Academic journal article Vanderbilt Law Review

Constitutionality of Cyberbullying Laws: Keeping the Online Playground Safe for Both Teens and Free Speech

Academic journal article Vanderbilt Law Review

Constitutionality of Cyberbullying Laws: Keeping the Online Playground Safe for Both Teens and Free Speech

Article excerpt

I. INTRODUCTION

The Internet is a blessing and a curse.1 Along with the manifold benefits the Internet provides - electronic research, instantaneous news, social networking, online shopping, to name a few - comes a host of dangers: online harassment and cyberbullying, hacking, voyeurism, identity theft, phishing, and perhaps still more perils that have yet to appear.2 The Internet creates a virtual world that can result in very real consequences for people's lives. This creates a challenge for parents, schools, and policymakers attempting to keep pace with rapidly developing technologies and to provide adequate protections for children. The even greater challenge, however, is to balance these vital protections with the equally compelling freedoms of speech, expression, and thought.3

The heart-wrenching suicide of Missouri teenager Megan Meir in 2006 directed national attention to the devastating effects of online harassment and cyberbullying.4 Megan was a thirteen-year-old middle-school student who engaged in an online relationship with a purported fellow teen, Josh Evans, through the popular socialnetworking website MySpace.5 What began as a friendly and flirtatious exchange of messages escalated into a barrage of cruel and insulting attacks that drove Megan, who suffered from clinical depression, to take her own life.6 Megan's mother found her hanging in her closet by her neck from a belt the day of Josh's final posting: "The world would be a better place without you."

In a tragic twist of events following Megan's death, her parents discovered that Josh Evans never existed.7 Instead they found that Lori Drew, an adult neighbor and mother of one of Megan's female friends, created the profile in order to learn Megan's opinion of her daughter.8 Sadly, the hoax escalated far beyond that initial intent.

Megan's story is not unusual; sadly, cyberbullying occurs in many forms and contexts throughout the country.9 The problem primarily impacts youth, arguably the subset of our population most deserving of legislative protection.10 According to the National Crime Prevention Counsel, 43 percent of teens have been victims of cyberbullying, but many are too ashamed or embarrassed to report the incidents to their parents or other authorities.11

The breadth and severity of cyberbullying demands a response from communities, parents, schools, and legislatures. However, regulation of online speech treads on delicate constitutional territory. In our efforts to make the Internet safer, we must be cautious not to erode the freedom of speech guaranteed by the First Amendment. While the problem of cyberbullying urgently requires a solution, policymakers should avoid the temptation to enact knee-jerk legislation that may be overly broad or create unintended consequences that restrict the freedom of expression.

This Note examines cyberbullying, focusing primarily on its impact on youth, and explores a legislative response to the problem. Part II demonstrates the need for legislation by highlighting the inadequacy of current tort and criminal laws to address cyberbullying. Part III surveys existing and proposed cyberbullying legislation and identifies trends in those laws, most of which address cyberbullying within the public-school context. Part IV identifies potential First Amendment challenges to existing and proposed cyberbullying laws in light of student speech jurisprudence. It then critiques the effectiveness of cyberbullying laws to curtail the problem without trampling First Amendment rights.

Part V offers several constitutional solutions to alleviate cyberbullying, including suggestions for how cyberbullying laws can be crafted to address the problem of online bullying while not eroding First Amendment freedoms. This Part also suggests revision of the Communications Decency Act to create qualified liability for Internetservice providers through which cyberbullies torment their victims in order to encourage these companies to take rational steps to limit the use of their services to perpetuate cyberbullying. …

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