The first rule of Unconstitutional Cyber-Bullying Statute Club is you do not talk about Unconstitutional Cyber-Bullying Statute Club.
One of the problems with the law is that it does not do a great job of preventing jackassery. Talking in the theatre will not result in hard time (though it will result in burning in a special hell). It is not that we as citizens want to endure boorish behavior, it's just that we don’t know how to criminalize rudeness without chilling all other aspects of public interaction. It is in these situations that we rely on a socially enforced notion of decorum. This system works fine when we can see the loutish perpetrator; but we don’t quite know what to do when the little twit is invisible. See Plato, The Republic, 2.359a – 2.360d (recounting the rapid moral decay of an invisible man); cf. South Park, Mystery of the Urinal Deuce (detailing the difficulty of discovering which boy "la[id] out a big fudge dragon [in the boys' room urinal] for all the world to see").
In the wake of several savage bullying cases in which victims have committed suicide, states have passed cyber-bullying statutes targeting online harassment. While these laws are backed by good intentions, the noble motives of a legislature cannot cure the fatal vagueness that will accompany a statute outlawing mean speech. Last week, Louisiana became the latest state to join Unconstitutional Cyber-Bullying Statute Club when it enacted La. Rev. Stat. 14:40.7 criminalizing abusive online conduct:
A. Cyberbullying is the transmission of any electronic textual, visual, written, or oral communication with the malicious and willful intent to coerce, abuse, torment, or intimidate a person under the age of eighteen.
B. . . (2) “Electronic textual, visual, written, or oral communication” means any communication of any kind made through the use of a computer online service, Internet service, or any other means of electronic communication, including but not limited to a local bulletin board service, Internet chat room, electronic mail, or online messaging service. . . .
F. The provisions of this Section shall not be construed to prohibit or restrict religious free speech pursuant to Article I, Section 18 of the Constitution of Louisiana.
While I am sympathetic to the cause, I think it is fairly clear that this statute cannot stand. Professor Volokh has already detailed the vagueness inherent in penalizing "malicious" speech and asked "[w]ould publishing an online editorial — or a blog post — condemning an underage criminal for his crimes qualify as 'malicious and willful intent to . . . abuse [or] torment'?" Until case law develops around this statute, citizens of Louisiana won't know for sure if they are breaking the law by distributing the latest evidence of teenage recklessness and stupidity. See note on decorum supra. This law would seem to prohibit the distribution of several memes; the Star Wars kid comes to mind.
The use of the word "malicious" could signal the legislature’s intent to mirror more traditional harassment statutes that limit their reach to actions that serve no conceivable purpose but to annoy. The problem with this interpretation is that traditional harassment statutes contemplate direct contact between the perpetrator and the victim (repeated phone calls, for example). See e.g. Ky. Rev. Stat. §§ 525.070, 525.080; Speer v. Com, 2007 WL 3317602 (Ky. Ct. App. Nov. 09, 2007) (harasser stalking former lover); and Mosby v. Com, 2008 WL 162858 (Ky. Ct. App. Jan. 18, 2008) (harasser repeatedly contacting and threatening his estranged wife). The new Louisiana statute is far broader: it concerns any communication or general post to the Internet. So if I send a copy of the Star Wars kid to some friends of mine because I think whoosh noises are funny, then perhaps I am safe. But if I send the same file to the same people because I don’t much care for Star Wars kid, is my conduct now criminal?
Louisiana must desperately want to stay in Unconstitutional Cyber-Bullying Statute Club because the statute also preferences religious speech, a big no-no. A religiously motivated tormentor quoting a religious text while harassing a homosexual minor would seem to enjoy greater protection than a standard issue bigot. So even if this statue were not void for vagueness, it would still run afoul of that pesky First Amendment.
I understand the appeal of joining Unconstitutional Cyber-Bullying Statute Club. Members of the legislature get to score political points, society at large feels less guilt over failures to intervene in previous bullying cases, and district attorneys don't need to waste their time on prosecutions that would surely be overturned on appeal.
The problem with this approach is that it lessens the need for strong social enforcement of norms — "I don't need to tell him to shut up, the cops will do it for me." Instead of creating feel-good statutes that will lead to few if any convictions, we should invest our time and money into inculcating children with the idea that words
(even digital words) have real world consequences. Maybe a comparison of bullying to playing with guns or, hell, maybe just repeated viewings of Bambi (if you don’t have anything nice to say . . . ). I don't know what form the intervention should take. I do know, however, that this approach will almost certainly have a greater impact than membership in the Unconstitutional Cyber-Bullying Statute Club.
The second rule of Unconstitutional Cyber-Bullying Statute Club is you do not talk about Unconstitutional Cyber-Bullying Statute Club.
(Andrew Moshirnia is a rising third year at Harvard Law School. He is Jack's smirking revenge.)