I always thought that of all the amendments to the US Constitution, the first one was both the most memorable and the easiest to understand: You can say what you like, outside of the famous “shouting fire” example, and the government can’t stop you. Easy. A toddler could get it.
(My mother taught civics/law and justice for 25 years, and I assure you that when your humble author was a toddler he understood the First Amendment.)
But US Representative Linda Sanchez (D-CA) and 14 other House members are grownups smart enough to get themselves elected to Congress, and they still don’t get it? Sanchez, with 14 cosponsors, has reintroduced the Megan Meier Cyberbullying Prevention Act, which reads:
“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.”
By “electronic means” they mean: any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.
So, that’s 15 US representatives who either don’t understand or are unfamiliar with the First Amendment to the US Constitution. Maybe we should bring my mother out of retirement and require all of our representatives to take her ninth grade civics class before writing legislation.
The bill is named for the poor girl who committed suicide after being harassed online by a classmate’s mother. Though no one (I hope) sympathizes with the heinous actions of Lori Drew, Sanchez should be roundly harangued for exploiting a child’s sad story to manipulate the heartstrings of other legislators to the point Congress passes a law abridging freedom of speech.
See what I did there? If I said that twice, if Sanchez’s feelings were hurt, and a court judged my statement “severe,” I’d be a felon facing two years in prison. I haven’t said anything especially vicious, just harshly criticized a politician on the Internet, but the problem with this cyberbullying legislation is that what words like coercion, intimidate, harass, emotional stress, severe, and hostile are subject to vast differences in interpretation.
Eugene Volokh, professor of law at UCLA School of Law, outlines six ways this law could be abused, which I’ll paraphrase as follows:
- Repeatedly petitioning (harassing) a politician via email using potentially hostile or severe words (hypocrite, fool, traitor).
- Blogs and editorials repeatedly using the same type of language as above.
- Shaming a public figure (intending to cause substantial emotional distress).
- Repeatedly and angrily emailing a company that refuses to refund money owed.
- Online boycotts and petitions.
- Angry emails from a wife to a husband who cheated on her.
It’s potentially limitless the situations to which this language could apply. Though not expressly mentioned in the definition of “electronic means,” the atrociously loose definition could also apply to TV and radio.
A critic in response may argue such scenarios are highly unlikely, but hardly a day goes by I don’t see a story of authority abusing its power for its own reasons. An Orlando police chief threatening a blogger with a defamation suit, his attorney asserting the “truth is not always a defense” in the process, comes to mind. An Alaskan politician outing an anonymous blogger for revenge is another example (talk about cyberbullying!). The ways authority figures have abused their powers are far too numerous to list.
In June 2008, the first time Sanchez tried to introduce this legislation (it never came to a vote before the previous session ended), Volokh succinctly addresses the broadness of the language:
“Its reference to blogs and websites strongly suggests that it deliberately addresses one-to-many publishing media as well as one-to-one email and text messaging — but even without that reference, it would literally cover any ‘communication,’ with no limitation that the communication be sent specifically to the distressed person.”
Yep, even Twitter. No mean tweeting allowed.
Even more succinct is CJ Ciaramella, of the Oregon Communicator: “Rep. Sanchez seems to believe that it aught to be illegal to make someone feel bad.”
Let me be even more succinct: good intentions don’t always make good law.
Cyberbullying, like bullying before there were various electronic means to conduct it, is an unfortunate fact of life, like viruses and skinned knees. I would like to protect my daughter from all those things forever, but I also know that her having to deal with them eventually will make her a stronger, more unflappable adult (who also knows Daddy’s ready to kick some tail if necessary!). In a perfect world, we could legislate niceness, but this world is far from perfect, no matter how much padding we put down to protect our little darlings’ noggins and shins.
This bill is currently under review by the House Judiciary Committee, where, even if committee members appreciate the intent, it will likely meet its Constitutional end. One imagines at least a few on the Judiciary Committee have taken a ninth grade civics course. If not, God help us.
