Knee-jerk reactions by the Congress to particular problems have given us some really bad laws over the years. However, one of the worst examples of such reactive legislation to come down the pike in a long time, has to be something called the “Megan Meier Cyberbullying Prevention Act,” introduced earlier this year by US Rep. Linda Sanchez (D-Calif.). Thankfully, the bill’s author has secured the support of less than a dozen co-sponsors, a fact that greatly diminishes the chances it will pass the House and eventually be signed into law. However, other really bad legislative proposals have snuck through both houses of Congress with little obvious supprt, and been signed into law by various presidents wanting to prove themselves as “tough on crime” as the legislators who voted for the proposals.
This “cyberbullying” proposal is particularly hare-brained; but, as with many such proposals, it tugs at the heartstrings and cites for its justification a particularly unfortunate incident. In this case, the tragedy giving rise to this attempt to “plug a loophole” in the already-vast federal criminal code, was the death three years ago of 13-year old Megan Meier, who was driven to suicide after being harassed on MySpace by a particularly cruel and vicious teenaged neighbor posing as a teenage boy. As with situations that occassionally — and inevitably — arise, the despicable behavior by the tormenting neighbor of Megan Meier, did not fit within existing federal or state criminal laws and was deemed not prosecutable. Into that perceived vacuum steps Rep. Sanchez, bent on expanding the federal criminal code to address what she apparently has concluded is a national problem of immense gravity and immediate concern that is not being met by state legislators and prosecutors.
Unfortunately, the legislative vehicle Rep. Sanchez has devised to address the federal problem she has identified, would work great mischief on federal criminal prosecutions and on the Constitution of the United States.
The principle defect in the “cyberbullying” legislation (HR 1966) lies in the fact that it purports to criminalize certain speech; specifically, speech transmitted by any “electronic means” that is intended to “cause substantial emotional distress to a person.” Doing this would subject the person engaging in such “distressing” electronic communications to two years in the federal prison system. The means of conveying such criminal communications includes e-mails, blogs, websites, telephones, and text messaging.
This legislation represents an exercise in overcriminalization and poor draftsmanship not often seen, even in the Congress. A term as broad and as vague as “intent to . . . cause substantial emotional distress to a person” invites constitutional challenge as being violative of the Fifth Amendment due process guarantee, as well as the First Amendment’s language protecting speech (including political and news media speech). Sending an e-mail or a blog, or even posting a Twitter message that might be particularly insensitive or even downright mean about another person, including perhaps a candidate for office or an incumbent, could land you in jail if Rep. Sanchez’ bill were to become law.
We have more than enough laws, regulations and policies on the books already that attempt to constrain and define speech, including the unsavory kind that the First Amendment to the Constitution in fact protects. We certainly do not not need yet another federal law doing so; especially one as broadly and poorly crafted as the “Cyberbullying Prevention Act.”