Civil Liberties, Constitutional Law, Criminal Justice, Featured, Mike Krause

Volokh & Krause: Cyberbullying bill violates the First Amendment

On March 12, the Colorado House passed House Bill 1131, on “cyberbullying of a minor.”

While undoubtedly well-intended, the bill as written is an unconstitutional restriction on protected speech, and should be swiftly dispatched by the Colorado Senate.

The bill would criminalize using social media in a way intended to “cause the minor to suffer serious emotional distress, or makes a credible threat against a minor that the actor knows or reasonably should know will be communicated to or viewed by the minor, commits cyberbullying if the conduct results in serious emotional distress to the minor.”

Now the punishment for making credible threats seems quite sensible. Such threats are constitutionally unprotected, and should indeed be punished. But the ban on intentionally causing “serious emotional distress” to a minor is far broader, and runs afoul of the First Amendment.

An example of the kind of conduct this law might cover is a 17-year-old girl who learns that her 17-year-old boyfriend was cheating on her, and harshly condemns him in Facebook posts, hoping that her friends will socially ostracize him.

Another example of a potential new cyberbullying criminal is a newspaper columnist or blogger who excoriates an underage criminal — or cheating high school athlete — several times, hoping that the criminal or cheater will feel ashamed and publicly condemned.

Or consider a high school student who repeatedly emails friends, teachers or parents about another student’s bullying or racist epithets or cheating, hoping and expecting that someone will admonish the student and shame him into changing his ways or at least admitting his guilt.

The bill defines social media as “any electronic medium” that lets people share user-generated content, expressly including e-mail and blogs, and by implication also covering Facebook, Twitter and the like.

So, each of these people would end up being a criminal under the proposed bill, so long as the person is found to have intentionally created serious emotional distress.

But what constitutes “serious emotional distress” is ill-defined and wide open to arbitrary enforcement. For instance, the bill specifically states that a victim of cyberbullying “need not receive professional treatment or counseling as proof that the victim suffered serious emotional distress.”

That is hardly the kind of clarity we should expect from a criminal statute.

And beyond this, some speech is constitutionally protected even if it is intended to cause “serious emotional distress.” Each of the above examples may be seen by a prosecutor, judge or jury as likely to cause “serious emotional distress,” and thus be criminal conduct under this bill.

Yet the First Amendment protects the speech in those examples.

We realize that people are worried about teenagers taunting one another online. In a few situations (fortunately, a tiny fraction of all taunting incidents) such taunting has contributed to teenagers’ suicide. But we’re not sure there’s any way of clearly defining which distressing speech about minors should be criminal and which shouldn’t be — any more than there’s a way of clearly defining, for instance, which emotionally cruel romantic breakups (a form of cruelty that has at times also led to suicide) should be criminal.

And, in any event, this statute surely doesn’t offer any such distinction. It isn’t limited to speech to a person (as traditional telephone harassment statutes have done, for instance) but also covers speech about a person.

It covers any online communications that intentionally inflict serious emotional distress, however commonplace and justifiable they might be.

It even covers speech on publicly significant topics, such as crime or cheating by juveniles, as well as speech about people’s daily lives (such as romantic breakups).

We hope the Colorado Senate recognizes the significant constitutional problems with this bill and acts appropriately.

Eugene Volokh teaches free speech law at UCLA School of Law. Mike Krause directs the Justice Policy Initiative at the Independence Institute, a free market think tank in Denver.


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