Cyberbulling, free speech. Yep, the Lori Drew case.

Slate’s Emily Bazelon has a piece today on the Lori Drew case. The terrible backstory: in 2006, Drew, her daughter, and her assistant, created a fake Myspace profile of a 16 year old boy and sent messages to a teen neighbor, Megan Meier. After exchanging flirtatious messages, the “16-year-old” then wrote, “The world would be a better place without you.” Megan Meiers committed suicide 20 minutes later.

The legal case, as many 1st Amendment lawyers have pounced on,was based on computer-fraud law, and misuse of Myspace, including:

…conspiring to violate the fine print in MySpace’s terms-of-service agreement, which prohibits the use of phony names and harassment of other MySpace members. …

“This was a very aggressive, if not misguided, theory,” said Matt Levine, a New York-based defense attorney and former federal prosecutor. “Unfortunately, there’s not a law that covers every bad thing in the world. It’s a bad idea to use laws that have very different purpose.”

In her at Slate piece, Emily Bazelon explains how cyberbullying laws threaten free speech.

Someone other than Drew apparently sent that last dreadful e-mail. Even if she had, it seems wrong to say she caused Megan’s death. … The formulation that makes sense to me is that Drew at least contributed to Megan’s suicide. … But the vacuum cleaner that would cleanse the Web of its pseudonymous nastiness would also suck up a lot of free speech. Freedom often doesn’t go with niceness.

… Would lawmakers really want to go after people, even potentially, for giving a fake name to register for a Web site, for example (dressed up as the bad act of giving “false and misleading information”)? … 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. …

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. …

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. …

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? … [W]ild and woolly though it may be, the Internet doesn’t really call for rethinking our affection for the First Amendment. Cyber-bullying is scary. For some kids, MySpace isn’t a safe place. But criminal convictions aren’t the best way to clean up the neighborhood.

Emily Bazelon and Ann Althouse discuss the Lori Drew case and the kids (following the Drew discussion, there’s a discussion about kids dressing up as Indians for Thanksgiving and the Pledge of Allegiance). To watch the dialogue, click here.


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