Some folks say that Congress will do anything that resonates with the public, and that Congress doesn’t care about the Constitution — especially if the Constitution gets in the way of “protecting the children.” If you think that, you should read this report about Wednesday’s House Judiciary subcommittee hearing on the proposed Megan Meier Cyberbullying Prevention Act that Eugene blogged about a few months ago. A taste:
Proposed legislation demanding up to two years in prison for electronic speech meant to “coerce, intimidate, harass or cause substantial emotional distress to a person” was met with little enthusiasm by a House subcommittee on Wednesday.
Rep. Linda Sanchez (D-California) lobbied fellow lawmakers of a House Judiciary subcommittee to back her proposed legislation dubbed the “Megan Meier Cyberbullying Prevention Act.” In its first congressional hearing, Sanchez said the proposal was designed to target the cyberbullying that led to the 2006 suicide of the 13-year-old Meier of Missouri.
“Bullying has gone electronic,” Sanchez testified before the Subcommitttee on Crime, Terrorism and Homeland Security. “This literally means kids can be bullies at any hour of the day or the night, or even in the victims’ own home.”
From the outset of the 90-minute hearing, however, committee members from the left and the right said they thought the measure was an unconstitutional breach of free speech. “We need to be extremely careful before heading down this path,” Bobby Scott, a Democrat from Virginia and the committee’s chairman, said during the hearing’s opening moment.
Rep. Louie Gohmert (R-Texas) said the legislation “appears to be another chapter of over-criminalization.” He quipped, however, that the law could target the “mean-spirited liberals” in the blogosphere that are attacking himself and his family regularly.
About 30 minutes later, Gohmert said that not all prosecutors would exercise good judgment, that they might “harass the harasser.”
Good for them.
Categories: Criminal Law, Proposed Legislation
Tim says:
Fortunately the First Amendment doctrine is STRONG on this issue. I don’t worry too much.
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October 2, 2009, 12:46 amGuy says:
Two years in prison for being a bully? Enforcement will probably be aimed at minors, seems reminiscent of “zero tolerance” policies. Why don’t we dodge the First Amendment question by just cutting to the chase and putting all the children in the country in jail until they turn 18? For their own protection, of course.
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October 2, 2009, 1:01 amDon Meaker says:
So does that mean I can sue Jimmy Carter for calling me a racist?
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October 2, 2009, 1:20 ammls says:
Just another example of Congress favoring a powerful special interest, Big Bully, over the “little guy.”
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October 2, 2009, 3:58 amDoug says:
What!!! Some members of Congress acting in a rational manner! What is the world coming to.
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October 2, 2009, 5:45 amtexasfox82 says:
Haha, yes! I’m waiting for my chance to tell someone a few choice things i learned in russian from some drinkie-girls i knew in korea, then wait and have them find out what it means and come back to me and try to do something. That’ll be a real tosser.
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October 2, 2009, 6:15 amrick.felt says:
So are we opposed to all laws against intimidation and harassment on first amendment grounds, or are we opposed to this because it exceeds Congress’ authority? I can get behind the latter, but I’m not about to read a right to harass into the first amendment.
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October 2, 2009, 6:15 am11-B/20.B4 says:
Unless the “bullying” contains direct, explicit threats of physical violence or other criminal activity, no, I don’t think it’s any of the government’s business. Rude and antisocial behavior is not necessarily a crime. Let’s all repeat that together. This is why we have societal conventions, it’s a nice way of ostracizing those who violate norms without having to resort to even more legislation.
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October 2, 2009, 6:37 amtroll_dc2 says:
Can the sort of conduct sought to be targeted by the bill (as well as by the criminal prosecution in the Lori Drew case) be addressed by a tort action, or would that also be barred by the First Amendment?
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October 2, 2009, 6:59 amJ. Aldridge says:
What is more disturbing is the Supreme Court would probably find the Megan Meier Cyberbullying Prevention Act somehow constitutional.
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October 2, 2009, 7:47 amrick.felt says:
This is Lori Drew mission creep.
The law under which Drew was prosecuted was a bad one because it criminalized the breach of a private contract, i.e., violation of private terms of service. I don’t believe it follows from that, however, that no criminal laws could cover Drew’s acts.
Drew’s trial wasn’t a first-amendment case. The facts that there were no existing statutes that covered her acts and that what she did involved speaking does not imply that the reason that there was no law was because it would be repugnant to the first amendment. Prof. Kerr has a duty to his client, but the idea that criminal statutes against verbal harassment are always unconstitutional is absurd.
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October 2, 2009, 7:51 amGabriel McCall says:
The Constitution does not claim the right to authorize any interactions between private individuals; it is solely and entirely devoted to defining and limiting the powers of government. Just because Congress shall pass no law against X does not in any way mean that we should personally feel morally justified in performing every possible iteration of X.
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October 2, 2009, 7:52 amcboldt says:
– Can the sort of conduct sought to be targeted by the bill (as well as by the criminal prosecution in the Lori Drew case) be addressed by a tort action, or would that also be barred by the First Amendment? –
I think intentional infliction of emotional distress might lie, and that operates without regard to the 1st amendment.
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October 2, 2009, 7:54 amrick.felt says:
Unless the “bullying” contains direct, explicit threats of physical violence or other criminal activity, no, I don’t think it’s any of the government’s business.
No “direct, explict threats of... criminal activity.” Tony and Vito are exercising their first amendment rights. None of the government’s business.
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October 2, 2009, 7:55 amdisintelligentsia says:
While I applaud the fact that Congress is showing one of those rare moments of good sense, I don’t know that a law that outlawed speech meant to “coerce, intimidate, harass or cause substantial emotional distress” would be shot down on first amendment grounds. After all judges can issue restraining orders that forbid exactly that kind of behavior and “no negative contact” orders in “domestic violence” and civil harassment cases and these have withstood first amendment attacks. Granted, in DV and civil harassment cases one would suspect that at least someone is making a particularized finding and theoretically the fear of a restraining order does not rise to the point of creating a prior restraint that chills speech, but the issues are similar enough that I have no confidence that the SCOTUS would strike down a cyber-bullying law.
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October 2, 2009, 7:58 amrick.felt says:
Gabe:
What? How is that remotely responsive to what I wrote?
I asked whether this proposed law was objectionable because:
(a) criminalizing certain verbal acts was contrary to the first amendment; OR
(b) Criminalizing certain verbal acts is not a power given to Congress.
I’m open to the idea that Congress doesn’t have the authority to regulate what a woman named Lori says to a girl named Megan. I’m less open to the idea that all harassment laws are unconstitutional on first amendment grounds.
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October 2, 2009, 8:01 amEoin Suibhne says:
While the members seemed skeptical of Rep. Sanchez’s bill, Robert O’Neil of UVA sparked the interest of Chairman Scott by stating that HR 1966 was “on the right track.” O’Neil suggested further that the bill might be reconciled with the First Amendment through an exception for intentional infliction of emotional distress.
Also, Chairman Scott’s opening statement recommended opening Section 230 of the CDA. John Palfrey of Harvard concurred with this recommendation.
Ranking Member Gohmert garnered some chuckles when he questioned the worth of the Wasserman Schultz bill, HR 3630. He questioned whether the government should spend “$120 million in Chinese money we’ll have to borrow” for a matter that should be handled by parents and teachers.
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October 2, 2009, 8:02 amkrs says:
Really? A broad criminal law might apply to more than just the bad people? And Congress gets this? Legislators... understanding how legislation works? Wonders never cease.
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October 2, 2009, 8:38 amSuperSkeptic says:
No “direct, explict threats of… criminal activity.” Tony and Vito are exercising their first amendment rights. None of the government’s business.
Rick, extortion is extortion; the words can be used to prove a larger extortion scheme. But the prosecution would be focused on that.
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October 2, 2009, 8:51 amalkali says:
Further to rick.felt’s comments, I have wondered why these kind of situations could not simply be prosecuted under Missouri state criminal statutes of general application, including:
1. involuntary manslaughter (defined under Missouri law as “recklessly causing the death of another person”),
2. child abuse (“knowingly inflicting cruel and inhuman punishment upon a child less than seventeen years old”),
3. harassment (“to engage in a course of conduct directed at a specific person that serves no legitimate purpose, that would cause a reasonable person to suffer substantial emotional distress, and that actually causes substantial emotional distress to that person”), or
4. stalking (intentional harassment).
A new federal criminal statute does not seem necessary when all of those statutes (and their counterparts in other states) are available.
(To be sure, I don’t claim that Ms. Drew is guilty of any of these crimes — I don’t know the particular facts of the situation. My point is that if the issue is whether Ms. Drew, by her conduct, recklessly caused the death of another person,” then the question is whether she is guilty of involuntary manslaughter — either she is or she isn’t, and no additional statutory apparatus seems necessary.)
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October 2, 2009, 8:54 amGabriel McCall says:
I don’t see the distinction you’re trying to draw. Criminalizing certain verbal acts is not a power given to Congress, as made explicit in the First Amendment. Unless you’re trying to make the Hamiltonian argument that the Bill of Rights is unnecessary because Article I Section 8 should suffice.
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October 2, 2009, 9:23 amCrunchy Frog says:
Because then that would leave overzealous Assistant US Attorneys in Los Angeles with nothing to do?
Can’t have that — they might turn their attention to enforcing the nation’s immigration statutes or something.
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October 2, 2009, 9:59 amShelbyC says:
How does one give a weggie over the internet? Does the victim have to have specialized hardware?
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October 2, 2009, 10:41 amrick.felt says:
I don’t think the first amendment was unnecessary. Congress could act within its Art 1 Sec 8 powers and still restrict speech. It’s easy to imagine that Congress would try to regulate, say, interstate commerce in altar wine used in Catholic churches but not in Protestant ones.
Maybe I can express what I was getting at with my distinction this way:
You can attack this law in at least two ways: first amendment, or enumerated powers. Best of luck before this Court with your commerce clause argument! If this law goes down, it’s going down on first amendment grounds. However, many “harassment” laws do not run afoul of the first amendment. I could see some being overbroad, but I would imagine that most states have some law making it a criminal act to use words to harass, and I don’t mean explicit verbal threats of violence.
So my point is that I agree with those who have commerce clause problems with this law, but I disagree with those who have first amendment problems with this law, and I’d like to hear those arguments.
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October 2, 2009, 12:02 pmShelbyC says:
Well, except that regulating speech, or regulating alter wine only for Catholics, is improper.
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October 3, 2009, 8:06 am“Cyberbullying Bill Gets Chilly Reception” says:
[...] “Megan Meier Cyberbullying Prevention Act.” [David Kravets, Wired.com “Threat Level” via Kerr, Volokh and [...]