A proposed federal law intended to combat a form of Internet-based harassment known a "cyber-bullying" was criticized by a House subcommittee this fall. Meanwhile, local police made several arrests attempting to enforce similar, state-based legislation.
House Subcommittee Members Criticize Proposed Cyber-bullying Law
On Sept. 30, 2009, members of a House Judiciary subcommittee expressed doubt that a proposed law could accomplish its goal of criminalizing the online bullying of children without infringing on free speech rights.
In April 2009, Rep. Linda Sanchez (D-Calif.) introduced H.R. 1966. Known as the "Megan Meier Cyber-bullying Prevention Act," after a 13-year-old Missouri girl who hanged herself in 2006 after a classmate's mother created a false Web site to taunt her, the legislation seeks to criminalize electronic communication transmitted "with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person."
Sanchez acknowledged during the hearing that crafting a cyber-bullying law able to withstand constitutional challenges will be difficult. She said annoying e-mails, political blogs, and an unfriendly text to an ex-boyfriend should remain legal, while serious, repeated and hostile communications made with the intent to harm should constitute a criminal offense, according to a September 30 Associated Press (AP) story.
A September 30 post on the Threat Level blog described members of the House Subcommittee on Crime, Terrorism and Homeland Security as giving Sanchez's comments a bipartisan "chilly reception" during the hearing.
"We need to be extremely careful before heading down this path," Committee Chairman Rep. Bobby Scott (D-Va.) said. Rep. Louie Gohmert (R-Texas) said the legislation "appears to be another chapter of over-criminalization," according to Threat Level.
John Palfrey, a professor at Harvard Law School who also testified at the hearing, said a task force he led in 2008 did not resolve the question of whether bullying has increased among youths. "It is quite clear that more young people are bullying one another than ever before via digital technologies," he said, according to an October 2 AP story. "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."
Rep. Debbie Wasserman Schultz (D-Fla.) proposed an alternative to a criminal law. She suggested a new federal assistance program in which competitive grants would allow non-profit Internet safety groups to educate schools and communities of the dangers of online bullying, according to the September 30 AP story.
Missouri Woman Charged With Felony Harassment Under State Law
A Missouri woman was charged in August 2009 with felony harassment for allegedly posting a photo and personal information of a teenage girl on the "Casual Encounters" section of Craigslist, a popular advertising Web site.
Elizabeth A. Thrasher is accused of creating the listing after she had an online confrontation with the 17-year-old daughter of a woman Thrasher's ex-husband was dating, according to an August 18 report in the St. Louis Post-Dispatch. The post included the girl's picture, employer, e-mail address and cell phone number.
Authorities said that Thrasher and the girl's mother had been arguing, and that there was some back-and-forth bickering on MySpace among the three. "Who started what is up for debate," said St. Charles County Prosecutor Jack Banas, according an August 19 AP story.
According to the Post-Dispatch, Banas said the Craigslist post's language would cause people to believe it was an invitation to engage in sexual contact with the girl. Investigators said men called the girl and sent e-mails, text messages and pornography to her cell phone after Thrasher posted the listing.
The AP reported that Thrasher, of St. Peters, Mo., is the first person charged with felony cyber-bullying under a Missouri law that went into effect in August 2008 in response to the 2006 suicide of 13-year-old Megan Meier, who was the victim of an Internet hoax that drew international attention. (See "Judge Dismisses Ruling against Mother in MySpace Suicide Case," in the Summer 2009 issue of the Silha Bulletin.)
According to Mo. Rev. Stat. section 565.090, harassment occurs when a person "[k]nowingly frightens, intimidates, or causes emotional distress to another person by anonymously making a telephone call or any electronic communication." The law also applies when someone communicates with a person who is, or purports to be, 17 years old or younger "and without good cause recklessly frightens, intimidates, or causes emotional distress to such person." An offense can be charged as a felony if a victim is 17 years old or younger and the suspect is at least 21 years old.
Thrasher was released after posting $10,000 bond, but a judge prohibited her from having a computer or Internet access at home. Thrasher's attorney, Michael Kielty, likened the accusations against Thrasher, who has two children, to posting a telephone number on a bathroom wall, telling people to "call Jane Doe for a good time." He said that while Thrasher's actions may have been "in poor taste" or "inappropriate," they do not amount to a crime, according to the August 19 AP story.
"To charge a woman, a mother, with a felony for what is tantamount to a practical joke, that's awfully rash," Kielty told the Post-Dispatch. "That's taking it to the extreme." Kielty also said that he thought the statute was poorly drafted.
In an August 21 post on The Volokh Conspiracy law blog, Eugene Volokh criticized the law "as an extremely vague and potentially broad statute" that violates the First Amendment because it is not limited to false statements. Volokh, a law professor at UCLA, focused on the statute's use of the words "without good cause" as the basis for determining that the law is unconstitutional.
"A great deal of speech, including anonymous speech, emotionally distresses people," Volokh wrote. "That doesn't strip it of constitutional protection, and neither should constitutional protection turn to jury conclusions of which causes are good and which are bad." Volokh added that Thrasher could probably be constitutionally prosecuted under a narrower law.
If convicted of felony harassment, Thrasher could face up to four years in state prison, or up to a year in county jail and a $5,000 fine, Banas said in the August 19 AP Story.
Missouri High School Student Disciplined for Creating Bullying Web Site
A high school freshman in the Troy, Mo., school district was disciplined in October 2009 after she created a Web site to bully another girl, according to an October 14 report in the St. Louis Post-Dispatch.
School officials would not say what kind of discipline the girl received, but under the district's bullying policy, the punishment could range from loss of privileges to expulsion, the Post-Dispatch reported.
The school district alerted the Lincoln County Sheriff's Department after the victim in the case complained to the principal about the Web site, which contained the girl's name, explicit language and photos, comments, and a poll about the girl, the newspaper reported. Lt. Andy Binder, a Lincoln County sheriff's department representative, told the Post-Dispatch that investigators arrested a ninth-grade girl who confessed to creating the Web site, which has since been taken down.
The case was turned over to county juvenile investigators while prosecutors decided whether to press criminal charges, according to the newspaper. Binder said the state would probably not pursue charges under Missouri's cyber-bullying law, Mo. Rev. Stat. section 565.090, because both the suspect and the victim are juveniles, according to an October 15 AP story.
Arthur Bright, a law student at Boston University School of Law, who said he had been the occasional target of bullies as a child, urged authorities not to charge the girl with a crime in an October 16 post on the blog for the Citizen Media Law Project, based at Harvard University's Berkman Center for Internet and Society. "Probably the best thing to do is to look at the way the world actually works," Bright wrote. "And in [the] non-legal world of schoolyard bullies, the bullies generally are kept in line through the oversight of the schools and the parents."
Bright wrote that he feared much of schoolyard bullying could fall under the "recklessly frightens, intimidates, or causes emotional distress" language of the state's harassment law. He suggested the Missouri legislature add a juvenile exception to prevent the issue of schoolyard bullying in the online world from being criminalized.
Charge Dropped Against Texas Girl Arrested Under State's New Online Harassment Law
An online harassment charge against a 16-year-old Texas girl arrested in October under a new state law was dropped within a week of her arrest because prosecutors said her conduct did not meet specific requirements of the law.
Bexar County Assistant District Attorney Cliff Herberg said the girl was not sending messages under an assumed or hidden identity, which is needed for the law to apply, according to an October 16 report in the San Antonio Express-News.
The online harassment law, Tex. Penal Code section 33.07, which took effect Sept. 1, 2009, criminalizes the act of sending e-mails, text messages, instant messages, or communicating through social networking sites with the intent to "harm, defraud, intimidate, or threaten any person." The law only applies to instances in which one uses "the name or persona of another person."
According to the law, it is a third-degree felony if the harassing communication involves creating a Web page or posting messages on a social networking site. Harassment through other forms of electronic communication constitutes a misdemeanor that carries a sentence of up to one year in jail and a $4,000 fine.
In this case, authorities said the girl from Somerset, a suburb of San Antonio, never concealed her identity when sending the messages, according to the Express-News report, which did not detail her alleged harassing behavior.
Great Britain Teenager Sentenced to Juvenile Facility for Bullying on Facebook
An 18-year-old woman who made death threats on Facebook became the first person in Great Britain to be jailed for bullying on a social networking site, British newspaper The Guardian reported on August 21. Keeley Houghton, of Malvern, Worcestershire, pleaded guilty to harassment on August 21 in Worcester Crown Court. She was sentenced to three months in a juvenile offenders' institution, according to The Times of London.
The Times reported that Houghton had updated her Facebook status on July 12 to say: "Keeley is going to murder the bitch. She is an actress. What a [f***ing] liberty. Emily [F***head] Moore." Houghton had two previous convictions in connection with Moore for assault and damaging Moore's property that date back to 2005.
Houghton told police that she wrote the death threats late at night while she was drunk and had no memory of doing so, The Guardian reported. However, police say Internet records show Houghton wrote the threatening message at 4 p.m. on July 12 and kept it on her page for 24 hours. The Daily Mail in London reported that people in Great Britain have previously been jailed for harassment and stalking on social networking sites, but that Houghton is believed to be the first to be jailed for online bullying.
Yasmin Joomraty, a lawyer who specializes in digital media issues, said the online bullying falls under the Protection from Harassment Act. "Though this case does not seem to me to mark a turning point necessarily, people do have to watch what they say online," Joomraty said, according to The Times.
- Cary Snyder
Silha Research Assistant