By Kristin Billera

The Democratic California Congresswoman Linda Sanchez has introduced a bill in the House which purports to criminalize cyberbullying and could have serious 1st Amendment implications.

The Megan Meier Protection Act, named for the 13 year old girl who killed herself after being tricked into believing a boy she liked was insulting her on Myspace, says:

(a) Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.

(b) As used in this section–

(1) the term ‘communication’ means the electronic transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received; and

(2) the term ‘electronic means’ means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.

That’s it. No definition for “intimidate”, no standards for “substantial emotional distress,” and so on. Professor Eugene Vokloh of UCLA Law School points out that there are a number of situations where the vague language in the bill could lead to problematic constitutional violations including where a customer may be angrily complaining about not receiving a refund or an hostile messages sent back and forth between a couple who is  breaking up. Even the British newspaper, The Guardian, called the bill a “threat to free speech” in its headline.

The words that this bill is designed to criminalize differs greatly from current categories of speech that the Supreme Court has found to be unprotected speech. It goes beyond the scope of actual threats made to a person’s safety, such as in Watts v. United States, by criminalizing words that are merely “hostile” or “intimidating.” It also is outside the scope of “fighting words,” which was narrowly defined in Chaplinsky v. New Hampshire as words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” When “fighting words” are used online, the level of immediacy that makes them a threat to people’s safety is removed.

Beyond the vagueness in the bill, which is frightening enough, the penalty for violating the law is jail time. I’m inclined to believe tort law, namely intentional infliction of emotional distress, is sufficient to handle cyberbullying cases which are so severe that they are outside of the realm of childhood teasing. Criminalizing speech could be disastrous, especially given that the vagueness in the bill could be easily manipulated and abused to apply to many situations where speech should have been protected.

Even if this bill doesn’t pass, it appears that Congress is beginning to catch on to the new problems raised by the lack of Internet regulation and the days of the Wild West ambience on the Internet may be numbered.

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