Thursday, July 30, 2009
Cyberbullying is a rising online safety concern. Compared to previous fears about online predation, which have been greatly overblown, concerns about cyberbullying are more well-founded. Evidence suggests that cyberbullying is on the rise and can have profoundly damaging consequences for children.
In the wake of a handful of high-profile cyberbullying incidents that resulted in teen suicides, some state lawmakers began floating legislation to address the issue. More recently, two very different federal approaches have been proposed. One approach is focused on the creation of a new federal felony to punish cyberbullying, which would include fines and jail time for violators. The other legislative approach is education-based and would create an Internet safety education grant program to address the issue in schools and communities.
Criminalizing what is mostly child-on-child behavior will not likely solve the age-old problem of kids mistreating each other, a problem that has traditionally been dealt with through counseling and rehabilitation at the local level. Moreover, criminalization could raise thorny free speech and due process issues related to legal definitions of harassing or intimidating speech. To the extent criminal sanctions are pursued as a solution, it may be preferable to defer to state experimentation with varying models at this time.
By contrast, education and awareness-based approaches have a chance of effectively reducing truly harmful behavior, especially over the long haul. Such approaches would have the added benefit of avoiding constitutional pitfalls and subsequent court challenges. Thus, if lawmakers feel the need to address cyberbullying concerns at this time, it is clear that regulation is, at best, premature and that education is the better approach. If federal criminal law has a role to play, it is in punishing clear cases of harassment of minors by adults in ways that do not chill free speech protected by the First Amendment.
Download the paper from SSRN here.