Mr. Hare, Mr. Higgins, Mr.
Clay, Mr. Sarbanes, Mr. Davis of Illinois, Mr. Courtney, and Mr. Kirk) introduced the following bill; which was
referred to the Committee on the Judiciary

To amend title 18, United States Code, with respect to cyberbullying.


Be it enacted by the Senate and House of Representatives of the United States of America
in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the Megan Meier Cyberbullying Prevention Act.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Four out of five of United States children aged 2 to 17 live in a home where
either they or their parents access the Internet.
(2) Youth who create Internet content and use social networking sites are more
likely to be targets of cyberbullying.
(3) Electronic communications provide anonymity to the perpetrator and the
potential for widespread public distribution, potentially making them severely
dangerous and cruel to youth.
(4) Online victimizations are associated with emotional distress and other
psychological problems, including depression.
(5) Cyberbullying can cause psychological harm, including depression; negatively
impact academic performance, safety, and the well-being of children in school;
force children to change schools; and in some cases lead to extreme violent
behavior, including murder and suicide.
(6) Sixty percent of mental health professionals who responded to the Survey of
Internet Mental Health Issues report having treated at least one patient with a
problematic Internet experience in the previous five years; 54 percent of these
clients were 18 years of age or younger.
SEC. 3. CYBERBULLYING.
(a) In General- Chapter 41 of title 18, United States Code, is amended by adding at the
end the following:
Sec. 881. Cyberbullying
(a) Whoever transmits in interstate or foreign commerce any communication, with the
intent to coerce, intimidate, harass, or cause substantial emotional distress to a person,

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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.
(b) As used in this section -(1) the term communication means the electronic transmission, between or
among points specified by the user, of information of the users choosing, without
change in the form or content of the information as sent and received; and
(2) the term electronic means means any equipment dependent on electrical
power to access an information service, including email, instant messaging, blogs,
websites, telephones, and text messages..

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http://judiciary.house.gov/hearings/pdf/Silverglate090930.pdf

7. Concerning The Megan Meier Cyberbullying Prevention


Act (H.R. 1966); The Adolescent Web Awareness Requires
Education Act (H.R. 3630)
September 30, 2009
Testimony of Harvey A. Silverglate Criminal defense and civil liberties trial lawyer; Author; Adjunct Scholar,
Cato Institute
Congress of the United States, House of Representatives; Committee on the Judiciary; Subcommittee on Crime,
Terrorism, and Homeland Security; Hon. Bobby Scott, Chairman

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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this law would represent one further step in that dangerous direction. But arguing
overcriminalization is not my purpose today.
Rather, I wish to focus on another, often overlooked aspect of the proposed Cyberbullying
legislation, growing out of its vagueness.
My assessment and criticism of the bill lie primarily in the area of due process of law enshrined
in the Fifth Amendment, with consequent repercussions for First Amendment free speech rights.
I believe that this law would not be comprehensible to the average citizen and, indeed, to the
average lawyer or judge for that matter. It does not help understanding, of course, when vague
terms such as intimidate, harass, or cause substantial emotional distress are used in a criminal
statute to define verbal conduct that can land one in federal prison. A typical citizen cannot be
expected to understand how and where to draw a line, not only because of the inherent vagueness
of the terms, but also because in this instance the prohibited conduct involves solely speech
and speech, citizens are taught to believe from kindergarten on, is (or at least is supposed to be)
free in America.
Hence, it is the combination of Fifth Amendment due process notions and First Amendment free
speech doctrine that makes this proposed legislation particularly lethal to liberty interests. This
presents us all legislators and citizens, laymen and lawyers, political activists, scholars, and
everyone who speaks his or her mind virtually every day in this often fractious (but thankfully
free) nation of ours with a profound challenge: How can we protect legitimate societal interests
without posing traps for the unwary innocent?
My perspective on this, as Ive said, is a product of four decades of experience as a criminal
defense and civil liberties trial lawyer, as well as a civil liberties activist and a frequent writer on
these phenomena. In these capacities, I have dealt directly with the socially unhealthy
curtailments of free speech and of due process by the uses and misuses of various kinds of
regulations aimed at curtailing harassment, hostile behavior, and other such vague terms
around which this legislation is built. (In the context of this legislation, it is likely that the term
behavior is referring primarily, if not exclusively, to speech.) Often born of good intentions,
these legislative efforts have, almost without fail, produced unintended consequences, including
excessive and unfair prosecutions as well as the inhibition of the sometimes unruly verbal
interactions that are, and should be, the product of a free society.
[]
Indeed, a 1992 incident at my alma mater, the Harvard Law School, demonstrates in very stark
terms the problematic results of punishing, or even merely threatening to punish, harsh but
constitutionally-protected expression. After the tragic murder of Professor Mary Joe Frug, a
feminist legal scholar at the New England School of Law, the Harvard Law Review published
one of her unfinished articles, a spirited and sometimes offensive critique of law and mores from
a radical feminist perspective. In response, a group of students on the Law Review staff wrote a
biting parody of the article a critique not only of the ideas presented in the piece, but also of the
decision by the august Harvard Law Review to run a piece of unfinished scholarship for what
some deemed unacceptably politically correct reasons. An outcry against the student parodists
ensued. A group of Harvard Law School professors belonging to the schools disciplinary

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committee known as the Administrative Board concluded that such verbal harassment
could be penalized only if there were a regulation or code prohibiting such speech.
The Harvard Law faculty, in a moment when emotion clearly overcame loyalty to academic
freedom and free speech principles, promptly adopted such a speech code, dubbed a sexual
harassment code. Harvard Law School now has the equivalent of its own bullying statute, and
the state of parody and discourse at the school is much the poorer. Indeed, the annual April
Fools Day publication of the satiric Harvard Law Review, which contained the aforesaid parody
of the feminist legal scholars article, ceased publication shortly thereafter.2 Parody and satire
are, of course, very important tools of critical thought and political and social expression in our
society generally, and in academia in particular. Aside from the untoward social, political and
intellectual consequences of discouraging the free exchange of ideas by means of a code so
vague that students speak out on hot button topics at their own considerable risk, one needs to
consider the unfairness of threatening to ruin a students educational record because he or she
operated on the misunderstanding that America is a free country and that campuses, in particular,
value uninhibited and robust speech.
Such is the free speech mischief encountered by an academic institutions attempt to outlaw,
under the rubric of harassment, all manner and kind of unpleasant, acerbic, unsettling speech.
The problem has arisen at many other campuses, and the judicial response, when litigation has
been initiated by students, has been unambiguous: several federal district courts and courts of
appeals have rejected the use of such vague terms as harassment in the context of restrictions
on unpleasant campus speech.3
Consider, for example, an incident in 2008 at Indiana University Purdue University
Indianapolis (IUPUI). A university employee/student was found guilty of racial harassment for
reading a book titled Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux
Klan. In a letter announcing and justifying the charges, the IUPUI administration explained that
the student used extremely poor judgment by insisting on openly reading the book related to a
historically and racially abhorrent subject in the presence of your Black coworkers.4 Facing
public pressure, and recognizing the questionable legal grounds on which the decision stood,
IUPUI dropped the harassment charges in May 2008. This episode exemplified how a campus
harassment code can be stretched to cover activity as innocuous as reading literature on a
controversial subject.
To be sure, there are differences between a university setting (where freedom of inquiry and of
expression are of the utmost importance) on the one hand, and that of society at large (where
reasonable restrictions are more tolerable). Nonetheless, my experience with suppression of
speech on campuses, and the case law striking down these harassment codes, are pertinent to this
bill. Whether on a campus quad or in a public park, the same line of reasoning applies: In a free
society, people will be offended, feelings will be hurt. Yet separating unsavory speech even
quite clearly disagreeable and offensive speech from criminal conduct is absolutely imperative
in a democratic system that celebrates freedom of expression.
The Supreme Court of the United States, in a unanimous decision in the 1988 case of Hustler
Magazine, Inc. vs. Falwell, 485 U.S. 46, reaffirmed that even painful parody is constitutionally

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protected by the First Amendment. In that landmark case, Hustler publisher Larry Flynt used a
fake Compari liquor ad to suggest that his ideological adversary, Reverend Jerry Falwell, had
lost his virginity in a drunken encounter with his own mother in an outhouse. The point made by
the justices was, and remains, that the First Amendment must protect even very offensive and
unsettling speech. From the viewpoint of history it is clear that our political discourse would
have been considerably poorer without such depictions, concluded Chief Justice William
Rehnquist. This was in a civil litigation context where a defamation plaintiff was claiming that
he was the victim of Flynts magazine article that constituted the intentional infliction of
emotional distress. A unanimous Supreme Court, recognizing that indeed painful distress was
inflicted, nevertheless reversed a civil money judgment against the publisher. It is perfectly
obvious that a criminal charge would have fared even more poorly under constitutional scrutiny.
The Subcommittee is now considering a bill that would criminally penalize painful language that
seeks to inflict distress. The bill would apply only to speech, rather than to the myriad physical
actions that typically accompany a harassment claim in, for example, the workplace. Hence, not
only would enactment of this statute provoke a veritable storm of constitutional litigation, but it
would, even in the absence of litigation, create a chill over a vast expanse of unpleasant but
protected speech. And, it bears repeating, the definitions used are exceedingly vague.
Current law, both state and federal, bans a considerable array of speech that society, state and
federal legislatures, and the courts agree constitutes either a criminal threat (e.g., extortion) or a
genuine tort. Furthermore, the law governing free speech has for a very long time outlawed, in
either a criminal or civil arena, speech that might otherwise be protected but that transgresses
acceptable time, place and manner requirements. For example, it would be constitutionally
protected to drive up and down a street at 3 oclock in the afternoon (appropriate time), with a
loudspeaker (effective manner, given the need to have ones political message heard), in the
Downtown part of a city (appropriate place for public campaigning) touting ones preferred
candidate for political office. The same message would be considered a tort or even (in an
extreme case) a crime (such as disturbing the peace) if one were to deliver it via loudspeaker in
a residential neighborhood at 3 oclock in the morning.
Those prepared to enact this bill must ask themselves whether the protection of speech (in
particular) from undue curtailment is somehow invalidated simply because the means employed
to transmit unwelcome messages happen to be electronic. In other words, if this bill were drafted
with identical language, but electronic means were replaced by printed means, would the
constitutional conflicts be any more, or less, apparent? Such a bill would expose the ranks of
newspaper reporters, for example, to criminal prosecution for causing substantial emotional
distress in fulfilling their democratic watchdog responsibilities. An expos of corrupt (or even
some ordinary) political activity surely causes emotional distress to its subject. Should these
same words, when transmitted via electronic means, cause their author to fear the wrath of
federal criminal law? It is vastly important, as our society becomes increasingly technologically
oriented, that protections of our fundamental freedoms be applied to new modes of
communication as well as to the traditional modalities.
One may claim that curtailing political expression is not the intent of this legislation; instead, it is
meant to stop cyber bullies from causing distress to minors. Nowhere in the language of this

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proposed legislation, however, can any such assurance be found. To have Congress jump into the
fray surrounding the control of offensive messages sent over electronic media especially by
means of a legislative vehicle which uses a vague concept like hostile behavior and
harassment that causes substantial emotional distress would be more of a trap for the
unwary than a useful social tool.
Not only is the proposed Cyberbullying statute vague by its own terms, but the array of speech
that it would discourage surely is vast, since people tend to severely limit their speech when they
even think that they might otherwise roam into prohibited territory. Thus, vague statutes also
function, invariably, as overbroad prohibitions in that in practice they prevent an array of speech
far broader than the presumed statutory target.
[]
There is, in my view, currently a veritable epidemic caused by the proliferation of prosecutions
based upon vague federal statutes. I was readily able, from my own litigation experience as well
as from research done on other cases, to pinpoint myriad inappropriate prosecutions of many an
unwary innocent citizen in the medical community, the medical device and pharmaceutical
manufacturing industry, investment houses, bankers, lawyers, accountants and auditors,
academics, artists, newspaper reporters, merchants, as well as public officials. The time has
come, it seems to me, to reduce or eliminate rather than to enlarge the number of these
affronts to liberty and fair treatment of our citizens. It is difficult enough for a law-abiding
citizen to keep track of all of his or her clear legal obligations. We citizens should not be faced
with an ever-growing number of vague statutes that threaten liberty by failing to define precisely
what conduct might constitute yet another new felony.
[]

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http://volokh.com/2008/06/05/the-crime-of-severe-repeated-and-hostile-communication-withthe-intent-to-cause-substantial-emotional-distress/

8. The Crime of Severe, Repeated, and Hostile


Communication with the Intent to Cause Substantial
Emotional Distress?
June 5, 2008
By Eugene Volokh Gary T. Schwartz Professor of Law at UCLA School of Law
The Volokh Conspiracy weblog

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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http://www.huffingtonpost.com/rep-linda-sanchez/protecting-victims-preser_b_198079.html

9. Protecting Victims, Preserving Freedoms


May 6, 2009
By Congresswoman Linda T. Snchez U.S. Congresswoman for the 39th Congressional District of California
The Huntington Post

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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http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1883&ChapterID=53

10. Act 135: Harassing and Obscene Communications Act


Effective: August 11, 2009
720 Illinois Compiled Statutes 135/1-2

1-2. Harassment through electronic communications.


(a) Harassment through electronic communications is the use of electronic communication for
any of the following purposes:
(1) Making any comment, request, suggestion or proposal which is obscene with an intent
to offend;
(2) Interrupting, with the intent to harass, the telephone service or the electronic
communication service of any person;
(3) Transmitting to any person, with the intent to harass and regardless of whether the
communication is read in its entirety or at all, any file, document, or other
communication which prevents that person from using his or her telephone service or
electronic communications device;
(3.1) Transmitting an electronic communication or knowingly inducing a person to
transmit an electronic communication for the purpose of harassing another person who is
under 13 years of age, regardless of whether the person under 13 years of age consents to
the harassment, if the defendant is at least 16 years of age at the time of the commission
of the offense;
(4) Threatening injury to the person or to the property of the person to whom an
electronic communication is directed or to any of his or her family or household
members; or
(5) Knowingly permitting any electronic communications device to be used for any of the
purposes mentioned in this subsection (a).
(b) As used in this Act:
(1) Electronic communication means any transfer of signs, signals, writings, images,
sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectric or photo-optical system. Electronic communication
includes transmissions by a computer through the Internet to another computer.
(2) Family or household member includes spouses, former spouses, parents, children,
stepchildren and other persons related by blood or by present or prior marriage, persons
who share or formerly shared a common dwelling, persons who have or allegedly share a
blood relationship through a child, persons who have or have had a dating or engagement
relationship, and persons with disabilities and their personal assistants. For purposes of
this Act, neither a casual acquaintanceship nor ordinary fraternization between 2
individuals in business or social contexts shall be deemed to constitute a dating
relationship.
(c) Telecommunications carriers, commercial mobile service providers, and providers of
information services, including, but not limited to, Internet service providers and hosting service
providers, are not liable under this Section, except for willful and wanton misconduct, by virtue
of the transmission, storage, or caching of electronic communications or messages of others or

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by virtue of the provision of other related telecommunications, commercial mobile services, or
information services used by others in violation of this Section.
2. Sentence.
(a) Except as provided in subsection (b), a person who violates any of the provisions of Section
1, 1-1, or 1-2 of this Act is guilty of a Class B misdemeanor. Except as provided in subsection
(b), a second or subsequent violation of Section 1, 1-1, or 1-2 of this Act is a Class A
misdemeanor, for which the court shall impose a minimum of 14 days in jail or, if public or
community service is established in the county in which the offender was convicted, 240 hours
of public or community service.
(b) In any of the following circumstances, a person who violates Section 1, 1-1, or 1-2 of this Act
shall be guilty of a Class 4 felony:
(1) The person has 3 or more prior violations in the last 10 years of harassment by
telephone under Section 1-1 of this Act, harassment through electronic communications
under Section 1-2 of this Act, or any similar offense of any state;
(2) The person has previously violated the harassment by telephone provisions of Section
1-1 of this Act or the harassment through electronic communications provisions of
Section 1-2 of this Act or committed any similar offense in any state with the same victim
or a member of the victim's family or household;
(3) At the time of the offense, the offender was under conditions of bail, probation,
mandatory supervised release or was the subject of an order of protection, in this or any
other state, prohibiting contact with the victim or any member of the victim's family or
household;
(4) In the course of the offense, the offender threatened to kill the victim or any member
of the victim's family or household;
(5) The person has been convicted in the last 10 years of a forcible felony as defined in
Section 2-8 of the Criminal Code of 1961; [FN1]
(6) The person violates paragraph (4.1) of Section 1-1 or paragraph (3.1) of subsection (a)
of Section 1-2; or
(7) The person was at least 18 years of age at the time of the commission of the offense
and the victim was under 18 years of age at the time of the commission of the offense.

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8 First Amend. L. Rev. 1, 48-49 (2009)

11. Kiddie Crime? The Utility of Criminal Law in


Controlling Cyberbullying
Fall, 2009
By Susan W. Brenner NCR Distinguished Professor of Law and Technology, University of Dayton School of
Law; and Megan Rehberg, J.D. University of Dayton School of Law
First Amendment Law Review, North Carolina Law Review Association

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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earlier: that cyberbullying should be distinguished from simple adult-on-adult aggression. But
while there are important empirical differences between K-12 students and adults who attend
post-secondary educational institutions, every educational context can generate the dynamics that
give rise to bullying and cyberbullying. 5 We therefore do not limit the educational context
element of our definition to the K-12 sector; our definition encompasses cyberbullying in any
educational institution, regardless of the age of those who attend. Our limitation of the education
sector, however, distinguishes our definition from others that require, for example, only "willful
and repeated harm." 6 Our definition allows us to consider the possibility that traditional criminal
law - which is generally adequate to deal with generic adult-on-adult cyberbullying - may not be
adequate when the cyberbullying involves adults who are also students.
Simply defining cyberbullying is not enough. While our definition captures the distinctive
elements of cyberbullying, it also assumes a unitary phenomenon. That is, like all definitions, it
assumes that cyberbullying involves a single dynamic: bully and victim. That assumption is a
common feature of substantive criminal law. Murder, for example, involves the reciprocal roles
of murderer and victim, robbery involves the reciprocal roles of robber and victim, and so on. It
also involves a power imbalance: in traditional [*4] crimes, the perpetrator has some advantage
- greater strength, a weapon, information that can be used to blackmail someone - that gives him
the ability to harm the victim.
Real-world bullying and cyberbullying also involve a power imbalance between bully and
victim, 7 but the imbalance is more nuanced because cyberbullying, unlike its real-world
counterpart, is predicated upon the infliction of non-physical harm. The reliance on non-physical
harm alters the power imbalance between bully and victim because the participants in an
educational institution have different roles (teacher and student), and these roles usually
determine the respective power positions of the participants in a given cyberbullying dynamic.
When a cyberbully targets another student, the power imbalance between the two is likely to be
indistinguishable from the imbalance between a real-world bully and his hapless victim; but
when a cyberbully targets a teacher, the power imbalance is likely to be less uneven given the
teacher's position in the educational institution.
Differences in the power imbalance in the cyberbullying dynamic are an important factor in
assessing the propriety of using criminal law to deal with cyberbullying. We therefore developed
a taxonomy of cyberbullying that captures the nuanced power imbalances that can occur in this
phenomenon: student-on-student cyberbullying; student-on-teacher cyberbullying; teacher-onstudent cyberbullying; and teacher-on-teacher cyberbullying. We examine each category below.
[]
II. Criminal Law and Cyberbullying
"Cyberbullying should be a crime" 71
As noted earlier, the frustration of dealing with cyberbullying has led some educators to call for
the use of criminal sanctions against those who engage in such activity. 72 In this section, we
analyze the extent to which existing criminal offenses apply to cyberbullying; the sections below

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each examine an offense or offenses that might apply to cyberbullying. 73 Each section is
divided into two parts: The first outlines the elements of a particular offense (or, in one instance,
related offenses); the second analyzes the applicability of the offense(s) to cyberbullying.
A. Stalking and harassment
Since most states do not have criminal cyberbullying laws, 74 prosecutors who want to impose
criminal liability on cyberbullies [*16] often rely on stalking and harassment statutes. In the
first section below, we explain how these statutes evolved and the conduct they outlaw. In the
next section we analyze their suitability for use against cyberbullies.
1. The Crimes
Harassment is the older of these related crimes. The criminalization of harassment began about a
century ago, when it became apparent that telephones could be used for less-than-legitimate
reasons. The initial problem occurred when callers used "vulgar, profane, obscene or indecent
language." 75
Concerned about the "harm" being done to the women and children who received such calls,
states responded by adopting statutes that created the crime of "telephone harassment." 76 While
telephone harassment tended to focus only on obscene or threatening phone calls, some states
broadened their harassment statutes to encompass more general conduct, such as "anonymous or
repeated telephone calls that are intended to harass or annoy." 77 This approach to harassment
still survives in the basic harassment statutes of many states. 78
The basic harassment statutes in effect until the last decade of the twentieth century generally
failed to encompass more problematic conduct, such as touching someone, insulting them, or
following them. 79 That began to change in 1989, when actress Rebecca [*17] Schaeffer was
stalked and killed by an obsessive fan. 80 Shocked by the Schaeffer murder and five similar
murders, California legislators passed the nation's first criminal stalking law in 1990. 81 By
1993, forty-eight states had followed suit. 82 In 1999, New York became the final state to adopt
a criminal stalking statute. 83
Most of the state stalking statutes followed the California model, 84 which essentially defines
stalking as aggravated harassment:
Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously
harasses another person and who makes a credible threat with the intent to place that person in
reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the
crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by
a fine of not more than one thousand dollars ($ 1,000), or by both that fine and imprisonment, or
by imprisonment in the state prison. 85
The California stalking statute has two actus reus elements: (i) repeatedly following or otherwise
harassing the victim; and (ii) a credible threat to the victim or victim's family. It defines
"harassment" as engaging in a "course of conduct directed at a specific [*18] person that
seriously alarms, annoys, torments, or terrorizes the person and that serves no legitimate

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purpose." 86 The statute defines "credible threat" as a verbal or written threat, ... or a threat
implied by a pattern of conduct or a combination of verbal, written, or electronically
communicated statements and conduct, made with the intent to place the person that is the target
of the threat in reasonable fear for his or her safety or the safety of his or her family, and made
with the apparent ability to carry out the threat so as to cause the person who is the target of the
threat to reasonably fear for his or her safety or the safety of his or her family. 87
California's focus on "credible threat" as an element of stalking led some to characterize stalking
as an inchoate crime, on the premise that the "harm" it addresses is the "murder, rape or battery
that the stalking ... could ultimately produce." 88 Others [*19] argued that stalking is not an
inchoate crime because its concern is the infliction of a distinct "harm." As one law review
article noted, the "harm" stalking laws address is "a product of potential future harm. Stalking is
wrongful because the threat of future violence causes emotional injury to the victim." 89
Florida took a slightly different approach by creating two crimes: basic stalking and aggravated
stalking. 90 The basic stalking offense required that the stalker (i) intend to inflict emotional
"harm" on the victim and (ii) willfully engage in repeated following or harassment of the victim.
91 The aggravated stalking offense added the requirement that the stalker make a "credible
threat" with the intention to cause the victim to fear for his or her safety. 92 Basic stalking was a
misdemeanor, while aggravated stalking was a felony. 93
As society became more familiar with the nuances of the conduct involved in and "harm"
inflicted by stalking, states began to expand the scope of their statutes. As one author noted,
while contemporary stalking statutes still tend to target "credible threats" directed at the victim or
victim's family, many also criminalize conduct that would cause a ""reasonable person' to ...
suffer severe emotional distress." 94 Missouri's statute, for example, states that anyone "who
purposely and repeatedly harasses ... another person commits the crime of stalking," and defines
"harasses" as engaging "in a course of conduct directed at a specific person that serves no
legitimate purpose, that would cause a reasonable person to suffer substantial emotional distress,
and that actually causes substantial emotional distress to that person." 95
The Missouri statute does not define "emotional distress," but other statutes do. The Michigan
stalking statute defines it as [*20] "significant mental suffering or distress that may, but does
not necessarily, require medical or other professional treatment or counseling." 96 The Michigan
statute is very similar to the Missouri statute. It defines stalking as "a willful course of conduct
involving repeated or continuing harassment ... that would cause a reasonable person to feel
terrorized, frightened, ... harassed, or molested and that actually causes the victim to feel
terrorized, frightened, ... harassed, or molested." 97 It defines "harassment" as "conduct directed
toward a victim that includes, but is not limited to, repeated or continuing unconsented contact
that would cause a reasonable individual to suffer emotional distress and that actually causes the
victim to suffer emotional distress." 98
A number of states have similar provisions, 99 and some courts have noted that stalking statutes
are intended to prevent "emotional harm" to victims. 100 And while this is probably not
necessary, a few states have included language in their statutes to make it clear that they apply to
electronic stalking, or cyberstalking. 101 [*21] Such language is probably not necessary

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because the essence of the crime of stalking is, as with other crimes, the perpetrator's engaging in
activity that he or she knows will inflict certain "harm" upon the victim with the purpose of
inflicting such "harm." As long as stalking statutes proscribe the infliction of the prohibited
"harm," the means used to inflict it need not be set out in the statute. 102
While a number of states incorporate harassment into their stalking statutes, either as a way of
defining stalking or as a way of defining a lesser-included offense of stalking, 103 a few have
free-standing harassment offenses that make it a crime to inflict emotional distress on a victim.
Delaware's harassment statute, for instance, makes it a crime to "harass ... another person" by
insulting, taunting or challenging them or engaging "in any other course of alarming or
distressing conduct which serves no legitimate purpose and is in a manner which the person
knows is likely to ... cause a reasonable person to suffer substantial emotional distress." 104
It has been difficult, and arguably problematic, for criminal law to address the infliction of
emotional "harm." 105 The "emotional distress" stalking and harassment statutes represent a
compromise: although they criminalize the infliction of affective "harm," they do not predicate
the imposition of criminal liability purely on self-diagnosed psychic injury. 106 Instead, they
incorporate a "reasonable person" standard to ensure that the imposition of liability is based not
on the idiosyncrasies of a particular individual, but on conduct that can be deemed to inflict an
objectively ascertainable "harm." 107
There is also a federal stalking statute: 18 U.S.C. 2261A. Section 2261A(2) makes it a federal
crime to "kill, injure, harass, or intimidate, or cause substantial emotional distress" to someone or
place the person "in reasonable fear" of death or serious bodily injury to himself, to [*23] a
member of his immediate family, or to his spouse or intimate partner; to use the mail or the
Internet or any other facility of interstate or foreign commerce; or to engage in a course of
conduct that causes "substantial emotional distress" to the victim or places him "in reasonable
fear of the death of, or serious bodily injury" to himself or to any of the persons listed above. 108
The federal statute is therefore both a "credible threat" and an "emotional distress" stalking
statute. The credible threat option might apply to cyberbullying, but the residual option - the
emotional distress option - is more likely to be useful in this context. To convict someone of this
offense, the prosecution will have to prove that he or she intended to cause "substantial
emotional distress" to the victim(s) and used the mail or the Internet to engage in a course of
conduct that caused such distress. 109 The statute does not define "substantial emotional
distress."
2. Use Against Cyberbullying
In analyzing the use of harassment and stalking statutes against cyberbullies, it is useful to divide
cyberbullying into two categories: direct cyberbullying and indirect cyberbullying. Each is
analyzed below.
The cyberbullying tactics we analyze in this section do not rise to the level of a credible threat;
we analyze threats in Part II.D.2, infra. Here we are concerned with communications that cause
the victim to suffer substantial emotional distress (stalking) [*24] or "harass or annoy" him or

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her (harassment). The discussion in the first subsection analyzes the use of harassment or
stalking; the discussion in the second subsection focuses primarily on harassment because the
more stringent harm requirements of stalking make it difficult to prosecute indirect cyberbullying
as stalking. The third subsection provides a general assessment of the potential for using either or
both crimes against cyberbullies.
a. Direct Cyberbullying
This category consists of situations in which the bully directs electronic communications directly
at the victim. It encompasses a cyberbully's use of instant messaging, text or multimedia
messaging, or e-mail intended to have a direct, immediate effect on the victim.
The communications may be directed specifically at the victim, such as messages that call the
victim "fat," "stupid," or a "slut." 110 The messages can be more specifically personal. A few
years ago, a twelve-year-old girl was bullied by a former friend who bombarded her with instant
messages that said things such as "everyone hates you, I hate you, you have no friends." 111
Direct cyberbullies also start rumors (e.g., a female engaged in intercourse or oral sex with one
or more males) among the victim's friends or peer group and use altered versions of messages to
make it appear the victim said things he or she did not. The actions of direct cyberbullies can
aggregate, intentionally or inadvertently. Ryan Halligan, for example, was a Vermont eighthgrader who was the target of an extensive cyberbullying campaign in which one student spread a
rumor that he was gay and a popular female student pretended to [*25] like him, then mocked
him by distributing their instant message exchanges to the whole school. 112
Can those who engage in conduct such as this be prosecuted for stalking or harassment? Direct
cyberbullying satisfies an essential - albeit implicit - requirement of both offenses: it is directed
at a specific victim. Like other crimes against persons, stalking and harassment only encompass
conduct that targets a particular individual; this requirement derives both from the plain language
of the statutes criminalizing stalking and harassment, and from the fact that both offenses
criminalize what is, in effect, an emotional assault. 113
It is therefore at least conceptually possible that stalking and harassment statutes could be used to
prosecute those who engage in direct cyberbullying. The critical question is whether the conduct
involved in direct cyberbullying can establish the mens rea, actus reus, and harm requirements of
stalking or harassment.
Since stalking and harassment are, at least to some extent, evolved inchoate crimes, stalking and
harassment statutes consistently require the highest level of mens rea, i.e., that the perpetrator
acted intentionally, purposely, or willfully. 114 To satisfy this requirement, the prosecution
would have to prove beyond a reasonable doubt that the cyberbully engaged in conduct that was
directed at the victim and was intended to cause the proscribed harm. For many stalking and
harassment statutes, the proscribed harm is substantial emotional distress or emotional distress;
for some harassment statutes, it is conduct that "harasses or annoys" the victim. The prosecutor
will also have to prove beyond a reasonable doubt that the conduct the bully used was capable of,
and did in fact inflict, the proscribed level of harm.

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Satisfying these requirements is likely to be impossible except in the most egregious cases, or
when a prosecution is brought under a harassment statute that requires conduct which merely
"harasses" or "annoys" the victim. 115 How, for example, is a prosecutor to show - beyond a
reasonable doubt - that a cyberbully acted with the purpose of causing his or her victim some
level of emotional distress? The prosecutor may well be able to show that the victim suffered the
requisite level of emotional distress, but we cannot impose criminal liability simply because
someone in fact inflicted emotional distress on another person. We all inflict emotional distress
on others from time to time, sometimes inadvertently, sometimes intentionally.
Establishing the bully's intent, and the causal nexus between that intent and the resultant harm to
the victim, would be critical in a stalking or harassment prosecution predicated on direct
cyberbullying. Many stalking and harassment statues include an element that is designed to
provide the empirical basis for a reasonable inference of such intent: They require that a
perpetrator have purposely engaged in a "course of conduct" directed at a victim. 116 This
incorporates an objective element into the mens rea analysis: a jury can infer the requisite mens
rea (purpose or intent) both from the nature of the defendant's conduct (here, the nature of the
communications used to target the victim) and from its persistence. 117
A prosecutor might, therefore, be able to use a cyberbully's direct engagement in a course of
conduct targeting his or her victim to establish that the perpetrator acted with the requisite mens
rea. That is, a prosecutor could use a bully's persistence in bombarding the victim with harassing
or tormenting messages to support the inference that the cyberbully not only knew the effect the
messages would have on the victim, but wanted to cause this effect. Conversely, it would be very
difficult - probably impossible - for a prosecutor to rely on such an inference in a case in which
the bully sent only a single message, however horrific it might have been. Indeed, the alleged
bully's transmission of a single message could inferentially rebut prosecutorial claims that the
message was intended to inflict emotional distress; the incident lacks the persistence and
consequent implicit calculation present whenever a stalker or harasser consistently bombards the
victim with offensive or unwanted communications. The alleged bully could argue that the
message was the result of a transient fit of temper or pique, not of an intent to cause emotional
distress.
In many instances, the age of the alleged bully might have to be factored into the intent to cause
emotional distress calculus. When an adult engages in a persistent, focused course of conduct
that inferentially demonstrates an intent to inflict some level of emotional distress, it can depending on the facts at issue - be reasonable to infer that this was the adult's purpose. We
attribute a greater level of maturity and an ability to assess the consequences of one's actions to
adults. It may, again depending on the facts at issue, be less reasonable to infer such intent when
the perpetrator is a juvenile. 118
It might be easier for a prosecutor to pursue charges under a harassment statute that makes it a
crime to "harass" or "annoy" [*28] someone, instead of causing emotional distress. 119 Some
of these statutes also include the possibility of "alarming" the victim; many state the alternatives
(e.g., harass, annoy, alarm) severally, which suggests that a prosecution could be predicated on
simply "annoying" someone. 120 That, however, is unconstitutional. In Coates v. Cincinnati, 121
the Supreme Court struck down a city ordinance that made it a crime for three or more persons to

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assemble on a sidewalk and "conduct themselves in a manner annoying to persons passing by."
122 The Court held that the statute was void for vagueness because "conduct that annoys some
people does not annoy others." 123 Courts have consequently held that harassment statutes that
make "annoy" one of several actus reus terms, any of which can be used to hold someone liable
for harassment, are void for vagueness. 124
It would therefore not be possible to prosecute a direct cyberbully for harassment on the ground
that he or she merely "annoyed" the victim. It would probably also not be possible to base such a
prosecution on the premise that the direct cyberbully "alarmed" (or "annoyed" and "alarmed")
the victim, since some courts have held that predicating criminal liability on mere "alarm"
renders a statute void for vagueness. 125 Generally, courts have upheld harassment statutes when
they include some limiting conditions, such as a requirement that the conduct have "no legitimate
purpose" or harm requirements that go beyond merely annoying or alarming the victims. 126
Some have found that a statute's inclusion of a specific intent to harass the victim is also
sufficient to prevent its being held void for vagueness. 127
A prosecutor could probably prosecute a direct cyberbully for harassment if he or she could
show that the cyberbully acted with the specific intent to inflict the proscribed harm (e.g.,
harassment, annoyance, and alarm) and that the conduct at issue had no legitimate purpose. 128
However, prosecutors may also be able to infer specific intent in this context, since harassment
offenses encompass the infliction of a lesser degree of harm than do most stalking statues. While
some harassment statutes allow liability to be predicated upon the transmission of a single
harassing message, 129 it [*30] might be difficult to obtain a conviction under such a statute
when the prosecution was predicated on direct cyberbullying, just as it should be difficult to
obtain a conviction for stalking in the same circumstances.
[]
In sum, prosecutions for stalking or harassment are a potential means of addressing
cyberbullying, at least in the most egregious cases. The stringent mens rea requirements for both
crimes, coupled with the age of the perpetrator(s), will make it difficult, or impossible, to bring
such prosecutions when the conduct involved in the bullying was isolated or sporadic and the
substance tended to be petty rather than malicious.
b. Indirect Cyberbullying
In indirect cyberbullying, the cyberbully does not direct the electronic communications that
constitute the bullying at his or her victim directly. Instead, the bully posts them on MySpace,
Facebook, a specially created website or blog, or some other reasonably public area of
cyberspace. This aspect of indirect cyberbullying gives rise to two issues, neither of which arises
with direct cyberbullying: (1) to what extent did the cyberbully intentionally direct the online
communication(s) at the victim; and (2) to what extent did he or she intend the communication(s)
to be seen by others whose reactions were likely to have a negative impact on the victim? 131
Two recent cases address these issues. In State v. Ellison, 132 high school student Ripley Ellison
was convicted of harassment after she posted a photograph of Savannah Gerhard, a classmate

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(and former best friend), on her MySpace page with the caption "Molested a little boy." 133 The
posting referred to a falling-out the two had when they were in the seventh grade after Ripley's
younger brother accused Savannah of molesting him. 134 The Department of Job and Family
Services (JFS) investigated the allegation, but did not find "enough evidence to substantiate" the
boy's claim. 135
When Savannah heard about the posting, she read Ripley's MySpace page. Some time earlier,
she had seen a "short remark" Ripley posted "on a contemporary's MySpace page that also
referred to the molestation accusation," but Savannah said Ripley had never "directly
communicated these postings" to her, even though she, too, had a MySpace account. 136 After
she read the caption on the photograph, Savannah complained to authorities at her school, which
led to Ripley being charged with, and convicted of, criminal harassment. 137
At Ripley's bench trial, Savannah reiterated that Ripley "never directly communicated with her
over the Internet and that she had sought out the postings." Savannah also said she felt
""harassed' by the postings" and had overheard Ripley making "a similar remark about her at
school." 138 Ripley testified that "she believed her brother's accusations" against Savannah and
gave this explanation for posting the offensive material: "I think that other people need to know
how she is. And she denies everything, but a lot of people believe that she did it. And I was told
that she did it. And so I think that other people have a right to know." 139 Ripley was [*33]
convicted of one count of telecommunications harassment; she appealed.
The statute Ripley was convicted of violating required that the defendant have "made a
telecommunication ... with [the] purpose to abuse, threaten, or harass another person." 140
Ripley argued first that since she had not directly contacted Savannah, she had not made a
telecommunication within the meaning of the statute. 141 The Ohio Court of Appeals disagreed.
It noted that the legislature defined telecommunication broadly as including the "dissemination"
of a communication, and so declined to hold that a direct communication is required for a
violation of the harassment statute. 142
Ripley's real argument was that the "lack of a direct communication" targeting Savannah negated
any inference that she had the specific intent to harass. 143 The court of appeals began its
analysis of this issue by noting that Black's Law Dictionary defines harassment as "words,
conduct, or action ... that, being directed at a specific person, ... alarms or causes substantial
emotional distress in the person." 144 The court then explained that the statute creates a specificintent crime: the state must prove the defendant's specific purpose to harass. The burden is not
met by establishing only that the defendant knew or should have known that her conduct would
probably cause harassment. The legislature has created this substantial burden to limit the
statute's scope to criminal conduct, not the expression of offensive speech. 145
The court of appeals held that the state failed to prove beyond a reasonable doubt that Ripley's
specific intent in posting the statement was to harass Savannah. At trial, the prosecutor had
argued that posting the allegation after the JFS could not substantiate the accusation proved that
Ripley's purpose was to harass Savannah. 146 The court of appeals found that JFS's finding did
not mean the "dissemination of the allegation could not serve the legitimate purpose of warning
others of what [Ripley] Ellison believed to be criminal behavior. Moreover, it was undisputed

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that [Ripley] Ellison never directed a telecommunication to [Savannah] Gerhard despite the
opportunity to do so." 147 It reversed the conviction and discharged Ripley from further
prosecution based on this incident. 148
While the Ellison court focused on whether Ripley had the required specific intent to direct the
communication at Savannah, the case also implicated whether Ripley intended for the
communications to be seen by others whose reactions were likely to have a negative impact on
Savannah. As the court of appeals explained, Ripley's posting of the comment about Savannah
on her MySpace page is conduct that differs in several material respects from the conduct
involved in direct cyberbullying. First, it was not directed at the victim. It was, instead, put on a
website for all to see. Although it is reasonable to infer Ripley knew, or must have known, that
Savannah might see the comment, this does not seem to have been her purpose. Instead, it
appears she was acting out of a desire to warn people about someone she believed to be a threat
to small children. Posting the comment was, therefore, an act of pure speech - communicating
information or an opinion to the public - rather than an act in furtherance of a crime.
The resolution of the second issue is more problematic. We know Ripley posted the comment on
her MySpace page; we also know that she posted a comment about the alleged molestation on a
"contemporary's" MySpace page, and that Savannah was able to view the comment on Ripley's
MySpace page. This suggests that [*35] Ripley's posting was accessible to other students at the
high school she and Savannah attended. Because the court did not address the accessibility of
this comment, it is impossible to know, with certainty, its potential reach. However, as most
MySpace users "leave their profiles open to the public," 149 it is reasonable to assume that it was
widely available. Therefore, while the facts do not establish that Ripley made an intentional,
focused effort to get the information out to the broadest audience possible, they do not negate the
inference that her purpose was informational. That, though, is enough to prevent the imposition
of criminal liability for harassment because, as the court of appeals noted, when a crime requires
specific intent, it is not enough to show that the defendant knew or should have known her
conduct could constitute harassment.
The other relevant case is A.B. v. State. 150 The juvenile known as "A.B." was a student at
Greencastle Middle School in Greencastle, Indiana when the 2005-2006 school year began. 151
At the time, Shawn Gobert had been principal of Greencastle Middle School for thirteen years.
152 A.B. transferred to another school "sometime" before February 2006, which is when Gobert
learned that a "Mr. Gobert" "profile" had been created on a MySpace ... page, purportedly by
him, and on which A.B. had posted a vulgarity-laced tirade directed against him. In fact, another
juvenile, R.B., a friend of A.B. and ... a student at Greencastle Middle School, had created this
false "Mr. Gobert" ... "profile" and allowed access to it by twenty-six designated "friends," one
of whom was A.B. A.B... . made her posting about Mr. Gobert on this private "profile."
Thereafter, ... A.B. created her own MySpace [*36] "group" page, accessible by the general
public, and titled with a vulgar expletive directed against Mr. Gobert and Greencastle schools.
153
In delinquency proceedings, A.B. was charged with, and convicted of, conduct "that if
committed by an adult would constitute Harassment, a class B felony" under Indiana law. 154
A.B. appealed to the Indiana Supreme Court, claiming the evidence did not prove that she acted

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with the intent required by the Indiana harassment statute. 155 The court agreed and reversed her
conviction. 156
The Indiana Supreme Court began its analysis by noting that the harassment statute makes it a
crime for one acting with the "intent to harass, annoy, or alarm another person" and "with no
intent of legitimate communication" to use a "computer network" either to "communicate with"
or "transmit an obscene message or indecent or profane words to a person." 157 A.B. was
charged with violating both provisions, but the Indiana court found this did not affect its analysis
because the "intent element is the same for both violations." 158 It noted that for someone "to
commit an act with the intent to harass, annoy, or alarm another person, common sense informs
that the person must have a subjective expectation that the offending conduct will likely come to
the attention of the person targeted for the harassment, annoyance, or alarm." 159
The Indiana Supreme Court noted that the counts differed with regard to whether the postings
were "publicly accessible." 160 Four counts were based on "A.B.'s postings on her friend's false
[*37] "Mr. Gobert' private MySpace "profile,'" while the other two were based on "language
used in the public MySpace "group' page created by A.B." 161 The trial court's written findings
of fact did not differentiate between the public and private postings:
Mr. Gobert is the principal. The web site was accessible by other students and the public. It is
obvious to the Court that such information, while not directly sent to Mr. Gobert, was going to
end up with him, due to the job and standing within the juvenile community.
While the court does not know exactly what [A.B.'s] intent was, from the common sense reading
of the displayed message, the Court can not envision any other intent but to harass, annoy or
alarm.
The Court can not envision when such communication could be labeled "legitimate." 162
The Indiana Supreme Court disagreed. It noted that because A.B.'s posting on R.B.'s private
MySpace profile could not be seen by anyone except those to whom R.B. had granted access,
Gobert was only able to see it after R.B. "authorized him to access the "profile' during his
investigation" of the comments. 163 As a result, the court found there was no evidence that A.B.
expected Gobert to "see or learn about" her posting on R.B.'s private profile. 164 This meant that
neither the evidence nor "reasonable inferences" established that when A.B. made her posting on
R.B.'s private profile, she had a "subjective expectation that her conduct would likely come to
the attention of Mr. Gobert." 165
The Indiana Supreme Court found the analysis differed for the counts that were based on "A.B.'s
remarks on her MySpace "group' page. Because this site was publicly accessible, it may be
[*38] reasonably inferred that A.B. had a subjective expectation that her words would likely
reach Mr. Gobert." 166 It concluded, however, that this was not sufficient to establish the intent
required by the Indiana harassment statute. As noted above, the statute requires that the person
have acted with the "intent to harass, annoy, or alarm another person but with no intent of
legitimate communication." 167

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The only evidence of A.B.'s intent with regard to the public postings was what she said in this
post:
[R.B.] made a harmless joke profile for Mr. Gobert. and [sic] some retarded b**ch printed it out
and took it to the office. [R.B.] is expelled, has to go to court, might have to go to girl [sic]
school, and has to take the 8th grade over again! that's [sic] just from the school, her paretns [sic]
have grounded her, and took [sic] her computer, she cant [sic] be online untill [sic] 2007! GMS
is full of over reacting idiots! 168
The Indiana Supreme Court found this post presented "strong evidence that A.B. intended her
"group' page as legitimate communication of her anger and criticism of the disciplinary action of
Mr. Gobert ... against her friend." 169 It also found that the post made it "impossible for the State
to have carried its burden to prove" that A.B. had "no intent of legitimate communication." 170
3. Analysis
The A.B. court's holding is both correct and instructive. While it may not be impossible to
convict someone who engages in indirect cyberbullying of harassment, it is highly unlikely.
When an indirect cyberbully posts ostensibly bullying messages on a website or other online
resource the putative victim cannot access, it will be difficult to prove that his or her intention
was to harass that person. As we noted earlier, stalking and harassment both assume conduct
directed at the victim; they do so because that assumption is implicit in the essential dynamic of
traditional, malum in se crimes. For such a crime to have been committed, there must have been
a perpetrator, actual or contemplated harm, and a victim who was the target of that harm. 171 In
the physical world, the nexus between perpetrator, victim, and consequent harm is inevitably
direct; there is no other way to inflict harm in the real world. 172 Even if the perpetrator uses an
intermediary - an accomplice - to inflict the contemplated harm, the nexus between perpetrator
and victim is still direct; the accomplice is merely the perpetrator's tool.
When cyberspace is the vector of activity - especially expressive activity - the existence of such a
nexus becomes uncertain. We have all said things that could harm others in more or less serious
ways, never intending that they reach the person in question. They usually do not because social
mores inhibit most of us from telling A what B said about him. Additionally, our reliance on the
[*40] presumptive confidentiality of the critiques we share with our friends and family would
negate any inference of an intent to harass in the unlikely event we were prosecuted. The idea of
prosecuting someone on the basis of such conduct seems absurd, 173 yet it is functionally
analogous to what happened to A.B.
The differentiating factor in A.B. (and similar cases) is that the presumptive confidentiality we
assume in the real world becomes problematic online, at least when the actor posts comments on
a site that is at least potentially accessible to the target of the comments. When we post "irritating
or malicious gossip" 174 online, we publish the comments to the world. However, if we post
comments without considering whether the target is likely to see them, we do not engage in the
premeditated, focused communications involved in direct cyberbullying. Despite this, we have
still published communications that have the potential to reach the victim. If our comments
actually reach the victim, they may well inflict the type of harm prohibited by harassment and

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stalking statutes. The problem, as the A.B. court noted, lies in the lack of specific intent.
Recklessness or negligence cannot (and should not) support the imposition of criminal liability
for stalking or harassment.
Stalking and harassment laws are not appropriate ways to deal with this phenomenon because
they were crafted to deal with a specific type of malicious communication. The harms they
encompass derive from the persistent, intentional violation of an essential norm governing
gossip: gossip is shared with people other than the person whom it concerns. Harassment and
stalking often involve [*41] bombarding the victim with what would constitute gossip if it were
shared with others. 175 It is this premeditated, malicious targeting of the victim that
distinguishes simple (non-criminal) gossip from harassment or stalking. When it comes to
gossip, ignorance may not be bliss, but it eliminates any need to use criminal liability to control
what is being said about someone.
How should we handle situations in which this malicious targeting is absent but the online
circulation of gossip still inflicts harm on the person it concerns? We are dealing with a new
problem, one that could not have arisen prior to the Internet (just as telephone harassment did not
exist until the use of telephones became common). Until Internet use became common in the
1990s, 176 the publication of material (gossip, rumor, news, etc.) was controlled by the
mainstream media. Corporations engaged in disseminating content via print, radio, and television
signals. The material the mainstream media publish is limited by two factors. First, the cost
involved in publication by traditional means acts as a de facto content filter; publishing material
about matters of general public interest is likely to be more profitable than publishing material
that will interest only a few people. Second, the possibility of being sued (for defamation,
copyright infringement, invasion of privacy, etc.) causes mainstream media companies to rely on
a cadre of professional editors, reporters, and other staff, whose collective purpose is to filter
content and prevent the publication of actionable material. 177
As a result of potential liability, the mainstream media (i) publish gossip about people whose
lives are likely to be of general public interest (celebrities) but (ii) do not publish gossip about
non-celebrities, i.e., those whose lives will almost certainly not be of interest [*42] to the
general public. 178 This meant that prior to the Internet, non-celebrities bore little, if any, risk of
having gossip about themselves circulated among a wider audience. Gossip stayed where it had
always been - within the localized group comprising the individual's co-workers, acquaintances,
friends, and family.
The Internet changed that. Now we all face the prospect of experiencing what was once the sole
province of Hollywood celebrities. We can have our own pazzi, whether we like it or not. 179
Unlike professional pazzi (who are motivated by profit), our pazzo (or pazzi) may be motivated
by jealousy, insecurity, or boredom. And unlike those who have traditionally been the targets of
pazzi, we have done nothing to inject ourselves into the public arena. 180 We expect celebrities
to shrug off the more or less accurate (but usually embarrassing) gossip pazzi generate about
them; but those of us who are not celebrities are outraged when our own, freelance pazzi do
something similar to us.
Should criminal stalking and harassment laws be expanded to encompass online gossip about

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private citizens? Here, we are concerned with the general, non-targeted publication involved in
indirect cyberbullying. If, as noted earlier, the publication of the material were targeted
specifically at the victim, as in direct cyberbullying, it might be possible to prosecute under
existing stalking and harassment laws. Indirect cyberbullying raises a different and much more
difficult issue: the imposition of criminal liability for the general publication of non-defamatory
gossip. 181
Celebrities have on occasion sought to use stalking or harassment laws against their pazzi, but
those efforts have been predicated on the trespasses and assaults pazzi often use to obtain
photographs of celebrity targets. 182 Trespasses and physical encounters provide the victimtargeted conduct that is missing in indirect cyberbullying, and therefore make the use of stalking
and harassment reasonable in the celebrity pazzi context. Indirect cyberbullies do not engage in
such conduct, which makes the applicability of current stalking and harassment laws problematic
in this context. 183
We seem to be left with two alternatives. One is to expand current criminal stalking or
harassment laws so they encompass the generalized publication of gossip that constitutes indirect
cyberbullying. The other is to accept our new-found, and perhaps unwelcome, status as "lowercase" public figures, i.e., as someone whose personality, appearance, activities, or predilections
can become grist for an amateur online pazzo (or pazzi).
While some may find the first alternative appealing, it would be unworkable in practice and is
almost certainly unconstitutional. It would be unworkable because the criminal justice system
would be inundated with requests for prosecutions, most of which would be denied due to a lack
of resources. Rejected requests might lead the original victim to retaliate in kind, which could
lead to a consequent, also likely-to-be-rejected request for prosecution by the cyberbullybecome-victim. While prosecutions might be brought in a few particularly egregious cases, they
would probably do little to discourage determined cyberbullies. As to the constitutional issues,
expanded stalking and harassment statutes criminalizing the circulation of simple gossip would
likely violate the First [*44] Amendment because they would bar the publication of nondefamatory content and opinion. 184 They would probably also be held void for vagueness due
to the difficulty involved in articulating what was, and was not, permissible in online
commentary about someone. 185
That leaves the second alternative, which is eminently feasible but more than a little unsatisfying.
We would have to tolerate the aggravating attentions of those who choose to become our pazzi
(unless their conduct could be prosecuted under one of the theories we have yet to examine). We
would have to accept the proposition that has been bandied about for more than decade:
cyberspace transforms everyone into a public figure, or more accurately, cyberspace has the
potential to transform everyone into a public figure. If some more or less deranged person
decides to spread gossip about us online, we have to deal with it ourselves. We can ignore it or
respond in kind or, if the gossip is particularly annoying, try to have it taken off the site on which
it is posted. Beyond that, there probably is nothing we can do (absent, again, the applicability of
one of the theories examined below).
While this alternative may seem unsettling and unsatisfying to us, that may not always be true.

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We find this alternative unsatisfying because we are used to a world in which we have been able
to ignore what is said about us, at least for the most part. We know, at some level, that our
friends, colleagues, and acquaintances gossip [*45] about us behind our backs, but as long as
we do not know what they say, we can ignore it. When what they say migrates online, it becomes
difficult - if not impossible - to ignore. Because we are the products of a real-world culture which
dictates that gossip is not to reach the person it concerns, we are likely to be outraged and want
the perpetrators sanctioned, somehow. But that reaction may be an historical artifact, the product
of a non-networked culture. As one author noted:
In a bygone era, members of a community would gather at the local soda fountain to "chew the
fat" - discuss ... local politics, share the latest gossip, or complain about the weather. These days,
millions of people are engaged in the same conversations not over root beer floats at soda
fountains, but over keyboards in online communities known as social-networking web sites. 186
As social networking becomes more pervasive, we are likely to become more accustomed to and more comfortable with - the fact that "chewing the fat" has migrated online, and the
attendant reality that gossip can easily leak into wider circulation. If it simply leaks, and is not
deliberately directed at the person it concerns (direct cyberbullying), we may have to live with
that. The pragmatic assumptions we tend to make about when gossip reaches its target in the real
world will no longer be valid, which may make the notion of holding the leaker criminally liable
for what he or she has done hopelessly problematic.
[]
III. Kiddie Crime?
One of the characteristics that differentiate what we are calling "kiddie crime" from crime proper
is the nature and impact of the harm inflicted by each. Crime is catholic and generic; the harms it
encompasses are not limited to a particular segment of society. Thefts victimize rich and poor,
individuals and artificial entities alike. The same is true of most other crimes. Some regulatory
offenses encompass harm that is necessarily limited to a particular segment of society, 316 but
the harms encompassed by traditional crimes are pervasive and democratic in nature.
Kiddie crime, on the other hand, inflicts harms that are peculiar to a particular context: schools
(of whatever type). To the extent that conduct that would otherwise constitute kiddie crime
inflicts a generic harm that has been addressed by the criminal law, it can be prosecuted as a
crime. 317 It is, as we have seen, the residual harms that constitute kiddie crime.
The issue we, as a society, need to resolve is whether kiddie crime should be treated as a noncriminal phenomenon or whether the harms it inflicts should become the focus of new, kiddie
crime-specific criminal statutes. We can create new crimes; the question in this instance is
whether we should create new crimes that encompass the residual and consequently so-far
unaddressed harms constituting kiddie crime.
The answer to that question lies in two aspects of kiddie crime. One is the nature of the harms
involved. The other is the fact that kiddie crime is unique to a specific social context.

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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 would have to move much further into the territory of affective harms. To address the
residual harm that cannot be prosecuted as stalking or harassment, we would have to predicate
liability on a subset of the conduct criminalized by these statutes. We could therefore make it a
(new) crime to commit a single act that caused the victim to suffer emotional distress; if we
wanted to set the liability bar a little higher but still achieve essentially the same result, we could
make it a crime (another new crime) (i) to engage in a course of conduct that caused the victim to
suffer emotional distress, or (ii) to commit a single act that caused the victim to suffer substantial
emotional distress. We might, in addition or instead, reduce the level of mens rea from purpose
or intention to knowing or even to reckless conduct.
We could do this with stalking and harassment, and could probably do something similar with
other relevant soft harm crimes (such as threats or invasion of privacy). 329 We should not do it
because lowering the bar further for the imposition of criminal liability on those who inflict soft
harm is a very bad idea, even if we ignore the vagueness and other legal challenges that could be
brought to the scaled-down offenses. It would trivialize the import and significance of the
criminal law; the parsimonious use of criminal sanctions to discourage the infliction of egregious
affective harm is a necessary step in a world in which soft harms assume a greater importance
than in the past.
As we have seen, modern technology lets people hurt each other in new ways - ways that can
have a lasting impact on the victim. 330 [*83] The use of criminal liability is appropriate when
the harm inflicted is so severe that it is at least arguably commensurate with the harms criminal
law has always addressed. It is not appropriate when the severity of the affective harm inflicted
does not rise to that level.
We cannot criminalize every instance in which people hurt each other's feelings; hurting other
people's feelings, intentionally and inadvertently, is an unpleasant but unavoidable aspect of life.
There are some things that are not, and should not become, crimes. As the drafters of the
Restatement of Torts noted, law cannot take cognizance of insults, indignities, threats,
annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in
need of a good deal of filing down, and ... [we] must ... be hardened to ... acts that are definitely
inconsiderate and unkind. There is no occasion for the law to intervene in every case where
someone's feelings are hurt. There must still be freedom to express an unflattering opinion, and
some safety valve must be left through which irascible tempers may blow off relatively harmless
steam. 331
This is particularly true for cyberbullying because it takes place in a specific context and
involves a more or less immature population that can be expected to have more rough edges than
the general, primarily adult, population.
We believe kiddie crime is most appropriately addressed within the context from which it
emerges - within the school the victim and perpetrator(s) attend. Having schools address kiddie
crime is appropriate for several reasons. One, as we have seen, is [*84] that it is inappropriate to
extend criminal liability to the very real but lesser levels of soft harm kiddie crime inflicts on its
victims. Another reason is that addressing kiddie crime seems to fall within schools' educational
mission; schools are, after all, responsible for filing down the rough edges of the students who

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are in their charge. Finally, educational institutions are also victims of kiddie crime; as we saw in
Part II, schools are concerned about cyberbullying because it can have a detrimental effect on
their ability to carry out their educational mission.
When the soft harms inflicted by a cyberbully rise to the level of stalking, harassment, or the
other crimes we examined in this article, the bully can be prosecuted and sanctioned by the
criminal justice system. This is appropriate because the harms the cyberbully inflicted are of a
severity justifying the imposition of criminal liability; they transcend the context-specific harm
involved in kiddie crime. If the soft harms inflicted by a cyberbully do not rise to this level, they
fall into the residual category of kiddie crime; since the context-specific harms constituting
kiddie crime are the product of the educational context and impact on that context, they should
be addressed there.
Schools can deal more quickly and easily with "soft" harms caused by cyberbullying detentions, suspensions, and expulsions can be meted out and finalized before a single complaint
and answer could be filed. Further, those disciplinary procedures assure that the students can stay
in school and continue the process of "filing down the edges." As we have explained, most of
these cases stem from students simply "typing before they think" - many of the cases outlined in
Part II involved students with respectable grades and no previous discipline records.
Criminalizing this behavior would unnecessarily punish students who are still in the throes of
learning about appropriate behavior, online and off.
Additionally, schools can modify their codes of conduct easily to cover cyberbullying issues,
giving themselves jurisdiction over any issues that may arise. While the schools still need to
show a material disruption under the Tinker 332 standard, some argue that a [*85] victim being
forced to attend school with his cyberbully and then go home to find more teasing online would
be enough of a disruption for that particular student to rise to this standard.
Finally, if the individual students feel the harms rise to the level of necessitating some
intervention in the legal system, he can always fall back on the gap-filler tort of intentional
infliction of emotional distress and take his antagonist to court.

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http://www.nytimes.com/roomfordebate/2010/09/30/cyberbullying-and-a-students-suicide/newcriminal-laws-arent-the-answer-to-bullying

12. Not Every Tragedy Should Lead to Prison


October 20, 2010
By Paul Butler Former federal prosecutor, an associate dean and the Carville Dickinson Benson Research
Professor of Law at George Washington University
New York Times

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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http://www.nytimes.com/roomfordebate/2010/09/30/cyberbullying-and-a-students-suicide/whatisnt-known-about-suicides

13. What Isn't Known About Suicides


September 30, 2010
By Laurie L. Levenson Professor of law and the David W. Burcham Chair in Ethical Advocacy at Loyola Law
School, Los Angeles
New York Times

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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60 Case W. Res. L. Rev. 153-204 (Fall 2009, No. 1)

14. OMG! Missing the Teachable Moment and


Undermining the Future of the First Amendment
TISNF!
Fall, 2009
By Mary Sue Backus
Case Western Reserve Law Review

III. Current Responses Are Misguided and Ineffective


In the face of relentless media focus on the most shocking stories of kids using digital media to
taunt and bully each other, state legislative action mandating new policies, and the mounting
evidence of the growth and negative consequences of cyberbullying, it is no surprise that
educators feel compelled to act. Even while indicating some uncertainty in how to handle the
new dilemmas created by the Internet and students' off-campus digital speech, schools are
asserting their authority in this new realm. As one Maryland educator put it, [w]e have some
concerns about being asked to police things that don't happen on the school grounds [i]t's a
difficult thing. Too frequently, however, school administrators are blundering ahead, relying on
traditional authoritarian approaches rather than employing more constructive and effective
preventative solutions.
Before considering why this authoritarian approach is misguided and ultimately ineffective, it is
important to identify the kinds of student speech with which schools need not be concerned.
There are, in fact, a number of categories of troubling student Internet speech that schools can
legitimately leave to the criminal and civil legal systems. As one court put it before the advent of
the Internet:
In this court's judgment, it makes little sense to extend the influence of school administration to
off-campus activity under the theory that such activity might interfere with the function of
education. School officials may not judge a student's behavior while he is in his home with his
family nor does it seem to this court that they should have jurisdiction over his acts on a public
street corner. A student is subject to the same criminal laws and owes the same civil duties as
other citizens, and his status as a student should not alter his obligations to others during his
private life away from the campus.
It is perfectly appropriate, and perhaps preferable, for schools to abdicate to the criminal justice
system when extremely harmful online speech violates criminal laws. The most egregious kinds
of bullying, both online and off, enjoy no First Amendment protection and thus, individuals can
be subject to arrest and prosecution or to civil suit for damages. Threatening violence to people
or their property, coercion, obscene or harassing phone calls or text messaging, stalking or
harassment, sending sexually explicit photos of a teen, or taking a photo of someone where
privacy is expected, are all acts that may run afoul of the legal system. The bottom line is that

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sufficient *187 remedies and redress in the civil, criminal, and juvenile justice systems already
exist for off-campus expression that causes harm.
It is true that there have been some struggles to find criminal statutes that cover some
reprehensible online behavior, the most notable case being the cruel hoax targeting Megan Meier
that resulted in her suicide. National outrage fueled a federal criminal prosecution in Los Angles
after local Missouri prosecutors could find no statute with which to charge Lori Drew, the
neighbor who had posed as a teenage boy in a series of e-mail messages to Megan. The
controversial prosecution, brought under the federal Computer Fraud and Abuse Act, was an
unprecedented use of a computer fraud statute designed to combat computer crimes, such as
unauthorized hacking into a computer system and theft of information. In this case, it was used to
prosecute what were essentially abuses of a user agreement on a social networking site. Although
Drew was convicted by a jury of three misdemeanor counts of computer fraud for creating and
using the fake MySpace account used to torment Megan, the judge recently threw out the
charges.
Students, however, have been criminally prosecuted for threats and harassment made on the
Internet, and have also been subject to civil suits for defamation and other personal torts. For
instance, criminal charges were filed against three teenagers who discussed blowing up their
school in Tampa on a MySpace chat, and a half a dozen students from a New Jersey middle
school were criminally charged with terroristic threats and harassment based on humiliating and
threatening Web site postings directed toward their peers. On the civil side, Justin Swidler, the
J.S. of J.S. ex rel. H.S. v. Bethlehem Area School District and Teacher Sux fame was ordered
to pay the algebra teacher he skewered on his Web site $450,000 when she sued him and his
parents for defamation, interference with contractual *188 relations, invasion of privacy, and loss
of consortium, along with negligent supervision. Therefore, extremely harmful speech can
violate criminal laws and subject the speaker to civil suit.
If schools leave the truly egregious speech to the criminal and civil justice systems, we are
nevertheless left with the persistent taunts and insults and verbal aggression that does not rise to
the level of crime or civil harm. This is not to underestimate the significance of the distress
caused by this level of cyberbullying or the profound damage it can inflict on young people.
Rather it is to clarify that the proposed response is best suited for this type of harmful peer-topeer communication, rather than true threats of violence or other criminal speech.
Traditional disciplinary approaches alone are not the answer to responding to and eliminating
this kind of harmful peer-to-peer communication. While suspending or even expelling a student
who engages in bullying online may bring temporary relief, there is little reason to believe such
discipline alone results in any long-term change in behavior. Moreover, technology is changing
so rapidly that it may be impossible for educators and parents to keep up with the fluid nature of
teen communication in order to monitor and punish those who bully. Indeed, the Internet itself,
the ways in which minors use it, and the communities in which they participate all change
constantly, and the available technologies are quickly evolving.
Responses to bullying that are limited to disciplining the perceived aggressor are problematic
and often ineffective. One complicating factor is ensuring that the culpable party is correctly

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identified. Electronic bullying scenarios are complicated by [the] frequency of reciprocal
harassment, blurring [of] lines between victims and perpetrators, and the ways in which bullying
moves between online and offline contexts and between different forms of social media. Zerotolerance policies aimed at bullying exacerbate this problem and *189 risk punishing victims
along with aggressors. Formal discipline also has the added risk of sparking expensive litigation
from parents and students intent on vindicating their First Amendment rights and, as a result,
may have a significant negative impact on a school's morale, reputation or community support.
As Hinduja and Patchin have observed, avoiding this negative fallout is underappreciated but
tremendously vital, as you cannot put a price on the value of positive morale and a peaceable
environment among school staff, students, and parents.
Evidence suggests that the climate of a school is the key ingredient to reducing bullying
behaviors. Research indicates that students who feel connected to their school, who think their
teachers care about them and are fair, and who think the school rules are clear and fair are less
likely to perpetrate any type of violence or aggression, including electronic aggression. To build
that positive climate, schools must seek to engage students in a dialogue and proactively address
bullying through programs designed to foster a more welcoming environment by developing
empathy, respect, and understanding of differences.
Anti-bullying programs that incorporate these concepts have proven effective in reducing
bullying and victimization, as a meta-analysis of fifty-nine studies of the effectiveness of
bullying prevention programs recently concluded. The study further *190 identified the work of
researcher Dan Olweus as the most effective mode of prevention. Olweus' pioneering research on
bullying culminated in the Olweus Bullying Prevention Programme (OBPP), where the focus is
not on discipline, but on intervention and engaging students in understanding and rejecting
bullying. Students are empowered to make better choices by learning more about the issue,
interacting with their peers to construct their own rules against bullying, and engaging in roleplaying to prepare to respond to a wide variety of bullying situations.
Student-centered educational approaches like OBPP are producing positive results. Where
students are involved in helping to design their learning experiences, they are more engaged and
ultimately more successful learners. For instance, a program using principles of restorative
justice has had great success in resolving student conflicts and reducing suspensions at
Milwaukee schools. Students use student-led discussion circles to work through conflicts.
The goal is not so much to punish as to get students on paths to make better choices, to
understand the impact of what they do, to deal with people betterin other words, to learn
something, to change their ways and not to just sit out classes for three days.
In addition to the student-centered focus of these successful programs, the educational aspect of
the approach is critical. Youth cannot be expected to exercise complete wisdom. They need to
be taught how to use technology responsibly. The call to educate young people about the use
and abuse of the Internet as a means of reigning in cyberbullying behaviors is also coming from
such site providers as Facebook and MySpace, who often provide the venue for the taunts and
insults that plague victims. Virtually every social *191 networking site that provided a
submission to the State Attorneys General Internet Safety Technical Task Force highlighted the
importance of educating young people on the safe and responsible use of the Internet. AOL's

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comments are typical: We have learned that education is an effective means to protect children.
To that end, we actively work with the education sector and supply them with the tools,
knowledge and skills they need to educate young people to use the internet safely and
responsibly.
[]

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http://www.firstamendmentcenter.org/analysis.aspx?id=21411

15. Protecting kids while protecting free speech


March 31, 2009
By Stephen Balkam Founding CEO of the Family Online Safety Institute; founder and CEO of the Internet
Content Rating Association and the Recreational Software Advisory Council
First Amendment Center, online symposium titled Cyberbullying & Public Schools

If Wikipedia is to be believed, cyberbullying involves the use of information and


communication technologies to support deliberate, repeated and hostile behavior by an individual
or group that is intended to harm others. Cyberbullying has eclipsed sexual predators on the
Internet as the number one concern of policymakers, parents and kids themselves. It is a growing
phenomenon taking many forms and is perpetrated on a growing range of platforms, devices,
sites and Web-based services.
With the advent of this new technology, schoolyard behavior such as teasing and starting rumors
can continue to affect a childs day long after the school day is over. Text and instant messaging,
Twittering and MySpace postings are the new playground for adolescents. The increasing use of
technology to bully creates a dilemma for parents, legislators and educators trying to deal with
the cyber-savvy schoolyard bully who, rather than picking a physical fight, now uses MySpace.
One third of teens using the Internet have experienced online harassment (Amanda Lenhart,
Cyber-bullying and Online Teens, Pew Internet & American Life Project, June 27, 2007, at 1).
This is a growing concern for families dealing with the emotional impact of bullied children and
it is also a problem for legislators trying to take action to stop the harmful effects of this
behavior.
Cyberbullying, not surprisingly, has the greatest impact on teens spending a large portion of their
time online and teens creating Internet content about themselves. A Pew Internet and American
Life study found that teens who share their identities and thoughts online are more likely to be
targets than are those who lead less active online lives (Lenhart).
The Centers for Disease Control and Prevention studied cyberbullying and found, Its difficult
to say how severe online harassment is as a public health issue, because a posting or e-mail that
might upset some children is shrugged off by others (FoxNews.com, CDC: Cyber-bullying
Growing Public Health Concern, Nov. 28, 2007). This is not to say that cyberbullying does not
cause problems. While some students report no impact from online harassment, cyberbullying
can have a negative effect on others. Consistent with previous research, youth who are harassed
online report a mix of psychological problems. They are significantly more likely to be targeted
by victimization offline (Michele Ybarra et al., Examining the Overlap in Internet Harassment
and School Bullying: Implications for School Intervention, Journal of Adolescent Health 41
(2007) S49). Some students may be upset because of what is said to them online and these
feelings may carry over into their performances at school or interactions with classmates.

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Legislators and educators need to be aware that teasing or making mean comments is different
than actual harassment. Authorities shouldnt react to middle school drama with intense
regulation but should be proactive and try to prevent the conflicts. Criminalizing cyberbullying
wont solve the problem.
[]
Respond quickly legislate slowly
Lawmakers should proceed cautiously before enacting legislation governing off-campus speech
that does not substantially interfere with school activities. School districts have the most
authority to intervene with cyberbullying when the actions occur on school property or on the
school computer network. Currently, some states have adopted laws that criminalize
cyberbullying or use school discipline codes to punish students for online behavior occurring off
campus and after school time.
States with higher profile cases tend to have more stringent anti-cyberbullying legislation passed
in reaction to the publicity of a cyberbullying case. If there is going to be legislation at all, there
should be a national definition of the problem and a uniform way to address it. States must be
aware that there is potential danger of infringing on free-speech rights of students through
current and proposed legislation.
There could also be jurisdiction problems from criminalizing cyberbullying in some states, but
not in others. In the Megan Meier case, Missouri prosecutors determined that Lori Drew had not
violated any local laws, but federal prosecutors used the location of the MySpace servers to
charge Drew in California. If bullying occurs via social-networking sites in states without
cyberbullying statutes, students might face disciplinary action or criminal charges based on the
server location.
U.S. Rep. Linda Sanchez, D-Calif., introduced legislation in 2008 to criminalize cyberbullying.
The Megan Meier Cyber-bullying Prevention Act called for a fine or imprisonment of up two
years for cyberbullying (H.R. 6123, 110th Cong. 2nd Sess. (2008)). This legislation, which was
referred to a House subcommittee but failed to pass, ensured that only severe, repeated, and
hostile behavior should be punished. The bill, however, went too far by making imprisonment a
punishment for cyberbullying.
Do we really want to criminalize what is, sadly, fairly normal adolescent behavior? Lawmakers
need to be cautious not to criminalize posting embarrassing pictures or spreading rumors, and
must not restrict speech any more than necessary. Legislation should focus on alternatives to
punishment and encourage educational solutions.
Technology as a problem and a solution
Text messaging, social networking and online video sharing extend the boundaries of the
schoolyard. As students adapt to changing technology, cyberbullying will continue to be a
problem. Advances in technology allow students to bully others after school, but the technology

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also improves students knowledge. Students need to learn better digital citizenship and how to
use technology not as a weapon but as a resource.
The Internet industry is working to do more than just monitor Web sites and take down offensive
material. Industry leaders are involved in groups to evaluate the problems and work with
researchers and others to discuss solutions. There are software programs available for parents to
keep track of what their kids are doing online and most social-networking and video-sharing
Web sites have policies against harassment and ways to report abuse: Tech companies are
releasing new software products that monitor and police kids Internet use, helping them avoid
cyber-bullying and letting parents know when its occurring (Jennifer Lawinski, Cyberbullying: Parents, Tech Companies Join Forces to Keep Kids Safe, Fox News.com, Oct. 13,
2008). Wider use of such programs could provide a technical rather than legislative solution to
thwart cyberbullying.
Legal or technological fixes alone, however, wont eliminate cyberbullying. There needs to be
increased industry efforts, increased education for students and increased resources for parents to
ensure their families are practicing web safety.
Alternatives to state regulation creating a culture of responsibility
There are many non-government alternatives to regulation. Parents, educators, government
officials and students can work toward a culture of responsibility where everyone takes on
differing, but overlapping areas of responsibility. It is more useful to educate students to make
wise choices online than to regulate every aspect of their lives. Such an approach would protect
free speech. In addition, teaching digital citizenship skills can have a positive impact on youth,
and media-literacy training can help kids learn how to block harmful messages, protect personal
information and report abuse.
Parents play a key role in this culture of responsibility because they need to learn how children
use technology and need to be aware of problematic behavior. The CDC suggests, For years
parents and caregivers have been asking their children where they go and who they are going
with when they leave the house. They should ask these same questions when their child goes
online (CDC Features, Electronic Aggression: Emerging Adolescent Health Issue,
www.cdc.gov/Features (Electronic Aggression, Aug. 28, 2008)).
If there are serious problems with cyberbullying, there are also serious civil consequences
available. If harassment occurs to such a degree that a students reputation is ruined or he suffers
severe emotional consequences, the bullied student could bring a defamation action or sue for
intentional infliction of emotional distress.
President Barack Obamas administration should call for funding to be used for cyberbullying
prevention, and the president should call an online-safety summit to learn more about
cyberbullying and promote a national education campaign to eliminate it.
[]

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http://www.cyberbully.org/documents/documents/cyberbullybill.pdf

16. Joint Statement on the Megan Meiers Cyberbullying


Prevention Act, HR 6123
September 30, 2009
Submitted by: Nancy Willard, M.S., J.D. Director Center for Safe and Responsible Internet Use, Author of
Cyberbullying and Cyberthreats: Responding to the Challenge of Online Social Aggression, Threats and Distress;
Patti Agatston, Ph.D Licensed Professional Counselor. Co-author of Cyber Bullying: Bullying in the Digital Age,
Cyber Bullying, A Prevention Curriculum for Grades 3-5, Cyber Bullying, A Prevention Curriculum for Grades 612; Robin Kowalski, Ph.D Professor of Psychology at Clemson University, Author and coauthor of Complaining,
Teasing, and Other Annoying Behaviors, Social Anxiety, Aversive Interpersonal Behaviors, Behaving Badly, and
The Social Psychology of Emotional and Behavioral Problems, Cyber Bullying: Bullying in the Digital Age, Cyber
Bullying, A Prevention Curriculum for Grades 3-5, Cyber Bullying, A Prevention Curriculum for Grades 6-12;
Sameer Hinduja, Ph.D. Assistant professor of criminology and criminal justice at Florida Atlantic University. Coauthor of Bullying Beyond the Schoolyard: Preventing and Responding to Cyberbullying; Justin W. Patchin, Ph.D.
Assistant professor of criminal justice at the University of WisconsinEau Claire. Co-author of Bullying Beyond
the Schoolyard: Preventing and Responding to Cyberbullying; Elizabeth K. Englander, Ph.D. Director,
Massachusetts Aggression Reduction Center and Professor of Psychology at Bridgewater State College
Barbara C. Trolley, PhD, CRC, Professor, St Bonaventure University, Co-author of Demystifying and Deescalating
Cyber Bullying: A resource guide for counselors, educators, and parents, Cyberkids (in press), Cyberbullying and
Cyberbalance (in press) and Browser the mouse and his internet adventure: Browser learns about cyberbullying and
making a safety plan (in press); Stan Davis School counselor, consultant, and author of Schools Where Everyone
Belongs and Empowering Bystanders in Bullying Prevention; Christopher J. Ferguson, Ph.D. Department of
Behavioral, Applied Sciences and Criminal Justice Texas A&M International University
Submitted to: The Subcommittee on Crime, Terrorism, and Homeland Security Committee on The Judiciary House
of Representatives

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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comprehensive, ongoing, in-depth prevention and intervention efforts that are needed to truly
prevent such trauma. When it comes to children victimizing other children, the research has
consistently demonstrated that both aggressors and targets in electronic aggression situations
have significant psychosocial concerns. Further, a child who is victimized repeatedly and cruelly
in school may, out of depression and despair, retaliate with cyberbullying and under this
legislation would be branded a criminal, not a victim. As professionals, we see such behavior as
more appropriately addressed though comprehensive efforts to establish school communities
where every student feels supported, and where bullying and aggression of any kind is not
allowed. These are issues that must be addressed locally in schools and with childrens
caregivers, rather than by the federal government. Our objection to this legislation should not be
misconstrued as dismissive of the importance of the need to proactively address the concerns of
cyberbullying. To effectively address these concerns will require comprehensive funding of the
safe schools and communities programs in states, districts, and local communities, with a
specific directive that schools and communities must mobilize to address the new risks to young
people presented by new technologies.

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http://judiciary.house.gov/hearings/pdf/Palfrey090930.pdf

17. Hearing on Cyberbullying and other Online Safety


Issues for Children
H.R. 1966, the Megan Meier Cyberbullying Prevention Act; and H.R. 3630, the Adolescent Web Awareness
Requires Education Act (AWARE Act)
September 30, 2009
Testimony of John Palfrey, Harvard Law School
United States House of Representatives, Committee on the Judiciary; Subcommittee on Crime, Terrorism, and
Homeland Security

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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young people. Most young people, at least in the United States, do not distinguish between their
online and offline lives. As a result, many of the good things that have gone on offline also
happen, in one form or another, online; so, too, do many of the bad things that happen in
everyday life play out also online. We should fundamentally be talking about bullying, not
cyberbullying.
Second, its an open question among researchers as to whether bullying overall is on the rise or
not. Again, it is quite clear that more young people are bullying one another than ever before via
digital technologies. What is not clear is whether this replaces any traditional, offline forms of
bullying. It could be that bullying is neither up nor down as an overall trend, but rather just
shifting venues and coming to our attention more prominently as a result. It also may be that
bullying is all of a sudden brought to the attention of adults who previously could not see it
happening on the playground or in the schoolyard. It may be, too, that bullying is, for the first
time, recorded for adults and others to see after the fact. That does not change the very real harm
caused to individual young people by bullying (online or offline), but it does mean that we
should be cautious before we call this bullying an epidemic.
As a side note, worth pausing on briefly: Its also the case that sometimes adults are part of the
problem, not part of the solution. Adults can be involved in bullying online. Adults are, too
rarely, part of the solution in terms of modeling good behavior and helping to support young
people who are seeking to do the right thing.
The third important thing is to focus on the behavior how people use digital media and not
solely on the technology. Digital technologies themselves do not have a nature. The Internet,
as one core part of the digital architecture, is famously a stupid network. A key design
principle of the Internet, the endtoend principle, calls for it to pass all packets. The network,
and the applications that are built upon it, is not inherently good or bad; it is merely a
conduit for human and machinetomachine interaction. A related point: technology design, or
architecture, can affect behavior. As we consider solutions, we should pay close attention to the
fact that both technological design and changes in how people are likely to behave can be drivers
of solutions.
No single solution to cyberbullying or, more properly, bullying in general exists. There is no
one thing that we can do that will protect Americas young people from being harmed online.
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. And many of the more aggressive responses to online
bullying would curtail First Amendment freedoms that minors ought to enjoy as their parents and
teachers do. All the same, its too great a worry to make throwing up our hands an adequate
response.
Solutions.
The most effective solution to cyberbullying is to combine a series of approaches to protect
minors. This notion is true of the vast majority of problems online; there is rarely a single

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approach that will satisfactorily solve the problem. Education, intervention by social workers,
technology, and law reform each have a role to play.
The first place to look is to the young people themselves. Minors can help address the problem
because they can lead by example. Young people listen to one another, and together they
establish powerful social norms. This is particularly true in terms how young people act in the
context of online social environments. Constructive social norms can lead to widespread change
in how young people act in online environments; likewise, social norms (such as a willingness to
download music illegally) can lead to widespread lawbreaking.
Education is crucial. Parents, teachers, social workers, and other adult mentors need to intervene
with the young people in their lives, to give guidance about how to interact with one another and
to lead by example. Parents and teachers can, in the course of conversation, shed light on the
potential harm that online bullying can cause and the consequences for both the bully and the
person who is being harmed. Other young people say, college students returning to their high
school for a community meeting might help to spark these important conversations within
schools and afterschool environments. It is possible to make certain harmful behavior uncool
in such a way as to reduce the incidence of young people hurting one another in these ways.
Technology companies can help, too. The large social networks that youth frequent Facebook,
MySpace, MyYearbook, BlackPlanet, LiveJournal, Bebo, and so forth can help to set a tone for
behavior that is permissible and that which is not. Communities can be given tools to selfpolice
and rules on the site can ban harmful speech. By contrast, some online web sites the
AutoAdmit message board for admitted law students leaps to mind, as does the nowdefunct
JuicyCampus too often support a very negative, often nasty sort of online discourse.
New law.
In light of the growing likelihood of harm occurring to young people at the hands of online
bullies, our instinct to regulate the digital environment through law more aggressively makes
perfect sense. As parents and teachers, we find ourselves at a loss to stop harm that is happening
to their children and students. School administrators worry that their policies are out of date. Law
enforcement officials puzzle over when and whether they have a role in helping young people in
these circumstances.
New legislation could help to address cyberbullying and other online safety problems. But newly
criminalizing a broad swath of online speech is not the right general approach. Nor do I favor a
set of rules that apply only in cyberspace and not in offline life. The rules should, to the greatest
extent possible, be the same in the online context as offline. We should strive to apply rules of
general applicability to the Internet context. Where the facts change as in the realm of Internet
safety we ought to rethink the way we write and apply these general rules, to be sure.
In many respects, the law already helps to provide causes of action against bullies, whether they
use the Internet or not. If online speech involved is defamatory, the bully (whether an adult or a
young person) may be found directly liable for harm done to her peer. If the speech is obscene, if
it rises to the level of a true threat, or if it is intimidating, the act of posting it online might

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violate a host of civil and criminal laws. The issue in these cases is enforcement, not whether or
not the speech is unlawful in the first place.
There are legal approaches other than newly criminalizing online speech that make sense.
The Adolescent Web Awareness Requires Education Act of 2009 is a terrific proposal. The
Acts proposed grant program would make a great deal of difference for young people in the near
term and potentially in the long term. The priorities stated in the bill track effectively the
research about young people and their risky behaviors. It emphasizes at risk youth. It calls for
partnerships between the private and public sectors. It calls for close connection between the
research community and those in our schools and communities.
Some of the innovation that we ought to explore involves the use of technology within online
communities to provide support for young people in these contexts. We ought to develop, refine,
and implement curricular approaches to cyberbullying. We need to provide training to parents,
teachers, administrators, social workers, and other staff in schools and other environments where
young people spend time. The terrific network of social workers and pediatricians and other
professionals who support children need to be part of the solution, too. And we need to put tools
in the hands of the young people who are helping one another address this problem by investing
in peerdriven solutions. This grant program could help creative people to build this
infrastructure.
[]
Conclusion.
There is no easy answer to the problem of online bullying. The most effective approach
education, with a view toward getting toward the root cause of bullying and establishing positive
social norms is the hardest to accomplish. It is also the least satisfying as an answer. The
AWARE Act is a good step in the right direction. We should consider other approaches,
including law reform and the use of new technologies in online environments, but we should do
so in the knowledge that these approaches are likely halfmeasures at best partial solutions to
this growing problem facing our kids and our society at large.

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