West Virginia Bill Would Make ‘Cyberbullying’ Illegal

Published June 1, 2009

A West Virginia state senator has introduced a bill to make it a crime to send harassing or abusive emails “which are false and designed to entice or encourage other people to ridicule or perpetuate the untruth about that person.”

The West Virginia Computer Crime and Abuse Act (Senate Bill 740), authored by state Sen. Mike Green (D-Raleigh), would make posting harassing or abusive comments online a misdemeanor punishable by a fine of up to $500, up to six months in jail, or both. The potential fines and jail time would double on a second offense.

Green contends the law is necessary to combat “cyberbullying,” which he said led a girl in his district to attempt suicide this year.

Bill Called ‘Problematic’
Andrew Grossman, a legal analyst at The Heritage Foundation in Washington, DC, said he finds the proposed law “very problematic.”

“In many instances this law would direct criminal sanctions to behavior that is not inherently criminal,” Grossman said. “I can imagine many prosecutions that run roughshod over free-speech protections. This is a heavy hammer.”

Daren Bakst, a legal and regulatory analyst at the John Locke Foundation in Raleigh, North Carolina, agrees Green’s bill raises serious constitutional questions. He says the fundamental premise of the bill is faulty.

“We shouldn’t criminalize speech, and we shouldn’t think that because speech is online it is somehow more sinister,” Bakst said. “We don’t need to send people to jail for being mean. This bill goes that far.”

Constitutional Questions
“There are significant constitutional problems with the bill, too,” Bakst added. “For example, under the First Amendment a public figure can only win a defamation suit if the individual can prove ‘actual malice,’ which means that the defendant knew a statement was false or had a reckless disregard for the truth. In Sen. Green’s bill, there’s no ‘actual malice’ requirement.”

What’s more, Bakst wonders how SB 740 could be enforced if passed.

“I find it difficult to envision how this bill could be enforced given the level of subjectivity that exists,” Bakst said. “Sen. Green wants to create a speech police. If passed and enforced zealously, West Virginia may have to build prisons just for bloggers. As drafted, SB 740 appears to criminalize defamation.

“Defamation should not be criminalized, regardless of whether it is offline or online speech,” Bakst said.

ACLU Objects, Too
The American Civil Liberties Union also has voiced objections to SB 740—a development both Grossman and Bakst applaud.

“The legislation is really a poor fit,” Grossman said. “Criminal law is not really applicable to this sort of conduct,” said Grossman.

“There’s nothing laudable about pushing overbroad bills that chill speech,” said Bakst.

Serious Problem, Poor Remedy
Adam Thierer, an Internet regulation analyst at the Progress & Freedom Foundation in Washington, DC, believes cyberbullying is a serious issue but laws like Green’s will not work.

“We need to set up intervening and mediating strategies that identify and deal with serious cyberbullying and harassment problems that develop online,” Thierer said. “We need to encourage more efforts to flag inappropriate behavior online. This is a serious challenge, and it requires a layered approach of many different strategies. There is no silver bullet, which is what this legislation purports to be.

“Cyberbullying is a serious problem, but as it has been through history, kids can be really mean to each other,” Thierer added. “We do, however, have one advantage today that we didn’t have in the past—and that is now the bullying is occurring online so it is documented, and we can find the bullies and talk to them.

“Appropriate intervention, education, and mediation strategies are needed,” Thierer said. “We need to encourage good cybercitizenship and good online behavior.”

Thomas Cheplick ([email protected]) writes from Cambridge, Massachusetts.

For more information …

“The West Virginia Computer Crime and Abuse Act”: http://www.legis.state.wv.us/Bill_Status/bills_text.cfm?billdoc=sb740%20intr.htm&yr=2009&sesstype=RS&i=740