Criminalizing cyberbullying: An apolitical solution
Nikolas Cruz marched onto Stoneman Douglas High School equipped with an AR-15 and a black duffel bag stuffed with bullets. This shooting left seventeen dead and sparked a national debate about automatic weapons. While this national conversation is certainly necessary in the wake of this tragedy, unfortunately, political tensions may prevent a constructive solution. As politicians debate the merits of gun-control legislation, one area that is less polarizing and could prevent future massacres is cyberbullying legislation.
Responding to the Columbine shooting in 1999, Georgia legislators passed anti-bullying legislation. Now at least forty-six states have either educational or criminal statutes prohibiting bullying. These laws define cyberbullying as, “abuse, coercion, harassment, or threatening of another person through electronic media, such as computer websites, e-mail, and text messages.” Knowing that approximately 11.5% of students are bullied online or via text, this remains a prevalent and unresolved issue. While details of Cruz’s school life are not fully known, school reports have indicated that he was a victim of bullying. Cruz’s role both as the victim and the bully serves to highlight the importance of anti-bullying legislation.
As America learned about Cruz’s life, his digital footprint shocked many. He posted, “I whana shoot people with my AR-15” and “I wanna die Fighting killing s**t ton of people.” Additionally, he repeatedly referred to African-Americans and Muslims using slurs, and used his Instagram promote violence. Though his language was violent and divisive, it is constitutionally protected by the First Amendment, illustrating one of the biggest challenges for proponents of anti-cyberbullying legislation.
This balancing act between protecting speech and protecting children from bullying was highlighted in the landmark case State v. Bishop. In it, high school students repeatedly referred to a fellow student as a “homosexual” and suggested they “kick [victim’s] ass” on Facebook. One of the students was convicted under North Carolina’s cyberbullying law and successfully argued it violated his First Amendment rights. The Supreme Court of North Carolina was sympathetic to the state’s interest in preventing bullying but criticized of the breadth of speech that it covered. This is because the First Amendment requires statutes to be narrowly tailored to prevent a limitation on speech.
Since the First Amendment is often at odds with cyberbullying laws, legislating it is potentially problematic. Many prosecutors have therefore come up with creative strategies to punish and deter electronic intimidation. For example, prosecutors nationwide have turned to stalking and harassment statutes. Most states mirror Californian law, which require both harassment and a credible threat for a conviction. Since these are inchoate crimes, they require proof of intentionally, purposefulness, or willfullness to be proven beyond a reasonable doubt. Juries are allowed to infer this intent through the defendant’s “course of conduct.” This inference is useful against bullies who repeatedly communicate directly with their victim. In these cases, a prosecutor may be able to convict a bully if the contact with the victim was severe and continuous.
Harassment statutes are less helpful when the bully makes general posts to the public at large, like Cruz did, because the intent element of the crime becomes harder to prove. One possible solution is to draft statutes that presume repeated and offensive remarks of a violent nature are made with the intent of inflicting harm.
Another alternative is to prosecute using threat statutes, which do not require repeated behavior like harassment statutes. These laws are designed to encourage law enforcement intervention. The standard for emotional distress is, therefore, much lower than in harassment cases. The Model Penal Code recommends criminalizing threats “to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building... or otherwise to cause serious public inconvenience.” This approach has been adopted by a number of states which have criminalized “terroristic threats.” Pennsylvania’s statute has been updated to include “electronic means” as a type of threat. Other states, like Kentucky, have attempted to encourage school safety by making it a crime to threaten teachers or students.
Under this definition, Cruz’s posts in which he described aspirations of becoming a “professional school shooter” could be classified as a threat. The primary issue with convicting students like Cruz under threat statutes is these comments are usually generalized rather than directed to a specific victim. This is further complicated by United States v. Alkhabaz where the Sixth Circuit held that even if a reasonable person concludes that the communication was made with the intent to inflict bodily harm, it must also be intended to intimidate the victim. Under this standard, Cruz’s posts would not likely be considered threats. Further, Cruz’s posts would only be criminalized if they had been sent to another student directly, constituting a threat. There is still hope for the 21% of students bullied at school, because in these circumstances the threat is less generalized meeting the Alkhabaz requirement.
Another tool which could aid prosecutors in combatting individuals who bully minors online is Grace’s Law. This month, the West Virginia House Judiciary Committee approved “Grace’s Law”, which further criminalizes cyberbullying. This legislation targets individuals who make fake accounts that cause minors for fear for their safety and individuals who sexually harass minors online. If convicted a defendant could face a year in jail and/or a $500 fine. This legislation expands cyberbullying legislation by listing what constitutes harassment or a threat, without infringing on constitutionally protected speech.
While, thankfully, most cyberbullying does not lead to massacres such as the one in Florida, it is often a first step. It is therefore essential for prosecutors to have an avenue to deter this behavior before it gains momentum. As America continues to wrestle with this painful discussion of gun ownership, it is important to remember there are less contentious ways to curb threatening behaviors. As the rhetoric of gun control intensifies, legislators should remember there are other routes which can help prevent future crises. By examining cyberbullying legislation, a positive change can be made without all of the political hurdles facing gun-control legislation. While this is not a panacea and should be considered in conjunction with other legislation, it is a realistic option for legislators. In the meantime, prosecutors should look to existing laws to combat cyberbullying. Hopefully by finding this common ground, this distaste for intimidation, we can move forward as a nation.