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?

 

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