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CYBERBULLYING AND OTHER ONLINE SAFETY 

ISSUES FOR CHILDREN 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

ON

H.R. 1966 and H.R. 3630 

SEPTEMBER 30, 2009 

Serial No. 111–76 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia, Chairman 

PEDRO PIERLUISI, Puerto Rico 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

ANTHONY D. WEINER, New York 

DEBBIE WASSERMAN SCHULTZ, Florida 

MIKE QUIGLEY, Illinois 

LOUIE GOHMERT, Texas 

TED POE, Texas 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TOM ROONEY, Florida 

BOBBY VASSAR, Chief Counsel 

CAROLINE LYNCH, Minority Counsel 

(III) 

C O N T E N T S 

SEPTEMBER 30, 2009 

Page 

THE BILLS 

H.R. 1966, the ‘‘Megan Meier Cyberbullying Prevention Act’’ ............................. 4 

H.R. 3630, the ‘‘Adolescent Web Awareness Requires Education (AWARE) 

Act’’ ........................................................................................................................ 8

OPENING STATEMENTS 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Chairman, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 1 

The Honorable Louie Gohmert, a Representative in Congress from the State 

of Texas, and Ranking Member, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 19 

WITNESSES 

The Honorable Linda T. Sa ́nchez, a Representative in Congress from the 

State of California 

Oral Testimony ..................................................................................................... 21 

Prepared Statement ............................................................................................. 24 

The Honorable Debbie Wasserman Schultz, a Representative in Congress 

from the State of Florida 

Oral Testimony ..................................................................................................... 33 

Prepared Statement ............................................................................................. 35 

Mr. Robert M. O’Neil, Law Professor Emeritus, University of Virginia, Charlottesville, VA 

Oral Testimony ..................................................................................................... 38 

Prepared Statement ............................................................................................. 41 

Ms. Judi Westberg Warren, President, Web Wise Kids, Santa Ana, CA 

Oral Testimony ..................................................................................................... 47 

Prepared Statement ............................................................................................. 49 

Mr. Harvey A. Silverglate, Attorney, Zilkind, Rodriguez, Lunt & Duncan, 

LLP, Cambridge, MA 

Oral Testimony ..................................................................................................... 56 

Prepared Statement ............................................................................................. 58 

Ms. Nancy Willard, M.S., J.D., Director, Center for Safe and Responsible 

Internet Use, Eugene, OR 

Oral Testimony ..................................................................................................... 102 

Prepared Statement ............................................................................................. 107 

Mr. John Palfrey, Law Professor, Harvard Law School, Cambridge, MA 

Oral Testimony ..................................................................................................... 126 

Prepared Statement ............................................................................................. 128 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 145 

(1) 

CYBERBULLYING AND OTHER ONLINE 

SAFETY ISSUES FOR CHILDREN 

WEDNESDAY, SEPTEMBER 30, 2009 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 3:34 p.m., in room 

2141, Rayburn House Office Building, the Honorable Robert C. 

‘‘Bobby’’ Scott (Chairman of the Subcommittee) presiding. 

Present: Representatives Scott, Wasserman Schultz, Gohmert, 

and Lungren. 

Staff Present: (Majority) Bobby Vassar, Subcommittee Chief 

Counsel; Karen Wilkinson, Federal Public Defender Office Detailee; 

Joe Graupensperger, Counsel; Veronica Eligan, Professional Staff 

Member; and (Minority) Caroline Lynch, Counsel. 

Mr. SCOTT. The Subcommittee will now come to order. 

I am pleased to welcome you today to the hearing before the Subcommittee on Crime, Terrorism, and Homeland Security on 

‘‘Cyberbullying and Other Online Safety Issues for Children.’’ 

The term ‘‘cyberbullying’’ has many different definitions and can 

cover many different types of speech. It can consist of rumors or 

lies, a publication of something meant to be private, or the impersonation of another person. Or it can encompass more problematic 

speech, involving threats, stalking, or predatory behavior. 

The cyberbully can reveal his or her identity or remain anonymous. While perpetrators may appear anonymous, however, reports 

indicate that targets often know who their perpetrators are. And 

the perpetrators are often friends or, more likely, former friends. 

The term ‘‘cyberbullying’’ commonly is used to refer to communications among children and youth. Adults may be involved in 

cyberbullying, either as bullies or targets, but studies indicate that 

the majority of those involved in cyberbullying are children and 

youth. 

Bullying and harassment can occur both online and offline. On 

the playground, bullying may take the form of pushing, hitting, 

threatening, or other assaultive conduct. On the Internet or on cell 

phones, bullying comes in the form of speech. Targets of 

cyberbullying may also be targets of offline bullying. One report 

found that over 42 percent of youth who reported being 

cyberbullied also reported being bullied at school. 

2 

Because cyberbullying has no clear definition, it is difficult to 

measure. Lack of an agreed-upon definition also makes it difficult 

to compare studies or determine trends. According to the Internet 

Safety Technical Task Force, directed by the Berkman Center for 

Internet and Society at Harvard University, bullying and harassment by peers are most frequently threats that minors face both 

online and offline. 

All seem to agree that cyberbullying and harassment happens to 

a significant minority of youth. Bullying appears to be more common than harassment. Sibling-based harassment also occurs, with 

one study reporting that 30 percent of 7th- through 9th-graders reported online victimization from a non-parent family member. 

Some children and youth are involved in cyberbullying as both 

victims and bullies. A recent study found that 27 percent of girls 

who were bullied online retaliated back with their own 

cyberbullying. 

Much cyberbullying conduct is typical adolescent behavior, but 

when it occurs online it is taken to a new level. Insults, harassing, 

and bullying statements are broadcast to thousands of others in 

seconds. Once it is out, statements cannot be taken back. 

Cyberbullying can be devastating to youth and, for some teenagers, 

can result in tragic endings, such as Megan Meier’s suicide. 

Unchecked, the problem of cyberbullying likely will only grow 

worse. We have two bills before us today that take two different 

approaches to the problem. 

H.R. 1966, the ‘‘Megan Meier Cyberbullying Prevention Act,’’ addresses the problem by creating a new Federal crime prohibiting 

communications made with the intent to coerce, intimidate, harass, 

or cause substantial emotional distress that use electronic means 

to support severe, repeated, and hostile behavior. The new crime 

provides for a felony penalty. 

We want to do all we can do to protect our children and youth, 

but we don’t want the unintended consequences of converting many 

of our youth into criminals, particularly felons. The label ‘‘felon’’ 

lasts a lifetime, and we need to be extremely careful before proceeding down this path. 

Finally, as with any attempt to regulate speech, we must be careful not to violate the constitutional right to free speech and due 

process. So I look forward to hearing what our experts have to say 

about these concerns. 

H.R. 3630, the ‘‘Adolescent Web Awareness Requires Education 

Act,’’ the ‘‘AWARE Act,’’ seeks to address the problem of online 

safety issues for youth, including cyberbullying, through education 

and prevention. It creates a grant program to be implemented by 

the Attorney General in accordance with best practices and authorizes $125 million for grants to carry out Internet crime awareness 

and cyber-crime prevention programs. 

While we don’t have any bills before us that focus on how technology companies can help with this problem, I am also interested 

from hearing from our witnesses on this issue. We may need to revisit the immunity portion of section 230 of the ‘‘Communications 

Decency Act’’ to determine whether the law went too far in providing immunity to service providers who intentionally allow or 

3 

even encourage cyberbullying and harassment to flourish on their 

sites. 

This is a serious problem, and there is no easy solution. And I 

appreciate the efforts taken by both the gentlelady from California, 

Ms. Sa ́nchez, and the gentlelady from Florida, Ms. Wasserman 

Schultz, to address the problem. And I look forward to hearing 

from our experts on how we can and should work together to address the problem. 

[The bills, H.R. 1966 and H.R. 3630 follow]: 

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Mr. SCOTT. I now recognize the Ranking Member of the Subcommittee, the gentleman from Texas, Judge Gohmert. 

Mr. GOHMERT. Thank you, Chairman Scott. 

As long as there have been children in this world, there have 

been bigger, meaner children who pick on them. As a small child, 

often the smallest in my class, youngest in my class in elementary 

school and junior high, I certainly know about that and about being 

picked on by bullies. 

But when I was in school, the bully could be found in the lunchroom or the school yard, teasing kids, pushing others, or even taking things from them because they were big enough to do so. Times 

have changed. Now we have chat rooms, social networking sites, 

and use terms like ‘‘cyberbullying’’ and ‘‘cyberstalking.’’ It appears 

the school bully has found a new playground. 

According to the National Crime Prevention Council, 

cyberbullying affects nearly half of all American teenagers. 

Cyberbullies send mean text messages, broadcast insulting or degrading comments on the Internet, and even post pictures of the 

victim for others to see. 

My own family has been bullied on the Internet by political 

bloggers trying to hurt me and my family because of my political 

positions. Liberal blogs have called me all kinds of names and 

made efforts to harass me. Some letters to the editor intended to 

intimidate and harass have been sent by e-mail. So perhaps this 

would be a way of stopping that. 

But 13-year-old Megan Meier, we know her tragic case in which 

she committed suicide after being told by a boy she had been talking to on MySpace that the world would be a better place without 

her. As we know, the boy, ‘‘Josh,’’ was really the mother of one of 

Megan’s classmates seeking retribution against Megan for allegedly 

spreading rumors about the woman’s daughter. 

Ryan Patrick Halligan, also 13, committed suicide after receiving 

taunting and insulting messages from his middle school classmates 

questioning his sexuality. 

These tragedies are symptomatic of a much larger problem. Why 

do our teenagers and even their parents think this is acceptable behavior? What are we teaching our young people in our homes and 

schools about treating others with respect, as you would want to 

be treated? 

Today we will be examining two bills that seek to address this 

new issue of cyber harassment. In the first, H.R. 1966, it proposes 

a new Federal criminal offense for cyberbullying. Under this law, 

a person could face up to 2 years in Federal prison for sending a 

communication intended to coerce, intimidate, harass, or cause substantial emotional distress to another person. 

This proposal raises several significant concerns, not the least of 

which is its encroachment on protected speech. The Supreme Court 

has identified those categories of speech that fall outside the protections of the first amendment, including fighting words, obscenity, or what the court characterizes as, quote, ‘‘true threats,’’ unquote. 

True threats of bodily harm are not protected. They are already 

crimes. But statements intended to coerce, intimidate, harass, or 

20 

cause substantial emotional distress, however unsavory, likely do 

not fall within the category of true threats. 

Moreover, are Federal criminal penalties warranted for 

cyberbullying? Criminal law is or should be the purview of the 

States because the Federal Government lacks a general police 

power. As the Supreme Court noted back in 1903 in Champion v. 

Ames, ‘‘To hold that Congress has general police power would be 

to hold that it may accomplish objects not entrusted to the general 

government and to defeat the operation of the 10th amendment.’’ 

And, according to the Congressional Research Service, 26 States 

have already enacted cyberbullying statutes, the majority of which 

carry misdemeanor, not felony, penalties. 

Unlike cyberstalking crimes, which typically involve a credible 

threat of harm to the victim, cyberbullying does not. Cyberbullying 

is characterized as intending embarrassment, annoyance, or humiliation to the victim. This conduct is deplorable, but the question is 

whether or not it is criminal. 

Most cyberbullies are teenagers or middle-school-age children. 

The legislation proposes sending these young people to Federal 

prison for embarrassing or humiliating a classmate. In fact, underage cyberbullies tried under this statute would most likely be adjudicated as juveniles and not tried as adults. And since there is no 

juvenile detention facility in the Federal system, these juveniles 

would be housed in State or private detention facilities, if at all. 

The second bill before us today, H.R. 3630, creates a new grant 

program within the Justice Department to fund Internet crime 

awareness and cybercrime prevention programs. But I have to 

question whether a new grant program is what we really need. A 

number of organizations with expertise in this area already operate 

Web sites to combat cyberbullying. The tips and tools offered by 

these sites are free to parents, teachers, and teens. 

H.R. 3630 requires the Justice Department to first undertake a 

study on the nature, prevalence, and quality of Internet crime 

awareness and cybercrime prevention programs. Then the Department must consult with education groups, Internet crime awareness, and cybercrime prevention groups and prepare detailed guidance for the grant program. This seems like a burdensome task, 

when we already have in place guidance from organizations like 

the National Crime Prevention Council and others. 

The question is whether we need to spend another $125 million 

of Chinese money that we will have to borrow in order to insert the 

Federal bureaucracy into a problem whose true resolution begins at 

home. Congress should not try to replace the parent or the teacher. 

We are currently involved in a truly bipartisan effort that includes efforts by the ACLU, with the Heritage Foundation and 

Chairman Scott and I, attempting to begin dismantling the vast 

overcriminalization under Federal law of between 4,000 and 5,000 

Federal crimes. 

Consider this: The playground still has bullies. When a bully 

beats up a smaller student and the smaller student goes home, gets 

on the Internet and says the playground bully is mean, ugly, and 

stupid, it is the smaller student victim that has now probably committed a Federal felony under this proposed law. 

21 

*Due to unforeseen events prior to the hearing, Mr. Culberson did not submit a statement 

to the Subcommittee. 

In our desire to address the problems of the day, Congress all too 

often legislates without first getting to the bottom about any unintended consequences and potential damages to the Constitution. 

What happened to Megan Meier and Ryan Halligan is tragic, is 

devastating. But Federal legislation does not seem to be the answer. Responsible parenting would be a good answer. Accountability for our actions is the answer. Arming young people with 

confidence and sense of self-worth to ignore the school Internet 

bully may be the answer. 

Although it is tempting because the proposal before us would 

allow me to pursue and seek indictment and arrest for mean-spirited liberals who have been exceedingly mean to me and my family, 

it appears to be another chapter in overcriminalization. 

I look forward to the discussion on these issues, and yield back 

the balance of my time. 

Mr. SCOTT. Thank you. 

We have two distinguished panels of witnesses here to help us 

consider the issues today. Our first panel consists of Members of 

Congress. 

The first panelist is the gentlelady from the 39th District of California, Representative Linda Sa ́nchez. She is in her fourth term 

and is a Member of the Judiciary Committee and the Ways and 

Means Committee. She is a primary author of H.R. 1966, the 

‘‘Megan Meier Cyberbullying Prevention Act.’’ 

Our next panelist is the gentlelady from the 20th District of Florida, Representative Debbie Wasserman Schultz. She is in her third 

term and is a Member of the Judiciary Committee and the Appropriations Committee, where she serves as Chair of the Legislative 

Branch Subcommittee of the Appropriations Committee. She is the 

lead sponsor of H.R. 3630, the ‘‘AWARE Act.’’ 

And our final panelist, we expected the gentleman from the Seventh District of Texas, Representative John Culberson, but he was 

unavoidably detained, and we will have his statement entered into 

the record.* 

Each witness’ written statement will be entered in the record in 

its entirety, so I ask our witnesses to summarize your testimony 

in 5 minutes or less. 

And we will begin with the gentlelady from California. 

TESTIMONY OF THE HONORABLE LINDA T. SA ́ NCHEZ, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Ms. SA ́ NCHEZ. Thank you, Mr. Chairman and Ranking Member 

Gohmert, for allowing me the opportunity to testify today about 

this piece of legislation. I am pleased to be here talking about the 

critical issue of child online safety because it is a relatively new 

form for Congress to be grappling with. 

When I was first elected to Congress, I held a series of meetings 

with local school superintendents and law enforcement leaders to 

learn more about the challenges that they face in keeping kids in 

school and on the right track to becoming productive citizens. And, 

22 

unfortunately, I heard a recurring theme during this series of 

meetings, and that is that bullying isn’t a harmless prank or some 

kind of right of passage; it is dangerous, both physically and mentally, for students. 

Bullying leads to things like poor school performance, absences 

from school, or even dropping out of school altogether. The prospect 

of assault and harassment can lead a child to join a gang for protection. Not only can bullying cause physical injuries in the form 

of wounds, bruises, and broken bones, but it can also lead to depression and even suicide. 

That is why I have been working to change Federal law so that 

schools can use Federal funds to address and prevent bullying and 

harassment. But over the last several years, I have learned that 

that approach isn’t going to be enough, because bullying has gone 

electronic. It occurs in text messages and G-chat, on Facebook and 

MySpace, on cell phones and on the Internet. This literally means 

that kids can be bullied any hour of the day and night and even 

in their own homes, which is a marked contrast to the bullies of 

yesterday that could only bully on the playground. 

Today’s kids are so wired into their electronic social networks 

that they type more messages than they speak each day. Their virtual world is more real to them than the so-called ‘‘real world’’ is. 

For those of us over 30, this can be difficult to comprehend, so I 

want to give you an example to illustrate the problem. 

Imagine, if you would, in our day when we went to school, a student brought out a jumbo-size TV into the school quad and played 

for the entire student body a videotape in which he threatened and 

harassed a second student. By the end of the day, everyone—and 

I mean everyone—would have seen or heard about it. Well, that is 

exactly what cyberbullying is. 

Because of the anonymity and deception in the Internet, this 

form of bullying is particularly dangerous. If Bobby posts a video— 

and I don’t mean the Chairman—on his Facebook page that 

harasses and threatens to rape and kill Ashley, that video isn’t private. It is not buried on Bobby’s profile page somewhere. It is public. It appears when any of Bobby’s Facebook friends log in, right 

up there in front of their homepage so they can’t miss it. And this 

story isn’t just hypothetical. It happened to a brave young woman 

named Hail Ketchum-Wiggins, who lives in southern California 

near my congressional district. 

Similar bullying incidents are happening every day to young people across our Nation. Cyberbullying is always mean, ill-mannered, 

and cruel, but some cyberbullying is so harmful that it rises to the 

level of criminal behavior. 

My bill, the ‘‘Megan Meier Cyberbullying Prevention Act,’’ is 

named to honor a young woman who was a victim of such criminal 

behavior. Three years ago, 13-year-old Megan Meier of Missouri 

hanged herself after being tormented and harassed by her 15-yearold MySpace friend ‘‘Josh.’’ Josh told her, among other things, ‘‘The 

world would be better off without you.’’ 

Eventually, Megan’s family learned that ‘‘Josh’’ was really a creation of Lori Drew, the parent of one of her classmates. However, 

local prosecutors in Missouri couldn’t bring charges against Lori 

Drew because, at the time, Missouri had no law to punish that 

23 

kind of cruelty. A Federal prosecutor in a similar bind got creative 

and charged Drew with computer fraud. And even though a jury 

convicted her, a judge through out the conviction. The result is that 

Drew, an adult and one who should have been setting an example 

of good behavior, will never be punished for her outrageous behavior toward her 13-year-old victim, Megan. 

These are just a few brief examples of why Congress needs to address new crimes like cyberbullying. Words that didn’t even exist 

a couple years ago, including ‘‘sexting’’ and ‘‘textual harassment,’’ 

describe the new ways that people use technology to hurt, harass, 

and humiliate others. When these behaviors become serious, repeated, and hostile, we can no longer ignore them and turn a blind 

aye. 

While Missouri has since enacted a cyberbullying statute, the 

children of other States are waiting for Congress to act. That is 

why I am grateful that the Committee is considering the ‘‘Megan 

Meier Cyberbullying Prevention Act.’’ 

Before I conclude, I do want to acknowledge how difficult it is to 

craft a prohibition on cyberbullying that is consistent with the Constitution. But I believe that, working together for the sake of our 

children, we can and must do so. 

The Supreme Court has already recognized that some regulation 

of speech is consistent with the first amendment. For example, the 

Court has approved restrictions on true threats, obscenities, and 

some commercial speech. But it has been more hostile to attempts 

to limit political speech. 

I don’t intend anything in the ‘‘Megan Meier Cyberbullying Prevention Act’’ to override Supreme Court jurisprudence. Instead, I 

want the law to be able to distinguish between an annoying chain 

mail, a righteously angry political blog post, or a miffed text to an 

ex-boyfriend, all of which should remain legal. But serious, repeated, and hostile communications made with the intent to harm 

are different. When the latter rises to a criminal level, as it did in 

the case of Lori Drew, prosecutors should have a tool at their disposal to allow them to punish the perpetrator. 

I believe that we can protect our right to free speech and protect 

victims of cyberbullying at the same time. And I look forward to 

working with my colleagues on both sides of the aisle to do so. I 

thank you for the opportunity to testify today and hope that you 

will join me in supporting that legislation. 

[The prepared statement of Ms. Sa ́nchez follows:] 

24 

PREPARED STATEMENT OF THE HONORABLE LINDA T. SA ́ NCHEZ, 

A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA


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Mr. SCOTT. Thank you. 

Ms. Wasserman Schultz? 


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TESTIMONY OF THE HONORABLE DEBBIE WASSERMAN 

SCHULTZ, A REPRESENTATIVE IN CONGRESS FROM THE 

STATE OF FLORIDA 

Ms. WASSERMAN SCHULTZ. Thank you, Chairman Scott and 

Ranking Member Gohmert and distinguished Members of the Committee, for allowing me to testify today beside my friend and fellow 

Committee colleague, Representative Linda Sa ́nchez. And I want to 

acknowledge my colleague, Representative John Culberson, who 

has taken ill and was not able to join us today. 

It is always an honor to appear before this Subcommittee, and 

I am pleased that we continue to make protecting children online 

a high priority. 

You know, Mr. Chairman, as proud as I am to represent south 

Florida in the House of Representatives, the job closest to my heart 

is being a mother to my 10-year-old twins and my 6-year-old 

daughter. And, as one of only a handful of mothers with young children in Congress—and Representative Sa ́nchez has recently joined 

our ranks, and we welcome her and congratulate her on that—I 

can assure you that we have no higher priority than keeping our 

children safe from harm. 

Now, for me, I approach today’s topic as a Web-savvy mom with 

Web-savvy kids. In fact, as of yesterday, literally, my 6-year-old 

daughter now has an e-mail address which she uses on her iPod 

Touch—with strong parental control software fully engaged, I 

might add. Clearly, parents and teachers already know that our 

children are growing up in a completely different world than we 

did, as Representative Sa ́nchez acknowledged. 

The Internet is a wonderful tool, but it has also become a pathway for risky behavior. The same Internet that helps our children 

create, study, and explore the world also enables minors to post 

nude photos online or text them to friends. The same Internet that 

allows children to organize clubs and volunteer for after-school activities also provides a way for children to harass their fellow students relentlessly, anonymously, publicly, and after the school day 

has long ended. 

As legislators, we have to get real. We must accept that our kids 

spend more time online than in front of the television. We have to 

own up to the fact that 89 percent of teenagers have profiles on social networking sites like MySpace and Facebook. We must understand that nearly four in 10 kids have used the Internet to make 

fun of or post lies about their fellow students. We must understand 

that we live in an era when four out of five teenagers have cell 

phones, most of which have cameras. And we must know that more 

than one in five teenagers admit to sexting nude photos of themselves to peers. 

These behaviors, often done on impulse or in boredom, have devastating real-life consequences. This May, I had the honor of meeting Cynthia Logan, a young mother from Ohio. She told me her 

story, and it truly broke my heart. 

Her daughter, Jesse, was only 18 years old when she sent nude 

photos of herself to her boyfriend. After the young couple broke up, 

the ex-boyfriend sent them to other high school girls all over the 

school. They called Jesse names I can’t repeat in this hearing. They 

passed around her pictures as casually as they would notes in a 

34 

classroom. And they made Jesse’s life a living hell. What began as 

a private communication turned into a public humiliation. Jesse became miserable and depressed. She eventually took her own life. 

Sadly, her case is not unique. Megan Meier, the young teen from 

Missouri that is the namesake of Congresswoman Sa ́nchez’s legislation, also committed suicide after being bullied online. It is not 

surprising that researchers at the Yale School of Medicine have 

found significant links between bullying and suicide. 

There are other dire consequences to these behaviors. An 18- 

year-old boy in my own home State of Florida was convicted on 

child pornography charges for sexted photos. He must now register 

as a sex offender for the rest of his life. 

So what do we do about it? There is no one answer or one silver 

bullet, but we can either continue to shut our eyes to the reality 

or we can tackle this problem head-on. 

I believe that we must usher in a new era of Internet safety education and cybercrime awareness. We must teach children how to 

be good cyber citizens. Unfortunately, most parents and most 

teachers don’t feel comfortable teaching kids how to be safe online. 

This means most children receive no training whatsoever in the 

safe, smart, and responsible use of the Internet. I, myself, have 

held three Internet safety town halls in my district. But as individuals and parents, we can’t do this alone. We need a consistent and 

national approach. 

Last week, with Congressman Culberson, I was proud to introduce H.R. 3630, the ‘‘Adolescent Web Awareness Requires Education Act,’’ or the ‘‘AWARE Act.’’ Our bill will establish a competitive grant program so that nonprofit Internet safety organizations 

can work together with schools and communities to educate students, teachers, and parents about these online dangers. Our bill authorizes up to $125 million over 5 years to establish 

age-appropriate, research-based programs that will encourage the 

safe, smart, and responsible use of the Internet and teach 

cybercrime awareness and digital literacy in the new media to our 

children. 

Education is important because it helps teach both parents and 

children how to act in all kinds of real-life situations. Education is 

vital because it can reinforce new norms between students. Education gives children lessons, teaches skills, and builds strength 

that can last a lifetime. 

We can teach children to treat their fellow students the same 

way online that they would in person. We can teach them not to 

bully or harass their peers and how to report dangerous our threatening activity when they see it. We can teach them not to post inappropriate material about themselves or others. We can teach 

them about privacy settings and about the risks of talking to 

strangers or posting personal information online. We can teach 

them that what they put online stays online. And we can teach 

them that the minute they hit that send button, they not only lose 

control over where their photos go next, they can also lose control 

of their future. 

We can and we must teach children how to be safe on the Web. 

Jesse Logan’s death was a tragedy, but it also is a powerful reminder about the lives that we can save. Knowledge truly is power, 

35 

and with the ‘‘AWARE Act,’’ it is my hope that we make knowledge 

our children’s first line of defense. 

Thank you. 

[The prepared statement of Ms. Wasserman Schultz follows:] 

PREPARED STATEMENT OF THE HONORABLE DEBBIE WASSERMAN SCHULTZ, 

A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA


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Mr. SCOTT. Thank you very much. 

Do you have questions for the witnesses? 

Mr. GOHMERT. No. 

Mr. SCOTT. We want to thank you for your testimony, and we are 

going to go on with the other witnesses. Thank you very much. 

If the other witnesses will come forward. 


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Our second panel of witnesses consists of five distinguished witnesses. 

Our first panelist will be professor Robert O’Neil. In 1990, he 

founded the Thomas Jefferson Center for the Protection of Free Expression and was director until 2007. Though officially a professor 

emeritus from the University of Virginia, he continues to teach a 

first amendment clinic. He is the author of several books, including 

‘‘Free Speech in the College Community,’’ ‘‘The First Amendment 

and Civil Liability,’’ and ‘‘Academic Freedom in the Wired World.’’ 

Our next panelist is Judi Westberg Warren. Since 2004, she has 

served as president of Web Wise Kids, a national nonprofit organization that implements educational programs to help our youth 

stay online safely. She serves on numerous committees, including 

the Congressional Internet Caucus Advisory Committee and the 

Internet Safety Advisory Board for the Attorney General of Virginia. 

Our next witness is Harvey Silverglate. He is the counsel to the 

Boston law firm of Zalkind, Rodriguez, Lunt & Duncan, LLP, specializing in criminal defense, civil liberties and academic freedom, 

and student rights law. He currently serves as an adjunct professor 

with the Cato Institute and is speaking on its behalf today. 

Our next panelist is Nancy Willard. She is the director of the 

Center for Safe and Responsible Internet Use and has degrees in 

special education and the law. She is author of two books, 

‘‘Cyberbullying and Cyberthreats: Responding to the Challenge of 

Online Social Cruelty, Threats, and Distress;’’ and ‘‘Cyber-Safe 

Kids, Cyber-Savvy Teens: Helping Young People Use the Internet 

Safety and Responsibly.’’ 

And our final panelist is John Palfrey, professor of law and vice 

dean for library and information resources at Harvard Law School. 

He is the co-author of ‘‘Born Digital: Understanding the First Generation of Digital Natives’’ and also ‘‘Access Denied: The Practice 

and Politics of Internet Filtering.’’ He recently chaired the Internet 

Safety Technical Task Force directed by the Berkman Center for 

Internet and Society at Harvard University. 

Each of the witnesses’ written statements will be entered into 

the record in its entirety. And I would ask each of our witnesses 

to summarize your testimony in 5 minutes or less. 

And to help you, there is a timing device on the table. It will 

start off green, will go to yellow when there is 1 minute remaining, 

and will turn red when your 5 minutes have expired. 

Professor O’Neil, it is good to see you again. 

TESTIMONY OF ROBERT M. O’NEIL, LAW PROFESSOR 

EMERITUS, UNIVERSITY OF VIRGINIA, CHARLOTTESVILLE, VA 

Mr. O’NEIL. Thank you, Mr. Chairman and Representative 

Gohmert. I am delighted and honored to have an opportunity to 

come to discuss with you a vital but also an exceedingly difficult 

issue of national policy. This is my 47th year of teaching constitutional law, free speech, and press, and this is one of the toughest 

issues I think I have ever encountered. 

Of those 47 years, I spent much of the last 25 teaching at the 

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tury, I had hoped to share four or five fairly basic points, which are 

more fully developed in the written statement that I had filed. 

First, it seems to me this issue has recently acquired a new kind 

of urgency, in part because of the graphic, sometimes cruel, brutal, 

and devastating experiences that the two earlier witnesses described so graphically and vividly. For me, as the grandfather of an 

Internet-savvy young lady who just turned 13, it is hard to avoid 

the potentially personal impact of such transgressions. 

It also acquires an urgency because, within the past month, the 

Federal district judge in southern California, by dismissing the 

charges against Lori Drew under the ‘‘Computer Fraud and Abuse 

Act,’’ essentially left Federal prosecutors with no viable recourse 

against even the most cruel form, the most extreme form of 

cyberbullying. 

Obviously, as Representative Gohmert pointed out earlier, any 

solution this Subcommittee or the full Committee or the Congress 

may craft must be compatible with the first amendment to the 

Constitution, must recognize the protections of free speech and 

press. 

Obviously, that requires finding some exception to those protections, the more urgent in this country because uniquely we, in the 

United States, and our courts presume that speech is protected 

until and unless it is shown to fall within one of several rather narrowly defined exceptions. Several exceptions have been suggested 

in this context—incitement, defamation, deception, true threats, invasion of privacy, fighting words—but for one reason or another, 

none of those exceptions really seems to be viable in this context. 

The one that potentially works is the one on which H.R. 1966 is 

premised, and that is intentional infliction of emotional distress. It 

is not a perfect fit, but that is a well-recognized tort remedy which 

has never been thought to violate or abridge free speech or free 

press. 

It hasn’t traditionally been applied in the criminal context, and 

that is one of the variations that requires consideration in this instance. But, for a whole lot of reasons, it seems to me that intentional infliction of emotional distress is by far the most promising 

of the various and potentially available exceptions to first amendment protection. 

It seems to me that H.R. 1966 is certainly on the right track. It 

is a very promising approach to this problem. I would, however, respectfully suggest consideration of three ways in which 1966 might 

be strengthened: The first would be to look at all possible types of 

intent which ought to be potentially punishable. The second would 

be to require proof that a particular person or victim has been targeted or singled out for special attention as a critical element of 

cyberbullying. 

The third is to require some evidence of impact or effect. In most 

cases, this would not be anything nearly as drastic as Megan 

Meier’s suicide. But I would suspect that, in a viable Federal prosecution, there would be evidence at least of time lost from school, 

of physical or other illness, consequences to the family, and so on. 

So I would respectfully urge consideration by the Subcommittee 

of possibly strengthening H.R. 1966 in those three respects. 

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Thank you. I would be happy to answer questions, but I very 

much appreciate this opportunity. 

[The prepared statement of Mr. O’Neil follows:] 

41 

PREPARED STATEMENT OF ROBERT M. O’NEIL


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Mr. SCOTT. Thank you. 

Ms. Warren? 

TESTIMONY OF JUDI WESTBERG WARREN, PRESIDENT, 

WEB WISE KIDS, SANTA ANA, CA 

Ms. WARREN. Thank you, Mr. Chairman and Members of the 

Committee, for inviting me to speak on this very important issue 

of children’s safety. 

I represent Web Wise Kids, which is a national nonprofit organization which has reached over 7 million kids within the United 

States with our programs. We are very thankful that Congress is 

addressing the issue of the growing need for Internet safety among 

our youth. 

Increasing online safety for children requires a comprehensive 

solution involving diverse stakeholders, including youth, parents, 

law enforcement, educators, mental health professionals, industry, 

and community-based organizations. Web Wise Kids believes 

strongly that Internet safety education is the most effective way to 

resolve problems and dangers relating to misuse of the Internet. 

In the United States, more than 35 million children in kindergarten through grade 12 have Internet access, and, each year, children are starting to use the Internet at a younger and younger age. 

The Internet is a powerful and growing medium, with more than 

1 billion Internet users worldwide. The Internet is an invaluable 

tool, critical to America’s ability to compete in a global economy. At 

the same time, it also poses great challenges to keeping kids safe 

in a new cyber world. 

This dramatic rise in children’s use of Internet has led to an increase in risky behaviors, such as cyberstalking and cyberbullying 

and sexting. Research indicates that youth are at risk online. For 

example, 43 percent of teens were victims of cyberbullying in 2008, 

and 33 percent of teenagers have been approached online by a 

stranger. 

Web Wise Kids strongly supports legislation to provide funding 

for Internet safety programs. New investments in our educational 

infrastructure will train and equip teachers and law enforcement 

with the tools they need to teach children to use the Internet and 

other technologies safely. 

Children are integrating technology into their lives at lightning 

speed. While this is a positive development, State and Federal 

funding is inadequate to meet that growing need. Students receive 

little education on safe and ethical Internet use. The majority of responsibility for teaching Internet safety falls on educators, who are 

often unprepared to provide this type of education. 

Federal law mandates that elementary and secondary schools receiving E-rate funding must have an Internet safety education program. However, no funding has been provided to meet this Federal 

requirement. 

Clearly, parents play a significant role. Providing targeted resources to the school system would also effectively help us to reach 

parents. 

Web Wise Kids strongly supports passage of the ‘‘AWARE Act’’ 

sponsored by Congresswoman Wasserman Schultz and Congressman Culberson, as well as its Senate counterpart sponsored by 

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Senator Menendez. This legislation is carefully crafted and will 

provide much-needed funding to support collaborative, comprehensive, and diversified approaches to online safety education in our 

schools. 

The bill’s centerpiece is a competitive Internet safety education 

grant program for State and local education agencies and nonprofit 

organizations to promote the safe use of digital technologies. The 

‘‘AWARE Act’’ identifies clear uses of the funding and includes 

safeguards to assure an effective research and evaluation component of the program. This legislation will go a long way to protect 

children and families online. 

While administered by the Department of Justice, Web Wise 

Kids strongly urges the concurrence of the Departments of Education and Health and Human Services in implementing this legislation. Interagency cooperation will allow for sharing insights and 

information. 

We applaud Congresswoman Sa ́nchez for raising awareness of 

cyberbullying as a significant problem for children in the U.S. 

Cyberbullying, like offline bullying, can cause substantial harm to 

our youth, including serious and long-term emotional and behavioral problems. For the victim of cyberbullying, there can be literally no place to run. Prevention of cyberbullying through educating kids on how to respond to online harassment is paramount, 

in our view. 

Imposing punitive sanctions requires careful examination. Targeted criminal penalties against severe forms of harassment might 

be appropriate if the legislation is able to withstand constitutional 

scrutiny. The most effective impact Congress can have is providing 

greater resources to promote Internet safety education in our 

schools and prevent harm from happening in the first place. 

Passage of this legislation, sponsored by Congresswoman 

Wasserman Schultz and Congressman Culberson, would be a first 

major step forward. Education builds lessons for a lifetime. With 

this legislation, we have an opportunity to enhance the skills of 

educators and provide students with hands-on opportunities to use 

technology safely and ethically for generations to come. 

Thank you. 

[The prepared statement of Ms. Warren follows:] 

49 

PREPARED STATEMENT OF JUDI WESTBERG WARREN


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Mr. SCOTT. Thank you. 

Mr. Silverglate? 


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TESTIMONY OF HARVEY A. SILVERGLATE, ATTORNEY, 

ZILKIND, RODRIGUEZ, LUNT & DUNCAN, LLP, CAMBRIDGE, MA 

Mr. SILVERGLATE. Thank you for the opportunity to testify this 

afternoon. 

My main occupation is that of a criminal defense and civil liberties trial lawyer, as well as an author. So I have done it, and I 

have written about it. And I have a certain perspective that I have 

gained from the enforcement of statutes like this out in the real 

world. 

In 1998, I published the book, ‘‘The Shadow University: The Betrayal of Liberty on American Campuses.’’ The book was largely 

about the enforcement of speech and harassment codes in American campuses of higher education. 

In 2009, earlier this year, I published another book, called ‘‘Three 

Felonies a Day: How the Feds Target the Innocent.’’ I am leaving 

a copy of each book here when I leave. You can use it as you wish, 

or not. 

But the impetus to publish these two books grew out of my observations in some of the cases that I tried. There are two problems 

that I noticed, both of which are present in this bill, the 

‘‘Cyberbullying Prevention Act.’’ 

First of all, there is a problem with the vagueness in the definition of the criminal conduct. And vagueness, incidentally, is distinct from overcriminalization. I have problems with overcriminalizing too many things, but at least if the statute is clear, you know 

where the lines are drawn. This statute has a significant vagueness 

problem, and that vagueness problem is exacerbated by the fact 

that it impinges on protected speech. 

I beg to differ with Professor O’Neil, but if one looks at the Supreme Court’s decision in Hustler Magazine v. Falwell, that was a 

case where the court, 8 to 0, unanimously overturned a verdict for 

Reverend Falwell against Hustler Magazine for the intentional infliction of emotional distress. The constitutional issue here is hardly clear. You don’t usually get eight-to-nothing opinions of the Supreme Court, where there is no constitutional problem. 

But my experience with harassment codes on college campuses 

tells me that this statute is going to cause a lot of problems, not 

only legal, but also it is going to prevent a lot of speech which is 

and should be constitutionally protected. 

I actually, after publishing ‘‘The Shadow University,’’ I had to 

start a nonprofit foundation called the Foundation for Individual 

Rights in Education in order to help the hundreds and hundreds— 

in fact, it is more than hundreds, it is thousands—of students who 

were, themselves, harassed by their colleges because they deigned 

to say things which were deemed by somebody else to be harassing 

or exceedingly unpleasant. 

Now, in ‘‘Three Felonies a Day,’’ I have catalogued scores of cases 

in the criminal justice arena where this same problem arises, people who are convicted for doing things that a lot of us would look 

at and say, well, wait a minute, how could that be a crime? And 

the cyberbullying bill uses the same kinds of terms that have 

caused such problems on campuses: ‘‘intimidate,’’ ‘‘harass,’’ ‘‘cause 

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ple, intelligent people, would differ as to what falls within one or 

another category. 

Essentially, this bill would criminalize communications that are 

very unpleasant, very annoying to the recipients. It will doubtless 

result in the charging of a substantial number of people whose activities are protected or should be by the first amendment. And, by 

its mere existence on the statute books, it will deter a vast number 

of people from exercising speech in a vast number of circumstances 

where we would all agree it should be protected. 

I am not making a case here for harassment. I don’t consider it 

our friend. True harassment is already covered more than adequately by State and even by Federal law via statutes outlawing 

and punishing true threats and other extreme conduct. 

All this bill would do, in my view, is criminalize existing tort law 

and federalize a perfectly adequate array of State statutes that 

criminalize true threats that are well understood within the common law tradition. So this bill would really, I fear, confuse citizens 

while deterring a vast array of constitutionally protected speech. 

Thank you. 

[The prepared statement of Mr. Silverglate follows:] 

58 

PREPARED STATEMENT OF HARVEY A. SILVERGLATE


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Mr. SCOTT. Thank you. 

Ms. Willard? 

TESTIMONY OF NANCY WILLARD, M.S., J.D., DIRECTOR, CENTER FOR SAFE AND RESPONSIBLE INTERNET USE, EUGENE, 

OR 

Ms. WILLARD. Thank you very much. 

I have prepared and provided you a joint statement of opposition 

to the Megan Meier cyberbullying bill signed by every author of a 

book on cyberbullying in the United States, as well as many other 


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risk-prevention professionals. This bill will not effectively address 

cyberbullying, for many of the reasons which you already outlined. 

[The information referred to follows:] 


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Ms. WILLARD. We also acknowledge the good intentions of Ms. 

Wasserman Schultz in addressing this through education, but we 

have significant concerns about this bill as currently drafted. So I 

would like to go into those. 

First of all, we have to understand that there is a lot of mistaken 

understanding in this area. In fact, the Lori Drew-Megan Meier 

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did not engage in or direct the communications, and she wasn’t 

even home when the harmful communications were sent. My information comes from the prosecutor in the community who presented 

at a MAG conference that I presented at. 

One in five teens have not been sexually solicited by adult sexual 

predators. That was primarily teen-on-teen sexual harassment, 

which they handled effectively. The incidence of online predation in 

2006, from Crimes Against Children Research Center, was around 

600 incidents, about 1 percent of all arrests for sexual abuse of minors. 

We have a significant amount of techno panic going on here. And 

until we get to an accurate understanding of the actual risks, we 

are not going to proceed effectively. So the actual risks include electronic aggression. I was going to say more, but, Mr. Scott and Mr. 

Gohmert, you have a great understanding of these issues. 

Risky sexual personal relationship issues. There is sexual solicitation going on. It is primarily among teens. We have unsafe cyberdating. Abusive partners are using this technology for control. And 

we have the sexting issue. 

We also have issues that haven’t even percolated up in our understanding. Unsafe communities, where kids are encouraging selfharm, anorexia, self-cutting; and also dangerous groups, online 

gangs and hate groups. And, Mr. Scott, we could do some amendments to your really excellent ‘‘PROMISE Act’’ to address some of 

these issues. 

The research has indicated that the young people who are at 

greater risk in the offline world are at greater risk online. These 

issues involved incidents between known peers. The majority of 

young people are actually making good choices online. And teens 

whose parents are actively and positively engaged are engaging in 

less-risk behavior. 

We have to stop the negativity that we have, the fear, the kind 

of ‘‘reefer madness,’’ ‘‘just say no’’ approach to these issues. To address these, we have a three-part program that we need to be 

doing. 

We need to make sure that we have Web 2.0 technologies in 

schools, because we can’t teach kids how to swim unless we get the 

swimming pools in school, okay? One of the major barriers to doing 

that is the fear that is generated about youth risk online that is 

grounded in an inaccurate understanding of these risks. 

In risk prevention, we look at things from a universal approach 

and a targeted approach. We need universal digital safety and 

media literacy in schools. Some of the challenges include: A lot of 

the curriculum that out there is this ‘‘reefer madness,’’ ‘‘just say 

no’’ approach. And there is a lack of accurate understanding among 

teachers. 

But this new requirement to the ‘‘Children’s Internet Protection 

Act’’ is causing a shift. Schools are mobilizing to address these 

issues, and there is new curriculum coming out that is really excellent and actually very low-cost to address these issues. We could 

reinforce this in the reauthorization of the ‘‘Elementary and Secondary Education Act,’’ but, Mr. Gohmert, I do not believe there is 

a significant need for the funding of the creation of curriculum in 

this area. 

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The next issue is targeted youth risk prevention and intervention. We have to address these more significant risks. One of the 

biggest challenges is that you eliminated the block grants for State 

and local Safe Schools funding at exactly the time that we need to 

mobilize these people to address these new risks. We need to ensure that our schools are addressing youth risk online in the context of their Safe School planning. 

We could have a discretionary grant program to target funds to 

risk prevention and intervention programs, much like what you 

have tried to do. But we absolutely have to have a triad of leadership in this area, not the Department of Justice in consultation 

with the Department of Mental Health and the Department of 

Education; a joint program similar to the Safe Schools and Healthy 

Students Program, where all three agencies are working in joint 

collaboration. 

And we also need to recognize that there will never be evidencebased best practices in this area. It takes about a decade to get an 

evidence-based best practice. The research is just emerging. These 

technologies are changing rapidly. 

There are provisions within the Safe School program to get a 

waiver from the principles of effectiveness if you establish an appropriate needs assessment, a plan that has a reasonable likelihood 

of success, and effective evaluation. So we need to tie this program 

to those existing requirements to ensure continuous improvement. 

Thank you very much. And I have offered my assistance to your 

staff to seek to improve this legislation. Thank you. 

[The prepared statement of Ms. Willard follows:] 

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PREPARED STATEMENT OF NANCY WILLARD


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ATTACHMENT 


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Mr. SCOTT. Thank you. 

Professor Palfrey? 


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TESTIMONY OF JOHN PALFREY, LAW PROFESSOR, 

HARVARD LAW SCHOOL, CAMBRIDGE, MA 

Mr. PALFREY. Mr. Chairman, thank you so very much for the 

honor of the invitation to be here. Ranking Member Gohmert and 

Members of the Subcommittee, thank you for focusing attention on 

this important issue. I want to speak first to the research that has 

been done in this area and then speak to a few of the solutions discussed today. 

I think that, Mr. Chairman, you described the state of the research extremely well. I have spent the last few years in the field 

doing research myself, talking to kids, parents, teachers, social 

workers, and others, but also, as the Chair of the Internet Safety 

Technical Task Force, which was commissioned by the Attorneys 

General, reviewed much of the research done by others in this 

field. 

I think that the state of affairs is that bullying online is on the 

rise. No matter how you define it, no serious observer disputes that 

fact. I think that one of the key aspects of this is that what we are 

seeing is that public spaces have moved from playgrounds to online 

spaces, online spaces often owned by private companies and online 

spaces that are often highly distributed. 

So, as we think about this, I think we need to think about, how 

do we want to govern behavior in these online spaces, and noting 

that kids don’t distinguish between their online lives and offline 

lives; it is mostly just life. So it urged us, in thinking about this, 

to focus less on the cyber part of cyberbullying and think of it as 

bullying, which is, I think, how most kids do. 

I think part of the problem, too, is this gulf that many have acknowledged between parents and teachers, social workers, and others who don’t feel that they have the tools to help, and the kids 

themselves who are engaging in risky behaviors in these online 

spaces, just as they do in the offline. And I think that any solution 

that we look at needs to address this problem of the gulf to put the 

right tools in the hands of parents, teachers, social workers, pediatricians, and others who are touching our kids’ lives. 

Turning to potential solutions, I think the Committee has done 

a great job at identifying potentials in this area. I think no one disputes the notion that this will require a series of different solutions, a series of different solutions with education at the core. I 

think it also goes without saying that parents have the greatest obligation here, and kids themselves. This is something that is most 

sensibly dealt with in the home. 

But I think we should also look to opportunities like using technologies as part of the solution and working with companies who 

are, in a way, the overseers of these playgrounds in many respects, 

and, of course, looking to the law. 

I would share the view that criminalization is not the answer, 

with due respect to Ms. Sa ́nchez. I won’t go into that since others 

have touched on the constitutionality, but also the effectiveness of 

that. I think it is crucial that law enforcement play a role in this 

space, but it needs to be, I think, a backstop. 

I think the education support described in the ‘‘AWARE Act’’ is 

precisely the right place to start from here. I think that, in reading 

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search in the field. It talks about public and private-type partnerships. It looks at at-risk kids, where we know many of the problems are. 

And I think it has been drafted in such a way as to support those 

kinds of activities that need supporting. And, as someone working 

in this field, I am keenly aware of the fact that there is not sufficient support for exactly this kind of work and that it is the most 

promising, even though even that will not get the entire job done. 

I would point to one other potential approach that, Mr. Chairman, you mentioned, about revisiting section 230 of the ‘‘Communications Decency Act.’’ I say this with some trepidation. There are 

many I respect who think this is a terrible idea, what I am about 

to say, and these are smart people. 

There is a statute on the books that exempts from liability online 

intermediaries, and that has been a very important part, I think, 

over the last decade or so of Federal legislation in this area. It has 

allowed for a great deal of innovation and so forth. 

But I do think that there are instances where this immunity is 

broad enough that bad actors are able to hide behind it in a way 

that disincentivizes the ‘‘good samaritan’’ behavior that you in the 

Congress thought about when you were passing this statute. 

Again, I would urge great caution in tinkering with this statute. 

Again, the costs, the demerits of this are with respect to innovation, and they might be very great in some cases. But I think we 

need to make sure that the law overall is incentivizing the kind of 

behaviors that we see in many good companies, Facebook and other 

social networks, that really exemplify good behavior here, while 

disallowing the bad actors from hiding behind a shield that we 

didn’t mean to give them. So I would urge a look in that direction. 

But, again, no one approach is going to solve the problem. I think 

that the community-based approaches that have been discussed 

today are precisely the right angle. And, again, I commend the 

Committee for focusing attention on this important issue. 

Thank you. 

[The prepared statement of Mr. Palfrey follows:] 

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PREPARED STATEMENT OF JOHN PALFREY


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Mr. SCOTT. Thank you, Professor Palfrey. 

We will now recognize ourselves under the 5-minute rule to ask 

questions. 

I will begin with Professor O’Neil. You used an interesting term 

involving the Constitution, ‘‘promising.’’ That didn’t quite get us 

there. I assume there would be no problems if the communications 

involved threats. 

Mr. O’NEIL. That certainly is a recognized exception. The Supreme Court has never really defined ‘‘true threat.’’ They have used 

that phrase and implied that true threats are not constitutionally 

protected, like fraud and inducement and accessory before the fact 

and a whole other range of uses of language that are not protected 

speech. 

My assumption is that, and I think that both of you pointed to 

this possibility, some elements in a cyberbullying communication or 

a series of cyberbullying messages undoubtedly would be threats, 

but I would think the greater part of the kind of cyberbullying message that creates the greatest concern, indeed anguish, among 

those who seek to redress are not really threats. They aren’t incitement, they aren’t fighting words, they aren’t libel. They don’t fit 

into any of these categories. 

Mr. SCOTT. You suggested that intentional affliction of emotional 

distress is normally a civil action, not criminal. 

Mr. O’NEIL. It is. 

Mr. SCOTT. Can you convert it into a crime? 

Mr. O’NEIL. It has not been done, to my knowledge. 

Mr. SCOTT. Is it protected from criminal, but not protected from 

civil? 

Mr. O’NEIL. It is so clearly—the classic case being one person as 

a cruel joke or a hoax sends an e-mail message to somebody else 

saying, so sorry to hear of your brother’s death last week, when, 

in fact, the brother is alive and well. It has been widely assumed— 

I have never seen a first amendment jurisprudence or scholarship 

to the contrary—that in a classic situation of that kind, a civil recovery would be feasible. The Falwell-Hustler case to which Mr. 

Silverglate referred is in some ways troublesome, but the Supreme 

Court’s concern was that Reverend Falwell was a very prominent 

public figure, and as a public figure plaintiff, by analogy to the 

New York Times privilege, he was denied recovery. 

Mr. SCOTT. We don’t have that public figure exception in criminal 

law, do we? 

Mr. O’NEIL. Probably not, although the context of which we are 

talking, cyberbullying, almost inevitably involves people who are 

not public figures. And until it becomes a media issue, for example, 

or leads to litigation, they are neither public figures, nor are they 

engaged in a matter of public concerns. So I am assuming we 

passed that barrier. 

But as I noted in my prepared testimony, the absence really of 

any either supportive or preclusive reasoning with respect to a 

criminal application of intentional infliction of emotional distress is 

an issue. I just am not aware of any jurisprudence or scholarship 

that argues strongly either way. So I guess I would say it is worth 

a try. 

135 

Mr. SCOTT. Well, we have dealt with this with telephones. You 

are familiar with, in Virginia, 18.2429, causing telephone to ring 

with intent to annoy—— 

Mr. O’NEIL. Yes. 

Mr. SCOTT [continuing]. Where any person with or without the 

intent to communicate, but with intent to annoy, causes a telephone to ring is guilty of a misdemeanor crime. 

Mr. O’NEIL. I think the intent to annoy may be troublesome for 

different reasons, and that is one of the reasons I suggested in 

1966 that further attention to sharpening the intent elements 

would be a starting point, as well as targeting—— 

Mr. SCOTT. Well, we differentiate with telephone and mail. You 

can prohibit making somebody’s telephone—you can prohibit ringing telephone communications that you probably couldn’t prohibit 

mailing something because of the intrusion. Do we have the same 

problem with the Internet? 

Mr. O’NEIL. We don’t really know. When the Supreme Court, 

now 12 years ago, granted full first amendment protection to Internet speech, something they had not in decades done with respect 

to any other new medium, they left a lot of issues unanswered. And 

there are some downside implications, cyberbullying perhaps the 

most dramatic of which, we are only becoming aware, and on which 

the Supreme Court really has had no occasion to rule. So, again, 

I would say there have got to be some dark shadows in this generally promising penumbra called the Internet, and cyberbullying 

may be the darkest of them. 

Mr. SCOTT. I have other questions, but I will defer at this time 

to the gentleman from Texas Mr. Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

And thank you for all of your testimony. Very thoughtful. And 

it does raise interesting issues. 

Professor O’Neil, when you talk about intentional infliction of 

emotional distress, there are some States like Texas and in the 

legal literature of most places is an ongoing debate over whether 

or not that is sufficient to create a cause of action in tort law without some type of physical manifestation of the harm. So this would 

be taking that a couple of lightyears further down the road. We are 

going to jump past the physical manifestation of harm and go 

straight to making it a crime, which you say, as I understand you, 

it may fit here, but this is a troublesome horse to ride in for this. 

Mr. O’NEIL. It certainly does raise questions. But your reference 

to the requirement of some discernible harm doesn’t have to be suicide, doesn’t have to be injury or heart attack. But it seems to me 

a conscientious prosecutor would never charge somebody under a 

cyberbullying statute without some fairly graphic evidence of impact or effect. I don’t think that undermines the case; I just don’t 

think it will be worth—would make sense to bring such a case unless there were evidence of effect or impact. 

Mr. GOHMERT. Or unless somebody wanted to harass the harasser. And there have been prosecutors that went out of their way 

to seek indictments just to harass, as you, I am sure, know the old 

saying, a good prosecutor could indict a ham sandwich. 

But without the public figure exception, then it does get interesting for us, because all Members of Congress are accused of all 

136 

kinds of things. I get an e-mail my dad forwards regularly saying: 

If you guys would just get on Social Security, then it would solve 

the Social Security problem. They don’t know we have been on Social Security for a number of years. And Ron Paul told me back in 

July that some liberal blog just put up that there was only one 

Member of Congress crazier than Ron Paul, and it was Louie 

Gohmert. So I don’t know if that was meant to compliment or harass, but—— 

Mr. O’NEIL. Truth is a defense. 

Mr. GOHMERT. Yeah, there is that. 

And then you have got the situation where most everything that 

is on television or on video ends up on the Internet. And Sarah 

Palin would have all kinds of cause of actions, but do you really 

want to arrest David Letterman for a bad joke? 

It creates troublesome issues here of what is not intended to 

harm, but intended to be humorous. And then practical jokes, those 

abound on the Internet. So it is a troublesome legal issue. 

Now, I am intrigued, Ms. Willard, by your comments about 

maybe be more assistance through the block grants for the Safe 

Schools. Do you want to comment on that? 

Ms. WILLARD. Yes. President Obama’s budget—I am not sure everything that is going on there, but President Obama’s budget zeroed out the funding for the States and local block grants for Safe 

Schools. They are redoing that program. My concern is that we 

have we have to move forward to address these issues of threats 

on line. The impact of these harmful actions is coming to school, 

and the programs that—the personnel, the expertise that is in 

place at the State and local level to address these issues are the 

Safe School folks. 

Mr. GOHMERT. What about the adults that have similar problems? 

Ms. WILLARD. Well, my focus is on teens. And maybe if we can 

get it during teens. 

Mr. GOHMERT. They can teach their parents. 

Ms. WILLARD. Yeah. But so within schools, we really need to 

have these Safe School programs, at least the State and local infrastructure funded, in order to be able to move forward to address 

these youth risk on-line issues. And then in the reauthorization of 

the Elementary and Secondary Education Act, we need to make 

sure that the Safe School plans are also addressing youth risk on 

line. 

Mr. GOHMERT. Well, I see my time is about expired, but I really 

appreciate what you all bring to the debate, and it does pose some 

really interesting issues. But obviously there is a problem, as there 

always has been. And as one who was regularly beat up because 

I was small, but I wouldn’t take stuff from the bigger guys, I am 

sensitive to bullying of any kind, and I don’t want to overreact. 

Ms. WILLARD. I went through junior high as Weirdo Willard, so 

we share that. 

Mr. GOHMERT. Well, actually junior high is when I came out of 

my shell and started being a comedian back in those days. Not so 

funny anymore though. 

But thank you, Mr. Chairman. I yield back. 

Mr. SCOTT. Thank you. 

137 

The gentleman from California. 

Mr. LUNGREN. Thank you, Mr. Chairman. 

Mr. SCOTT. Thank you. 

The gentlelady from Florida has just stepped back in. Thank you 

for deferring. The gentlelady from Florida. 

Ms. WASSERMAN SCHULTZ. Thank you, Mr. Chairman. I had to 

take a call from our caucus Chairman. I apologize for stepping out 

a minute. 

Ms. Westberg Warren, I, first of all, want to congratulate Web 

Wise Kids on all of the good work that your organization does, and 

I appreciate your assistance with the Internet safety education 

town halls that we have done in my congressional district. I can 

tell you that the way that your presenters interact with kids of all 

ages in age-appropriate ways, and the way the breakouts work separating parents and children is really a breakthrough for them, 

and it does lead to safer Internet behavior. 

What I wanted to ask you is my good friend from Texas who 

needs truth as a defense made a reference to not thinking that we 

need a competitive grant program for Internet safety education, 

and this is just something that can be left up to parents and 

schoolteachers, and your colleague who is testifying with you today 

seems to imply that there is enough curricula out there, and that 

it isn’t necessary to create anything else, and that everything is 

just fine. 

So can you address those two comments, which I don’t agree 

with, and I would imagine you don’t either. 

Ms. WARREN. Thank you for asking the question. 

Yes, I absolutely do not agree with that. First of all, children 

really are our priority. They are our most valuable resource in this 

country, and we not only want to safeguard them on the Internet, 

but we want them to enjoy the Internet and thrive on it; and that, 

being able to thrive on it, is threatened if they are having serious 

consequences to their interaction on line. 

The second thing is that there virtually is no funding out there. 

As an organization that has reached 7 million kids over the last 

several years, we are constantly looking for funding. Our programs 

cost a lot of money to produce because we are looking for effective 

ways to reach kids. One of the ways that we used to reach kids are 

using their own medium, computer games, and they are very costly 

to produce. So we are definitely as a nonprofit—— 

Ms. WASSERMAN SCHULTZ. But if you can address, why can’t parents do it on their own? Why is it something that we need to be 

teaching in the schools? Why do we need to be creating Internet 

safety education programs to give tools to teachers and to parents 

to help them understand how they can reach their children? 

Ms. WARREN. Because there is no current way that teachers are 

educated on how to implement Internet safety. 

Ms. WASSERMAN SCHULTZ. So there is no comprehensive way? 

Ms. WARREN. There is no comprehensive way. 

Ms. WASSERMAN SCHULTZ. There is no continuing education programs. There is no consistent, comprehensive national approach to 

the curricula? 

Ms. WARREN. No. But is a mandate. The E-Rate mandates that 

they have safety programs, and yet there is no funding for it. So 

138 

parents are also critically important to this, but are oftentimes 

catching up to their children in their knowledge of technology. So 

empowering parents to be able to talk to their kids about Internet 

safety is critical, too. 

Ms. WASSERMAN SCHULTZ. Thank you. 

Ms. Willard, I have to tell you, I find it offensive that you would 

suggest that you would split hairs over whether Lori Drew was or 

was not home, was or was not involved in—I mean, she was convicted of a crime. It was later overturned, but she was—there was 

enough evidence for a jury and a judge to determine that she was 

culpable and significantly involved in events that led to the suicide 

of a young girl. And as mother of young girls, I find it offensive 

that you would suggest that that should just be cast aside and that 

it was unimportant. 

It is also offensive to me for you to suggest that there is only 600 

cyberbullying or—you made a reference to there being 600 instances of a particular type of bullying. 

Ms. WILLARD. That was arrests for on-line sexual predation. 

Ms. WASSERMAN SCHULTZ. All the worse then, because if it is 

your child that is the victim of that predation, it doesn’t matter if 

it is 600, 6, or 1. If it is your child, it matters a whole lot. So I 

wouldn’t—I really think it is offensive that you would trivialize the 

amount of—assuming that your numbers are even correct. 

But let me get to your comments on my legislation. In your submitted testimony, you labeled it entirely unacceptable, and that is 

pretty strong language. Let me just be clear. I don’t want to have 

an ineffective safety net program, and under my bill these are concepts that would be taught by Internet safety nonprofits, not police 

officers. You do understand that, right? You understand that this 

is information that would be imparted by Internet safety organizations. Okay. And one of the reasons that you are opposed to it is 

because you have—you oppose the funding from the Department of 

Justice. 

Ms. WILLARD. No. 

Ms. WASSERMAN SCHULTZ. Correct? 

Ms. WILLARD. No. This needs to be funded and controlled jointly 

by the Department of Mental Health, by the Department of Education. 

Ms. WASSERMAN SCHULTZ. But you don’t want the grant program 

to be through the Department of Justice, correct? 

Ms. WILLARD. It needs to be funded through all three. 

Ms. WASSERMAN SCHULTZ. And, again, you think that these are 

concepts that would be taught by police officers? You do understand. 

Ms. WILLARD. No. I understand that the intention of the bill— 

the concern I have is—— 

Ms. WASSERMAN SCHULTZ. No. I heard your concern in your testimony. But this is not a view that you have always held, correct? 

Ms. WILLARD. I have always had concerns with the funding 

through the Department of Justice. 

Ms. WASSERMAN SCHULTZ. Well, in fact, you supported. 

Ms. WILLARD. And with the focus on—— 

Ms. WASSERMAN SCHULTZ. Well, in fact, you supported—on 

March 21, 2008, you sent out an action alert to your supporters 

139 

when Senator Coburn put a hold on the very same bill that Senator 

Menendez is sponsoring this year, correct? 

Ms. WILLARD. Yes. 

Ms. WASSERMAN SCHULTZ. And in that e-mail, you begged for 

pressure from the field to be placed on Senator Coburn to release 

this hold. This is money that can come through the State and local 

education organizations as well as Internet safety organizations to 

support education. Those are your words, yes? 

Ms. WILLARD. Uh-huh. 

Ms. WASSERMAN SCHULTZ. And you are aware the bill you rallied 

for was funded through the Department of Justice, Yes? 

Ms. WILLARD. Yes. 

Ms. WASSERMAN SCHULTZ. Okay. Now, that was 2008. But, Ms. 

Willard, you supported the Menendez legislation when he and I unveiled it at a Senate press conference this May, didn’t you? 

Ms. WILLARD. Yes. 

Ms. WASSERMAN SCHULTZ. Okay. You also forwarded Senator 

Menendez’s office a press release that you sent to the Ed Tech 

Listserv, which again you stated you were exceptionally delighted 

with the language of the bill. Your words, right? 

Ms. WILLARD. It was a significant improvement over the—— 

Ms. WASSERMAN SCHULTZ. But the words you used was ‘‘exceptionally delighted.’’ 

Ms. WILLARD. Yes. 

Ms. WASSERMAN SCHULTZ. You don’t seem exceptionally delighted today. And in that e-mail, you said we were headed in the 

right direction, and you recommended your followers contact their 

Representatives and Senators to support this legislation, correct? 

Ms. WILLARD. Uh-huh. 

Ms. WASSERMAN SCHULTZ. You also e-mailed reporters from the 

Associated Press and the New York Times asking them to write favorable stories about that legislation, our legislation, correct? 

Ms. WILLARD. Correct. 

Ms. WASSERMAN SCHULTZ. And that Senator Menendez and I 

were to be congratulated on this very positive step forward. 

Ms. WILLARD. Yes. 

Ms. WASSERMAN SCHULTZ. So at the very least, you would agree 

that you have been very inconsistent on this issue. 

Ms. WILLARD. Correct. 

Ms. WASSERMAN SCHULTZ. Okay. Well, it is hard for us to take 

your testimony seriously and treat you as an expert when you have 

been all over the board on the same bill with the same language. 

Ms. WILLARD. This bill has been amended. The Menendez bill did 

not focus exclusively on Internet crime. This bill has now admitted 

an involvement with the Department of Education and the Department of Mental Health. 

Ms. WASSERMAN SCHULTZ. The Menendez bill has not been 

amended. It is the same language. 

Ms. WILLARD. Your bill is focusing solely on Internet crime. 

Ms. WASSERMAN SCHULTZ. No, it is not. That is absolutely not 

the case. 

Ms. WILLARD. We need to address—— 

Ms. WASSERMAN SCHULTZ. Have you read my bill? 

Ms. WILLARD. Yes. We need to address—— 

140 

Ms. WASSERMAN SCHULTZ. You have read the bill that is before 

this Committee? 

Ms. WILLARD. Yes. We need to address these issues in a collaborative fashion, and it needs to involve the Department of Mental 

Health and the Department of Education. 

Ms. WASSERMAN SCHULTZ. Well, this bill focuses on Internet 

safety education, not Internet crime. So I think you should reread 

the bill so that you can understand its focus better. And I would 

be more than happy to sit down with you and work with you to address some of your concerns. But I think we both have to be on the 

same page first before we haul off and criticize legislation that, A, 

we supported before and, B, we don’t seem to understand today. 

Thank you. I yield back the balance of my time. 

Mr. SCOTT. Thank you. 

And we had a couple of other questions. One, it seems to me that 

if we are going to reduce cyberbullying, it is a lot less complex dealing with the education program, as the gentlelady from Florida has 

offered, because you don’t get into the constitutional quagmire. 

Mr. Silverglate, are there constitutional problems in reducing 

cyberbullying with what are essentially education grants? 

Mr. SILVERGLATE. No. I don’t see any constitutional problems 

with that. I didn’t even mention it in my testimony. That is just 

a question of whether you are likely to get your money’s worth, and 

that is a judgment that I really don’t have the experience to make. 

Mr. SCOTT. Now, about every night you have cable news commentators insulting each other with the intent to harass or cause 

substantial emotional distress to each other. If they did that over 

the Internet, if that was streamed over the Internet, would that be 

a crime under H.R. 1966? 

Mr. SILVERGLATE. Well, I do think that there are unforeseen dangers in this kind of legislation using terms which historically have 

given us a lot of difficulty in definition. 

The thing about State common law jurisprudence is that it has 

been around a long time. Definitions have been honed over the centuries, and at various States we have a pretty good idea what we 

mean by ‘‘harassment.’’ But the Federal—in Federal law, I think it 

is really an invitation to constitutional mischief. And since State 

law, it seems to me, does deal adequately with the problem of harassment, I don’t know why we would be wanting to get into a 

whole new jurisprudential arena. 

I think that the transfer, the movement of the harassment concept front the civil tort arena to the Federal criminal arena, it is 

just an invitation into what I call constitutional mischief, and a lot 

of people are going to end up convicted of crimes that I think most 

people in this room would agree should not be crimes. So it seems 

to me very problematic and no real benefit. 

Mr. SCOTT. Now, is there a difference between e-mailing somebody directly and posting something somewhere on the Internet? 

Mr. SILVERGLATE. One of the things that concerns me is that 

when Federal law, Federal legislation begins to focus on things like 

harassment or threats, it mostly focuses on the medium rather 

than on the actual act. So I think we are more afraid, if I can use 

that term ‘‘more afraid,’’ of communications that go over channels 

that we are less familiar with, that society has less experience 

141 

with. I think there is still a certain amount of cyber fear that goes 

into legislation such as is being proposed, and I think we should 

try to not focus so much on the medium and to focus instead on 

the substance of the communications. 

You know, we had this idea that children are sitting in front of 

a screen, and Lord knows what they are saying, and Lord knows 

what they are reading and what they are doing. There is a certain 

amount of fear factor in that. If we try to factor that out, I think 

we will get back to the notion that State law really does handle 

this pretty well. It should not be a subject of Federal criminal interest. 

Mr. SCOTT. When does posting things on the Internet become so 

harassing that it becomes a crime? Professor Palfrey, do you have 

a comment on constitutionality of posting things on the Internet 

that may—if somebody goes and looks at it, might be insulted and, 

because of youth, traumatized? 

Mr. PALFREY. I certainly share the view that this is a horrible 

thing, and we should apply many approaches to address it. But I 

share Mr. Silverglate’s view on the constitutionality question. 

Mr. SCOTT. Mr. O’Neil, do you have any other comments on that? 

Mr. O’NEIL. These cautions, I think, are very well taken. And the 

need for sharper definitions seems to me part of the next step in 

the maturation or development of 1966. 

Mr. SCOTT. Would there a difference between posting something 

on the Internet? 

Mr. O’NEIL. Yes. And that is why I specifically urge that one of 

the requirements of any such—one of the elements of any such offense should be evidence that a particular person or victim was targeted. 

Mr. SCOTT. But you can have somebody’s name posted. 

Mr. O’NEIL. I don’t think that is enough. It really has to be person-to-person evidence not only of the kind of intent that is spelled 

out in 1966, but a following paragraph which describes the process 

for identifying targeting of a particular person and then—— 

Mr. SCOTT. If you posted very insulting information on the Internet, and even if it is true, it can be traumatizing, invasion of privacy. How bad, how—where is the line between teasing and criminal? 

Mr. O’NEIL. Nothing is said here about truth or falsehood, but 

I would assume that only harassing statements which were false 

and known to be false would satisfy the intent requirement of the 

first paragraph. And if it is simply teasing, or if it is true but being 

misused, if it is, let us say, an invasion of privacy, I don’t think 

you ought to get beyond the first paragraph even to the consideration of targeting and impact or effect in the second—— 

Mr. SCOTT. Well, some things could be—you could be racially insensitive, appearance insensitive, and tease someone into the point 

of trauma. 

Mr. O’NEIL. I don’t think that is nearly enough. And such a statute, it seems to me, ought to be structured so that statements of 

that kind could not be caught. I think Mr. Silverglate issues a very 

strong warning, which I fully share, that a criminal law of this 

kind could be abused, it could be misused. It could pick up all sorts 

142 

of just unpleasant adverse insults and so on. It has got to be written in such a way that that can’t happen. 

Mr. SCOTT. Ms. Warren, can truthful insults get to the point 

where they would be traumatizing? 

Ms. WARREN. I believe so, yes, and especially if two teenagers. 

You know, you have to understand that as we are talking about 

teenagers, there are a lot of things still developing in their minds 

and in their hearts, and they are especially vulnerable during that 

time. Some of the things that happened, as we have heard today, 

can affect them for their entire lifetime. 

Mr. SCOTT. Thank you. 

Mr. Gohmert. 

Mr. GOHMERT. Just briefly follow up on a couple of things. To follow up on that, one of the comments that has been—one of the 

things that has been discussed is the conveyance of naked pictures 

and then those being broadcast throughout the Internet. They are 

true pictures, they are accurate pictures, and yet the purpose was 

clearly to harass, intimidate, and belittle, hurt the individual who 

was in the pictures. So I get the impression that those—even 

though they are true and accurate, that that is not something that 

is going to be excluded under what is being proposed here, which, 

again, opens the door to a great deal of danger. So that is a concern. 

I also wanted to make—— 

Mr. SCOTT. Would the gentleman yield? 

Mr. GOHMERT. Yes. Sure. 

Mr. SCOTT. I think the question would have to be asked in such 

a way that the picture was taken of an adult and transmitted to 

adults. Once you get into children, you have some opportunity to 

deal with it as child pornography. So long as it is not obscene for 

adults, you would have the constitutional problems. 

Mr. GOHMERT. But the example being given is a juvenile having 

naked pictures of themselves transferred or sent to a boyfriend. So 

they are the ones that took them, they sent them. But then it was 

the release of those pictures publicly that was intended to harass 

and belittle, and that is a problem. 

But I want to make sure everybody understood, under Federal 

laws, 18 U.S.C. 2261(a) prohibits an individual from using the 

mail, any interactive computer service, or any facility of interstate 

or foreign commerce to engage in a course of conduct that causes 

substantial emotional distress to that person or places that person 

in reasonable fear of death. 18 U.S.C. 875 makes it a crime punishable by up to 5 years in prison to transmit any communication in 

interstate or foreign commerce containing a threat to injure another person. 

So there are some bills—some laws out there dealing with this 

issue to some extent. But I did want to make clear that my position 

was not mischaracterized. My friend Ms. Wasserman Schultz, I believe, has the very noblest of intentions with this proposal here. No 

question about her intent. It is nothing but noble and good. But I 

believe I understood her to characterize part of my position is, 

quote, that everything is just fine. And that is not my position. 

There is nothing fine about people being belittled, harassed, intimidated over the Internet or any other way. 

143 

So this is a rhetorical question that I would conclude with. But 

is this really an issue of lack of technical understanding of the 

Internet, or is it a lack of morality? Chuck Colson once said, you 

can’t demand the morality of Woodstock and not expect a Columbine. If the morality is if it feels good, do it, then somebody is 

going to wonder if it feels good to belittle somebody over the Internet or shoot somebody or harm somebody. That will happen. We 

have got to come back around to a sense of morality that has been 

a problem throughout the ages. 

But I thank you for the time and yield back. 

Mr. SCOTT. Thank you. 

Mr. Gohmert was reading the stalking prohibition, and it says: 

Causes substantial emotional distress or what we would call 

threats of serious bodily harm, which would be easy. But ‘‘causes 

substantial emotional distress.’’ I think Professor O’Neil was saying 

that you would have to connect it with actual harm. And if you 

have actually caused substantial emotional distress, that would— 

that psychological damage would qualify for what you were talking 

about? 

Mr. O’NEIL. It would have to be, I think, medically certified. It 

really would have to be provable, and it would have to be significant. Otherwise I just don’t think it is a viable case. 

Mr. SCOTT. Thank you. 

I would like to thank our witnesses for their testimony today. 

Members may have additional written questions for the witnesses, 

which we will forward to you and ask that you answer as promptly 

as you can so that the answers may be part of the record. 

We have received written testimony from the ACLU and from 

Baron Zoker and Adam Thayer, which will be included in the 

record, without objection. 

Without objection, the hearing record will remain open for 1 

week for the submission of additional materials. 

And, without objection, the Subcommittee stands adjourned. 

[Whereupon, at 5:05 p.m., the Subcommittee was adjourned.] 

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176 


C-23.eps
177 


C-24.eps
178 


C-25.eps
179 


C-26.eps
180 


C-27.eps
181 

Æ 


C-28.eps