Law 897: Cyber-Harassment
November 29, 2010 Class Assignment by Mary
Kate Sweeney
I.
Overview (all
links in this section are optional reading)
Seth Walsh, a 13-year-old California middle school
student, hanged himself on September 19th after being picked on for
years for being gay. Tyler Clementi, an 18-year-old freshman at Rutgers
University, jumped off the George Washington Bridge on September 22nd
after his roommate posted a live-streaming video of his sexual encounter with
another young man. Asher Brown, a 13-year-old Texas eighth grader, shot
himself in the head on September 23rd after two years of bullying
for being gay. 5 days, 3 suicides.
These
names are new additions to the growing list of young Americans who have
committed suicide after being harassed and bullied. Some of these names are recognizable, like Megan Meier and Phoebe Prince, but there are, sadly, many others.
Many people have attributed the seeming rash
of teen suicides to the birth of new mediums for bullying. Email, online social networking sites,
text messaging, YouTube videos, and websites allowing for anonymous posts have
transformed the traditional forms of bullying such as playground beatings and
getting slammed into lockers into a constant stream of torment.
II.
In General: Cyber-Harassment
a. What is cyber-harassment?
i. Electronic
or Internet harassment includes three different types of behavior: (1) cyber-stalking, (2) cyber-harassment,
and (3) cyber-bullying. An
overview of the differences between these three types may be found here.
ii. Cyber harassment
involves enhanced risks because it is more prevalent and more damaging than
harassment in the physical world.
For a discussion of cyber victimization and its risks please read
sections I-III of Criminal Liability for
Internet Culprits: The Need for
Updated State Laws Covering the Full Spectrum of Cyber Victimization by
Kate E. Schwartz. The article may
be found here.
Note that the author uses the term "cyber victimization" to refer to the
types of behavior discussed above.
b. Tyler
Clementi Case (optional)
i. As mentioned
above, Tyler Clementi, a freshman at Rutgers University, committed suicide on
September 22, 2010 after two classmates, his roommate, Dharun Ravi, and another
student, Molly Wei, posted a video of him and another male during a sexual
encounter. Ravi and Wei were later
arrested and charged with invasion of privacy. For more information about the incident, please read this article.
ii. Many have
called for Ravi and Wei to be punished for their actions relating to Clementi
but what is the proper punishment?
Please read this article for a
discussion.
iii. Both Ravi
and Wei have withdrawn from Rutgers University in the wake of the controversy
surrounding Clementi’s death. (Article
found here.)
iv. U.S. Senator
Frank
Lautenberg of New Jersey has proposed federal legislation to be known as the "Tyler
Clementi Higher Education Anti-Harassment Act." Find an overview of the bill here and the bill itself here.
III.
Cyber-Bullying
a. What is
cyber-bullying?
i. Cyber-bullying
is often characterized as behavior where a minor is tormented, threatened,
harassed, humiliated, embarrassed, or otherwise targeted by another
minor using cell phones, computers, and other electronic communication
devices. (See here.)
Usually when adults become involved it is called cyber-harassment or
cyber-stalking.
ii. To learn
more about the different types of activities that constitute cyber-bullying see
here.
b. Possible
Solutions
i. Legal: Cyber-bullying statutes
1. Federal
a. In response
to Megan Meier’s suicide and the dismissal of the criminal case against Lori
Drew, Congresswoman
Linda T. Sanchez introduced H.R. 6123 in May 2008. The bill, known as the Megan Meier
Cyberbullying Prevention Act, is still pending. Please review the bill.
2. State
a. For an
overview of the state statutes regarding bullying, cyber-bullying, and
cyber-harassment please see the review found here.
How does your home state address cyber-bullying? Which of the states that specifically
mention cyber-bullying in their statutes do you think has the best approach?
b. For a
discussion of the differences among state laws relating to cyber victimization
in general and recommendations for properly criminalizing cyber victimization, please
read sections IV-VII of the Swartz article found here.
Do you agree with her proposal?
c. In "Kiddie Crime"? The Utility of Criminal Law in Controlling Cyberbullying,
Susan Brenner and Megan Rehberg do not believe that it is appropriate to extend
criminal liability to cyber-bullying.
They believe that cyber-bullying should be addressed by schools rather
than by the criminal justice system.
Please skim the article, found here. (Another copy is here.) Do you agree with them schools are in the best position to handle
cyber-bullying? What if most of
the bullying is done outside of school using home computers?
d. Some contend
that bullying and cyber-bullying should not be a crime at all. Kids are mean. Kids have always been mean. Kids will always be mean. Deal with it. A recent blog post on Above the Law expressed this
opinion. (The following links are
optional)
i. Find the
original blog post by Elie Mystal here.
ii. Find the
post about the boycott of the site and ATL’s response here.
iii. Find the Fox
News interview with Mystal here.
3. Note that
many of these statutes impose a duty on schools to monitor and police
cyber-bullying. Is this duty
appropriate? Are schools properly
equipped to handle these situations?
Consider this article’s new take on
Phoebe Prince’s suicide.
(Optional: Review the
series of Slate articles that inspired this discussion here.)
ii. Non-legal
1. The FCC has
mandated that schools receiving funds from the E-Rate program must educate
students about cyber-bullying.
Learn more about this here.
2. The Obama
Administration initiated the Inter-Agency Task Force on Bullying in 2009. The Task Force held a National Bullying
Summit in August 2010 and launched the "Stop Bullying Now" Campaign and the national database of
effective anti-bullying programs.
As a member of the Task Force, the Department of Education also issued guidance to
educators on how to combat bullying.
3. The It
Gets Better Project is an online video channel founded in September 2010. Its goal is to prevent suicide among
LGBT youth by having gay adults post videos explaining that, though bullying
makes it seem like they can’t have a positive future, it does get better.
a. Optional: An
interesting blog post reviewing a
recent episode of Glee points out
that the It Gets Better Project may have its heart in the right place but will
likely have a minimal impact.
IV.
Assignment
For class please consider the following
hypothetical:
The state of Montana has recently seen an
increase in its number of teen suicides.
The citizens of the state are horrified by these statistics. They believe that bullying,
specifically cyber-bullying, is the cause of the rising rate of teen suicides
and wish to seek justice for the victims.
They are outraged to find that the state has no laws to address this
type of behavior. Jane Hutchins
ran for and won a state senate seat in the recent elections. Reacting to public outcry, Jane ran on
a platform promising to pass bullying and cyber-bullying laws. She hopes to have a bill to present
when she takes her seat in January.
As one of Jane’s aides, you have been tasked
to put together the bill relating to cyber-bullying. What is your legal solution to this problem?