Bob Barr, the four term Republican Georgia congressman turned ACLU activist and 2008 Libertarian Presidential candidate, has denounced Rep. Linda Sánchez's (D-CA) "Megan Meier Cyber Bullying Prevention Act" (H.R. 1966) in particularly harsh terms:
This legislation represents an exercise in overcriminalization and poor draftsmanship not often seen, even in the Congress. A term as broad and as vague as "intent to . . . cause substantial emotional distress to a person" invites constitutional challenge as being violative of the Fifth Amendment due process guarantee, as well as the First Amendment's language protecting speech (including political and news media speech). Sending an e-mail or a blog, or even posting a Twitter message that might be particularly insensitive or even downright mean about another person, including perhaps a candidate for office or an incumbent, could land you in jail if Rep. Sanchez' bill were to become law.
Barr touches on many of the key points Adam Thierer and I raised in the written testimony
we submitted to House Judiciary Committee's hearing on this subject back in September--summarized here
. At the hearing, Sanchez declared her intention to revise the bill to incorporate constitutional criticisms. Stay tuned for an update on that front...
But as we noted in our testimony, the constitutional problems with criminalization cannot beeasily remedied, especially since Sanchez seems unwilling to limit her bill to cyberharassment of children by adults (such as allegedly happened in the Megan Meier case)--relying instead on existing cyberstalking laws (a much more narrowly defined crime involving "true threats") to govern conduct among adults, and educational and counseling-based approaches to govern true cyberbullying among children.
Why we haven't heard the last of Sanchez's bill, the more serious threat is likely to be efforts to deputize online intermediaries to "deal with the problem" by chipping away at the broad immunity under Section 230 that has allowed the great flourishing of online content and services involving user generated content and participation. As we noted: