The House Judiciary Committee's Crime subcommittee yesterday held a hearing yesterday on the painful issues of cyberbullying (webcast). Rep. Linda SÃ¡nchez (D-CA) talked about her bill, the "Megan Meier Cyber Bullying Prevention Act" (H.R. 1966), which would create of a new federal felony to punish cyberharassment, including fines and jail time for violators. Rep. Debbie Wasserman Schultz (D-FL) talked about her bill, the "Adolescent Web Awareness Requires Education Act (AWARE Act)" (H.R. 3630), which would instead allocate $125 million over five years in grants for education and awareness-building about these problems. Without endorsing any particular approach, Adam and I discussed the general advantages of education over criminalization in our "Cyberbullying Legislation: Why Education is Preferable to Regulation" paper published by PFF in June, which we updated and submitted as written testimony. But we really couldn't have done a better job at making this point than Ranking Member Louie Gohmert (R-TX), who powerfully articulated his opposition to the run-away growth of federal criminal law. Chairman Scott (D-VA) also expressed a commendable reluctance to just pass another law and assume that fixes the problem.
Criminalizing what is mostly child-on-child behavior simply will not 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. For all the talk of how to craft a criminal law (especially its definitions) to minimize constitutional problems, I was very surprised that no one at the hearing raised the critical issue of just who it is we're trying to protect and from whom.
As we emphasize in our paper, the real problem here is not cyber-bullying (kids bullying other kids online just as they do on the playground, or cyber-harassment in general (adults being rude to each other online), but the special case of adults harassing kids--and knowing they're doing it. That's not to say that bullying can't be severe or very hurtful, but it's best dealt with by parents, schools and mental health professionals (for both the bullied and the bullies). Given that what's at stake is free expression online, I just don't see any need to create new penalties to restrict conversations among adults: As the lawyers on the panel emphasized, the Supreme Court already recognizes exceptions to First Amendment coverage for "true threats," "fighting words," etc., which are already covered by state laws. But in certain cases where an adult egregiously harasses someone they know is a child over the Internet (what most people assume happened in the Megan Meier case), causing real harm, criminal sanctions might well be appropriate, but no one's yet drafted such a bill.
As Ranking Member Gohmert emphasized, even if such a law could be written to minimize First and Fourteenth Amendment concerns, a critical question of federalism would remain: Should the federal government assert control of an issue of criminal law that has traditionally been left to the states? This is not merely a constitutional question, but a practical one: The federal criminal justice system simply is not equipped to accommodate juvenile defendants. For this reason and because it is still unclear how to write a narrowly tailored law, if criminal sanctions are pursued as a solution, it may be preferable to defer to state experimentation with varying models at this time. Indeed, Rep. Gohmert may be correct that, under the Tenth Amendment, online harassment simply isn't the proper role of the federal government.
I was relieved that Palfrey got no questions about this issue from the Members during the hearing, but the buzz about the issue afterwards in the hearing room left me concerned that we're likely to hear more about this very dangerous, but understandably seductive idea in the near future. "Hard cases make bad law," as lawyers say, and I can all to easily imagine well-justified concerns about cyberbullying leading, with the best of intentions, to "Tort Reform for the Internet" of the worst kind--one that would do serious harm to the profound democratization of content and communications wrought by Web 2.0 tools.