Emily Bazelon writes a convincing piece that the guilty verdict against Lori Drew, the woman who created the MySpace profile that is alleged to have taunted a teenage girl to suicide:
The problems with the California case against Drew started with the poor fit between her wrongdoing and the law used to punish her. The federal Computer Fraud and Abuse Act makes it a crime to intentionally access "a computer without authorization." So what does that mean—is it a crime to hack past a password or a firewall? Or merely to violate a terms-of-service contract like the one MySpace users agree to?
There apparently is no law against what Ms. Drew did, though we may wish there to be one. The use of the above law may actually do more harm than good: It's one thing for MySpace to kick someone out for acting like a troll or even for the troll's target to sue her. It's another thing entirely to throw the weight of the government behind a criminal investigation and conviction for what usually just amounts to mischief in cyber-contracts.
So how do we address the subject? Should what Drew did be made a crime?
What about a law written expressly to address cyber-bullying? Such a statute could presumably direct prosecutors to go after only the worst of the Internet meanies. Or, then again, maybe not. A proposed bill before Congress is far broader. It targets anyone who uses "electronic means" to transmit "in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person." The penalty is a fine or imprisonment for up to two years.
Missouri, where Meier lived, has already passed a cyber-bullying law. The Missouri statute extends the state's bar on phone harassment to computers. The problem with the analogy is that the computer context is more dangerous to free speech: On the phone, you talk to one other person. On MySpace or any other Web site, you broadcast to as many people as read you.
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All of this takes us back to earlier battles over prosecuting hate speech. As Eugene Volokh points out on his ever-vigilant blog, the cyber-bullying bill before Congress is a classic example of a law that's unconstitutional because it's overly broad. The Supreme Court has held that the First Amendment protects "outrageous" speech—from civil as well as criminal liability—even if it "recklessly, knowingly, or purposefully causes 'severe emotional distress,' when it's about a public figure." Volokh adds, "Many, though not all, lower courts have held the same whenever the statement is on a matter of public concern, even about a private figure."
That doesn't mean that a cyber-bullying statute as applied to a Lori Drew-like horror show would be unconstitutional; "Josh's" trashing of Megan was hardly a matter of public concern. But even if a better drafter could come up with a narrower law, since when do we want the government to go after bullies when the only weapon they wield is words?
