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Sympathy for the Cyberbully

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

Series:

Arthur S. Hayes

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.

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Preface

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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.

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