Foundation for Individual Rights in Education
March 6, 2012
Well-intentioned? Probably. Unconstitutional? Definitely. Alabama’s House Bill 400 and its companion Senate Bill 356 seek to define “cyberbullying” to criminalize, amongst other things: (1) transmitting, posting, displaying or disseminating, through electronic communications “with the intent to harass, annoy, or alarm,” (2) any communication, image, or information, which is (3) based on the actual or perceived traits of the recipient, and (4) that as a result (a) “has a substantial and detrimental effect on that person’s physical or mental health,” (b) “has the effect of substantially interfering with that person’s academic performance, employment, or other community activities or responsibilities,” or (c) “has the effect of causing substantial embarrassment or humiliation within an academic or professional community.”
Did you catch all that? The fundamental problem with this legislation is not its goal of creating harassment-free professional and academic environments for all, but its expansive definition of harassment, which prohibits all sorts of protected speech. For example, if this bill becomes a law, it would be a Class A misdemeanor to send an email to classmates lampooning Canadians for their usage of the word “eh” or their inexplicable love of ice hockey, if that email has the effect of substantially embarrassing or humiliating a Canadian student in the eyes of his fellow university classmates, no matter how unreasonable it might be for that student to feel embarrassed. Under the law as currently proposed, it would also be illegal for a political gadfly to send an email exposing a congressman’s infidelity or sexual exploits. After all, exposing such things could cause substantial embarrassment or humiliation; just ask former Congressman Anthony Weiner, former Senator John Edwards, or current Senator David Vitter.
Also deeply troubling, these bills apparently have no jurisdictional limitation. They outlaw emails sent from anyone anywhere in the world to anyone anywhere in the world, with no requirement that the sender or recipients be in Alabama. Does Alabama intend to allow its prosecutors to pursue charges against senders in other states whose offending emails are sent to Alabamans?
Puzzling? Troubling? Unconstitutional? Check, check, and check. If you’re counting, that’s three strikes.
If the Alabama Legislature wants to tackle “cyberbullying,” it cannot do so by criminalizing protected speech. While truly harassing behavior in person or online is troubling, laws that curtail protected speech are not the remedy. To be constitutional, laws that seek to address harassment, in whatever its form, need to define harassment narrowly enough to avoid outlawing protected speech—even when the speech is rude or unpopular. I just pray that this blog post does not annoy the bills’ sponsors or cause them any emotional distress.