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Sympathy for the Cyberbully

How the Crusade to Censor Hostile and Offensive Online Speech Abuses Freedom of Expression

by Arthur S. Hayes (Author)
Textbook XVIII, 252 Pages
Series: Communication Law, Volume 6

Summary

In the first systematic account of judicial rulings striking down cyberbullying laws in the United States and Canada, Sympathy for the Cyberbully offers an unapologetic defense of online acid-tongued disparagers and youthful and adult sexters. In the first decade of the 21st century, legitimate concerns about the harmful effects of cyberbullying degenerated into a moral panic. The most troubling aspect of the panic has been a spate of censorship—the enactment of laws which breach long-standing constitutional principles, by authorizing police to arrest and juries to convict, and schools to suspend, individuals for engaging in online expression that would be constitutionally protected had it been communicated offline. These hastily drawn statutes victimize harsh critics of elected officials, scholars, school officials and faculty, distributors of constitutionally protected pornography, adolescents "talking smack," and teens who engage in the consensual exchange of nude images, even in states where teens of a certain age enjoy the right to engage in sexual relations. The victims’ stories are told here.
Sympathy for the Cyberbully is suitable for undergraduate, graduate and law school courses in media law, First Amendment law and free expression.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the author(s)/editor(s)
  • About the book
  • This eBook can be cited
  • Contents
  • Preface
  • Notes
  • Acknowledgment
  • Chapter 1: Anti-Cyberbullying Laws: A Sober Analysis through the Moral Panic Theory Lens
  • Moral Panic Theory
  • Moral Panic in the Age of the Social Media
  • Studies on Cyberbullying as a Moral Panic: A Literature Review
  • Content Analysis: Concern, Hostility, Consensus, Disproportionality and Volatility
  • Concern
  • Hostility
  • Consensus
  • Disproportionality
  • Volatility
  • Conclusion
  • Notes
  • Chapter 2: Cyberbullying and Free Speech
  • The First Amendment Makes Criminalizing Cyberbullying Complicated and Nuanced
  • Defining Cyberbullying
  • A Taxonomy of Cyberbullying Statutes
  • Free Speech Values
  • Free Speech Rights
  • Overbreadth
  • Vagueness
  • Strict Scrutiny
  • Overcriminalization
  • Cyberbullying: A Concept with Many Faces
  • “Vehement, Caustic, and Sometimes Unpleasantly Sharp Attacks”
  • Public School-related Cyberbullying Statutes
  • Criminalizing Cyberbullying by School students
  • Criminal Harassment
  • The Meagan Meier Law
  • In New York, You Have the Right to be Annoying
  • True Threats and Fighting Words
  • State and Federal Cyberstalking Statutes
  • Teen Sexting or “Youth-Produced Sexual Images”
  • Adult Sexting: Revenge Porn, or Non-Consensual Distribution of Intimate Images
  • The Morality of Indignation Makes Bad Law
  • Notes
  • Chapter 3: The Unnecessary and Unjust Creation of Virtual Juvenile Delinquents
  • Accused and Convicted
  • New York
  • North Carolina
  • What Not to Criminalize When Banning Cyberbullying
  • More Flawed Statutes
  • Conclusion
  • Notes
  • Chapter 4: “Enclaves of Totalitarianism”
  • The Nation’s Toughest and Most Comprehensive Anti-Bullying Statute Directed at Schools
  • Beyond the Tinker Analysis
  • The Rise of Anti-Bullying School Laws
  • Harmless Tweets
  • “Get Off the Crazy Train?”
  • Defining “Harassment, Intimidation and Bullying”
  • Constitutional Challenges
  • Conclusion
  • Notes
  • Chapter 5: Censorship Redux: The 21st Century Attack on the First Amendment Right of Public Criticism by the Use of Cyberharassment, Cyberstalking and Online Impersonation Laws
  • Fear of the Internet’s One-to-Many Communicative Powers
  • People v. Golb
  • Identity Theft, Fraud and Online Impersonation
  • Texas Courts Wrestle with Criminalizing Online Impersonation
  • Rhode Island v. John Leidecker
  • Cyberharassment and Cyberstalking
  • Lacking “Civic Courage”
  • U.S. v. Cassidy
  • Chan v. Ellis
  • Is “Cyberbullying” Ethical?
  • Connecticut: Harassment and Breach of Peace in Cyberspace
  • Did Buhl Intend to Intimidate by Threatening Violence?
  • Non-Expressive Harassment
  • Breach of Peace
  • Conclusion
  • Notes
  • Chapter 6: Image Control: Who Loses When Teen Sexting and Revenge Porn Are Criminalized?
  • Free Speech, Teen Sexting and Revenge Porn
  • Criminal Intent, Teen Sextng and Revenge Porn
  • Teen Sexting, Revenge Porn: Privacy and Consent
  • Teen Sexting, the Age of Consent and Victims of Incoherent Laws
  • Teen Sexting: Criminalizaton or Decriminalization?
  • Revenge Porn
  • Mens Rea and the First Amendment
  • Arizona
  • Vermont, Obscenity and Strict Scrutiny
  • Rhode Island
  • The Proposed Federal Intimate Privacy Protection Act (IPPA)
  • Conclusion
  • Notes
  • Chapter 7: The Short Life and Quick Death of the First Cyberbullying Law in Canada (August 6, 2013–December 10, 2015)
  • Global Phenomenon
  • Free Expression in Canada
  • Section 2(b) Fundamental Rights
  • Section 1, Fundamental Rights
  • Fairness, Rationally Connected, Overbreadth, Vagueness and Proportionality
  • Vagueness, Overbreadth and “Reading Down”
  • Arbitrariness
  • Vagueness, Overbroad and Reading Down
  • Crouch v. Snell
  • Conclusion
  • Notes
  • Cases Index
  • Subject Index
  • Series index

| vii →

PREFACE

Sympathy for the Cyberbully: How the Crusade to Censor Hostile and Offensive Online Speech Abuses Freedom of Expression offers a defense for online acid-tongued disparagers and youthful and adult sexters who have been victims of cyberbullying laws. Not all anti-cyberbullying laws. Just the ones that do not conform to well-settled free speech and due process principles, which is to say the vast majority of such statutes, as well the attempts by public school administrators to rein in off-campus student cyberspace speech.

In the first decade of the 21st century, sincere concerns about the harmful effects of cyberbullying degenerated into moral panic, as this text documents. The most troubling aspect of the panic has been an ensuing spate of censorship—the creation of laws authorizing police to arrest, judges to issue restraining orders to censor online speech and juries to convict teens and adults for engaging in online expression that would have been constitutionally protected had it been communicated offline. Even among legislators, as the accounts provided here show, clarity, nuance and reflection mattered little when the panic set in.

Apologists argue that legislators had the best intentions when they enacted laws criminalizing disparaging and abusive cyberspeech. They wanted only to protect individuals from embarrassment, emotional distress and exploitation ← vii | viii → by criminalizing cyberharassment, online impersonation, cyberstalking, youthful sexting and non-consensual sharing of sexually explicit photos, commonly called revenge porn.

A skeptic, however, would be remiss if he failed to note that many law makers were motivated by expediency and ignorance, if not timidity, when confronted with the hot-button issue of cyberbullying. Few elected officials wished to be seen as insensitive to the demands of outraged parents, mortified divorcees and ex-girl friends and their fellow anti-cyberbullying crusaders. In contrast, it’s quite easy to ignore the rights of a foul-mouthed teen, a mischievous lawyer pulling a prank on a politician with an online impersonation or a jilted lover posting nude photographs of a former intimate partner, all widely perceived as egregious violations of social norms.

Meanwhile, the U.S. Supreme Court has offered no comprehensive approach to determining the limits imposed on public schools to regulate off-campus cyberspeech. In its absence, school administrators, often aided by recently enacted laws, have expanded their censuring authority at the expense of student free speech rights.

Much of the impetus for the scramble in recent years to censor cyberbullying stems from the spate of youthful suicide-related cyberbullying incidents that drew worldwide media coverage. Though the 13-year-old Megan Meier’s suicide in October 2006 was not the first reported incident of suicide attributed to online harassment, it quickly became the most inflammatory case of online bullying. Meier, of Dardenne Prairie, Missouri, hanged herself. Her suicide was attributed to a cruel hoax that a mother of a friend of hers, Lori Drew, had perpetrated via the social networking site, MySpace. Drew soon became, as one Australian newspaper put it, “America’s most reviled mother.”1

The shock and outrage felt by many about Drew’s behavior was compounded by a sense of powerlessness—prosecutors could not turn to a statute that specifically banned Drew’s expressive conduct because no such laws existed. In response, Missouri enacted the Megan Meier Law in 2008, though a proposed federal version, the Megan Meier Cyberbullying Prevention Act, failed.

Soon after, other state lawmakers enlisted in the crusade to wipeout what many saw as an epidemic of unacceptable online speech that caused emotional and psychological problems such as anxiety, depression, annoyance, anger, embarrassment, low self-esteem and suicidal ideation; in short, online speech that offended, criticized others, or made them feel bad about themselves. In Canada, similar youthful suicides involving Amanda Todd and Rehtaeh Parsons, spurred the passage of the Nova Scotia’s Cyber-safety Act ← viii | ix → and C-13, the Protecting Canadians from Online Crime Act). Such legislators, however, conveniently ignored the undisputed fact that the alleged causal link between cyberbullying and suicide has no scientific support and that cyberbullying-linked suicides are multi-causal. In the incidents involving Todd and Parsons, for example, offline bullying played as prominent a role as online bullying.

The legislators, here and in Canada, which has similar constitutional protections for free speech, also ignored the wise counsel of civil libertarian lawyers. In the U.S., just about every time lawmakers proposed cyberbullying legislation, civil libertarians—the ACLU and the Electronic Frontier Foundation (EFF), for the most part—reminded them about the gravity of more than 50 years of First Amendment precedents protecting harsh and offensive expression.

Be careful how you draft these laws, they advised lawmakers. You must define cyberbullying—an extremely elastic concept as used by sociologists, psychologists and lay people—narrowly. Otherwise, they warned, the statutes will be highly vulnerable to constitutional challenges of overbreadth and vagueness. A statute is unconstitutional overbroad when it deters individuals from exercising their legitimate rights. A statute is unconstitutionally vague when a person of ordinary intelligence cannot determine the kind of conduct the law forbids. (Cyberbullying harassment statutes are also subject to strict scrutiny analysis.)

They also reminded legislators that the U.S. Constitution imposes strict limits on legislative authority to devise new types of constitutionally unprotected speech. Anti-cyberbullying laws, which are content-based restrictions on expression, can only criminalize speech that falls within the established proscribed categories—true threats, fighting words, incitement, speech integral to criminal conduct, intentional infliction of emotional distress, obscenity and fraud—unless there is a long tradition of regulating the speech. At the risk of stating the obvious, there is no long tradition of regulating hostile, offensive or abusive cyberspeech.

Public school students have free speech rights, too, First Amendment lawyers reminded school administrators and legislators. Generally, schools can only sanction students for lewd or obscene content and speech advocating illegal drug use, and speech that causes or threatens to cause substantial disruption to the school environment, or infringes on the rights of others.

Free-speech advocates, however, were widely ignored. Generally, lawmakers defended their actions arguing that the cost to society’s well being was too ← ix | x → great to conform to free speech precedents, that the effects of cyberspeech were more pernicious than offline speech, or that the new cyberbullying statutes were constitutionally sound despite their obvious flaws, well obvious at least to a free-speech advocate.

By early 2014, almost every state had enacted laws criminalizing online hostile expression. Some states amended their offline criminal harassment and stalking laws to cover online speech. Others crafted new laws aimed solely at online speech. States also passed laws and imposed policies authorizing public schools to discipline cyberbullies.

By 2011, however, a countertrend emerged. Accused and convicted cyberbullies fought back. And by 2016, several convicted cyberbullies prevailed on appeal as judges struck down cyberbullying state statutes for the very reasons civil libertarians had cited early on—the statutes were unconstitutional vague or overbroad, or both. During those five years, courts here and in Canada, struck down 15 cyberbullying statutes.

Grounded in moral panic, framing, First Amendment free speech and criminal law analysis, Sympathy for the Cyberbully tells the stories of the accused and convicted cyberbullies who successfully challenged the constitutionality of the new breed of censorship.

Chapter 1, “Anti-Cyberbullying Laws: A Sober Analysis through the Moral Panic Theory Lens,” reviews framing studies of news coverage of cyberbullying incidents and applies moral panic theory analysis to media coverage of cyberbullying, with an emphasis on the plight of middle-school students Katelyn Roman and Guadalupe Shaw, of Polk County, Florida.

In Fall 2013, Roman and Shaw were the victims of an overzealous and moralizing sheriff who arrested them on stalking charges with the implication that their online taunts drove another girl to commit suicide. The news media mostly aided and abetted the sheriff’s crusade to brand the girls as remorseless cyberbullies. It turned out, however, the sheriff’s arrests fell apart once the local prosecutor examined the case.

Communication studies framing analysis identifies how the media structure meaning by their editorial choices—how they characterize political, economic and social controversies and their actors, and which assertions they accept uncritically, such as the myth that a causal connection exists between cyberbullying and suicide. Moral panic theorists argue that periodically society—aided by media coverage and moral crusaders—overreacts to cultural or technological change by branding groups, individuals and cultural trends as existential threats to social stability. Over the years, these social ← x | xi → deviants have included witches, horror comic books, rock and roll music, urban youth of color and the widespread belief in the 1990s that pedophiles lurked everywhere.

In such an environment of fear, moral crusaders and lawmakers typically turn to tough criminal punishment as the only solution to combat an imagined or exaggerated threat when civil sanctions, further discussion, investigation, education or no collective public response at all would suffice. This first systematic moral panic analysis of the cyberbullying phenomenon helps to explain the public’s misconceptions about the constitutional validity of censoring cyberbullying and why so many lawmakers have endorsed poorly written and constitutionally flawed statutes to combat the supposed menace.

To provide readers with a basic understanding of the constitutional foibles of censuring cyberbullying, Chapter 2, “Cyberbullying and Free Speech,” identifies the current state of First Amendment free speech doctrines and criminal due process principles that limit government authority to censure or regulate abusive, offensive and dangerous speech, the categories of state cyberbullying statutes and tracks recent rulings in which courts have struck down cyberbullying laws or stayed the hands of disapproving school administrators.

Chief among the outlawed forms of abusive cyberspeech is cyberharassment and the related cyberstalking. Almost every state has chosen to codify cyberbullying as illegal electronic harassment, for example. Yet, cyberharassment statutes have been the first to fall because of their unclear or misapplied criminal intent requirements, the failure by legislators to limit the statutes’ scope to traditional categories of constitutionally unprotected speech, such as true threats, and their misapplication to speech posted for the world to see but never sent to the target’s email, social media page, twitter account or smartphone by the alleged cyberbully. UCLA law professor and blogger Eugene Volokh has characterized this distinction as “one-to-one speech vs. one-to-many speech.”2 Volokh argues that traditionally “one-to-one” speech—offline unwanted communications sent to a specific individual—has not been protected under the First Amendment. In contrast, unwanted speech about a person sent to willing listeners has traditionally been protected. Yet, many recently enacted cyberharassment statutes target online one-to-many speech, which he argues is unconstitutional except for when speech falls within the traditional categories of unprotected speech.

As Chapter 3, “The Unnecessary and Unjust Creation of Virtual Juvenile Delinquents,” documents, teens living in North Carolina and a New York ← xi | xii → county who engaged in merely talking smack, thrash, harshly teasing others or spreading rumors online risked criminal prosecution under cyberbullying laws adopted in 2009 and 2010, respectively.

At first, several accused high school students in both states capitulated and plea-bargained. Because they risked being branded a criminal, a mark that might haunt them in their efforts to attend college or find jobs, avoiding trial was a safe and reasonable tactic.

Richard Bishop, of North Carolina, and Marquan Mackey-Meggs of New York, however did not play it safe, and the First Amendment free speech protections have been bolstered as a result.

The Albany County of New York statute predicated criminal culpability on intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person. The North Carolina statute required a finding of intent to intimidate or torment a minor. The highest courts in each state, however, found the statutes unconstitutional mostly because the intent standards were poorly defined and allowed prosecutors to target constitutionally protected speech. One lesson to be drawn from the two rulings is that a cyberharassment statute banning speech that merely annoys, pesters, intimidates, torments or alarms is unlikely to survive constitutional scrutiny.

Chapter 4, “Enclaves of Totalitarianism,” explores the legality of state anti-bullying school statutes that implicate cyberspeech by examining New Jersey’s Anti-Bullying Bill of Rights Act. The New Jersey law is widely considered the toughest and most comprehensive anti-bullying statute directed at schools in the nation. But prolific tweeter and high school student Bethany Koval’s successful online protest against attempts by school administrators to punish her exposed the flaws in the language and enforcement of the statute.

Like many states, the New Jersey law muddies the distinctions between terms such as bullying, harassment and intimidation, allowing schools to sanction students for online speech that includes constitutionally protected unintended verbal slights and emotionally charged political statements. The statute, however, has survived challenges at the state administrative law level. The only challenged raising federal constitutional due process concerns was settled out of court. This chapter, focusing on Koval’s out-of-court triumph, argues that the New Jersey statute and similar state laws are highly unlikely to survive First Amendment overbreadth and vagueness challenges.

Chapter 5, “Censorship Redux: The 21st Century Attack on the First Amendment Right of Public Criticism by the Use of Cyberharassment, ← xii | xiii → Cyberstalking and Online Impersonation Laws,” addresses what is perhaps the most disturbing aspect of the anti-cyberbullying crusade—the abuse of cyberharassment, cyberstalking and criminal impersonation laws to make criminals out of adults who mock, parody, scorn and vilify private and public figures engaged in matters of public concern. A citizen’s right to disparage individuals involved in public controversy lies at the heart of First Amendment free speech protections. The U.S. Supreme Court affirmed that principle in its landmark ruling, New York Times v. Sullivan (1964), when it noted that the U.S. has “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”3 Yet, between 2011 and 2016, eight accused or convicted adult cyberbullies had to seek reaffirmation from judges that the profound national commitment to protect the right to criticize extended to cyber space. Chapter 5 tells their stories.

Chapter 6, “Image Control: Who Loses When Teen Sexting and Revenge Porn Are Criminalized?” delves into the use of the Internet to exchange or distribute private sexually explicit photographs. Teens who engage in the consensual sharing of sexually explicit photos of themselves online are probably the most sympathetic type of cyberbully. Conversely, adults who post sexually explicit photos of other adults without consent are widely considered reprehensible. Nevertheless, the censoring of both types of sexting is likely to continue to inflict injustices.

The cases of high school students Cormega Copening and Brianna Denson, both of Fayetteville, N.C., are offered in this chapter as an example of one type of injustice created by the criminalizing of consensual teen sexting. Under North Carolina law, Copening, 17, and Denson, 16, had the right to engage in sexual relations in the real world—the age of consent is sixteen in North Carolina—but not in the virtual version. Thus, when their private sexting photos wound up in the hands of law enforcement, they were charged with sexual exploitation of a minor under a state law targeting individuals who sexually exploit and abuse children and with creating child pornography. The indictment was recognized as a travesty of justice worldwide, but the local prosecutors did not back down. Instead, the teens reached a plea bargain for misdemeanor charges.

The problem with banning nonconsensual adult sexting, or revenge porn, is mostly in the wording of the statutes, Chapter 6 argues. One faction promoting the adoption of such laws argues that statutes must require prosecutors ← xiii | xiv → to prove that a defendant intended to cause harm, including emotional and reputational harm or financial loss, by knowing disclosure. A statute that fails to require intent to harm is unlikely to meet constitutional due process standards, argues a minority of feminist lawyers promoting revenge porn laws.

In contrast, the most ardent and influential promoters of such bans, led by law professor Mary Anne Franks and the Cyber Civil Rights Initiative (CCRI), insist that statutes require only that the accused knew that publication required consent, or acted recklessly or negligently in publishing the photos without consent. An intent to harm requirement, Franks contends, is little more than a loophole that would allow defendants motivated by desires to entertain, make money, or achieve notoriety slip through. But the CCRI’s preferred statute puts unwitting third parties at risk, who, for example, may see a nude photo online and share it with others without knowledge of its origins.

By late 2016, the revenge porn law advocates had suffered judicial setbacks in Arizona and Vermont and a veto of a bill by Rhode Island Governor Gina Raimondo. Accordingly, this book argues that a constitutionally sound revenge porn statute must include an intent to cause serious emotional distress or harm requirement, link disclosure to a breach of reasonable expectation of privacy, provide a public interest and newsworthiness exemption, explicitly shield third parties like websites from culpability unless they extort victims for financial gain and ban only images that would be considered obscene under the three-prong Miller v. California obscenity test.4

Nevertheless, as this book went to press, none of the 34 state revenge porn statutes or the proposed Federal Intimate Privacy Protection Act conformed to this standard.

Lastly, Chapter 7, “The Short Life and Quick Death of the First Cyberbullying Law in Canada (August 6, 2013–December 10, 2015),” profiles the Nova Scotia’s Cyber-safety Act, the first cyberbullying statute in Canada. Cyberbullying, and efforts to ban it, is a near global phenomenon. U.S. and Canadian free speech law, however, are related and outliers even among Western democracies.

U.S. and Canada share a free expression tradition dating back to the mid-1600s, have single document written constitutions, share similar free speech and due process doctrines and Canadian courts are not averse to citing U.S. precedents. Thus, the demise of the Cyber-safety Act—the Supreme of Court of the Nova Scotia province struck it down in December 2015 as irrational, arbitrary, vague, overbroad and an infringement on fundamental rights under ← xiv | xv → the Canadian Charter—underscores the threat that cyberbullying legislation, passed in the frenzy of a moral panic, poses to the liberal free speech tradition.

Based on the analysis presented in Sympathy for the Cyberbully, this author offers the following suppositions:

Details

Pages
XVIII, 252
ISBN (ePUB)
9781433141522
ISBN (PDF)
9781453917251
ISBN (MOBI)
9781433141539
ISBN (Hardcover)
9781433132124
ISBN (Softcover)
9781433132117
DOI
10.3726/978-1-4539-1725-1
Language
English
Publication date
2017 (August)
Published
New York, Bern, Berlin, Bruxelles, Frankfurt am Main, Oxford, Wien, 2017. XVIII, 252 pp.

Biographical notes

Arthur S. Hayes (Author)

Arthur S. Hayes, J.D., is Associate Professor of Communications & Media Studies at Fordham University. He is the author of Mass Media Law: The Printing Press to the Internet (Peter Lang, 2013) and Press Critics Are the Fifth Estate: Media Watchdogs in America (2008).

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