South Florida Cyber Crime Criminal Defense Lawyer on Cyber Bullying Bill

May 13, 2009 by David S. Seltzer

As a cyber crime criminal defense lawyer in Miami, I have followed the sad story of Megan Meier and Lori Drew with interest. As you may remember, 13-year-old Meier committed suicide in 2006 after flirtatious messages from a boy she met on MySpace changed into cruel words. After Meier’s death, it was revealed that “Josh” was really Drew and an employee, who had created the profile to antagonize the girl after she had fought with Drew’s own teenaged daughter. Despite public outrage, Drew was not prosecuted for the death because her behavior was not a crime at the time. Instead, federal prosecutors charged and eventually convicted her for the cyber crime of unauthorized access to a computer, for lying about her identity online.

In response, several states (including Florida and Meier’s home state of Missouri) passed laws that made cyber bullying a crime. Now, the St. Louis Post-Dispatch reports that a congresswoman from California has introduced federal legislation that would do the same. The Megan Meier Cyberbullying Prevention Act would outlaw repeated electronic communications meant to cause substantial emotional distress to the recipient. And that’s the trouble -- according to critics, it essentially outlaws free speech. The article quotes UCLA law professor Eugene Volokh, an expert on Internet and free speech issues, saying that the language of the law “cannot possibly be constitutional,” and that he expects courts to strike it down if it passes.

Judging by the language of the law, the professor may be right. The language at issue outlaws any communication (in interstate or foreign commerce) “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.” Those convicted face a fine, up to two years in prison or both. Under this language, I believe a recently divorced couple could be criminally charged for saying unkind things about one another online. In fact, it isn’t clear whether the messages would have to be sent directly to the other person, or if a message to a third party would be sufficient to break the law, as long as it was leaked and caused substantial emotional distress.

I might also be concerned about the vagueness of “substantial emotional distress” itself -- what was extremely upsetting to Meier might feel different to an adult or another teenager. Furthermore, it’s hard to predict who may be able to view comments online. As a South Florida cyber crime criminal defense attorney, I know that accounts can be compromised, messages mis-addressed and technology can break down -- and that’s without any viruses or government investigation. And then there’s the difficulty of proving intent -- not a constitutional issue, but a problem well-known to Fort Lauderdale cyber crime criminal defense lawyers like me.

Saying mean things about others online may not be the noblest application of free speech, but it is protected speech nonetheless. While I agree that Drew’s behavior was unacceptable, Congress should consider looking to tested state cyberbullying statutes for ways to bring their good intentions in line with the U.S. Constitution.