Protection of Children Online: Federal and State Laws Addressing Cyberstalking, Cyberharassment, and Cyberbullying
Released: 2009-10-19T00:00:00

Introduction

Federal and state laws have always played a role in protecting minors from criminal victimization. For example, Congress has enacted laws dealing with child pornography, child luring, and child sexual exploitation. However, given its immediacy, anonymity, and accessibility, the Internet offers a forum, through social networking sites, for harassment and other social ills committed against minors. The Internet's nuances present new challenges for federal and state legislators and law enforcement personnel responsible for defining and prosecuting criminal use. This is especially true with the relatively new crime of Internet "harassment." The term Internet harassment usually encompasses "cyberstalking," "cyberharassment," and/or "cyberbullying." These activities, when committed against minors, may cause emotional harm. Recent high-profile cases involving teen suicides demonstrate the potentially severe consequences of this emotional harm. As such, legislators are faced with determining how to handle the problem.

Various laws, not specific to minors, govern traditional crimes such as stalking and harassment, which generally include a threat of harm. These laws generally criminalize unlawful conduct that fails to rise to the level of assault or battery. Recognizing that the Internet can be used to stalk or harass individuals, Congress and some states have amended "traditional" stalking and harassment statutes to include Internet activity. However, these statutes are generally inapplicable in situations in which minors suffer emotional harm due to embarrassment or humiliation. When, if ever, should criminal sanctions be imposed for these incidents? Should legislators amend traditional stalking and harassment statutes to cover these situations? Or should legislators create new crimes covering such activity? Should such activity conducted by a neighbor, for example, be prosecuted on the federal level because the Internet was used? Or should prosecution of such activity remain at the state level? These are just some of the questions legislators may consider in addressing the problem of Internet harassment of children. While these policy considerations are noteworthy, this report focuses on the applicable constitutional constraints legislators may consider in drafting legislation in this area.

Background

Congressional Authority to Legislate Internet Activities

Generally, states assert jurisdiction over law enforcement authority within their borders. However, Congress may legislate in the state law enforcement arena under certain constitutionally permissible circumstances. For example, Article I, Section 8, Clause 4 of the United States Constitution authorizes Congress to "regulate Commerce with foreign Nations, and among the several States." There are three categories of activities subject to congressional regulation under the Commerce Clause. Congress may regulate the use of the channels of interstate commerce, or persons or things in interstate commerce, although a threat may come only from intrastate activities. Finally, Congress may regulate those activities having a substantial relation to interstate commerce (i.e., those activities that substantially affect interstate commerce). As the Internet is an instrumentality of interstate commerce, Congress has the power to enact appropriate legislation. Pursuant to this authority, Congress has enacted laws designed to protect children.

Selected Federal Internet Laws

Congress has enacted several statutes designed to address protection of children on the Internet. These statutes run the gamut from establishing new crimes (i.e., use of interstate facilities to transmit information about a minor) to expanding the scope of existing crimes (i.e., child luring). In addition, Congress has enacted laws designed to curtail both the downloading of inappropriate content by children and the uploading of impermissible personal information from children.

Child Online Privacy Protection Act (COPPA)/Child Online Protection Act (COPA)/Children's Internet Protection Act (CIPA)

The Child Online Privacy Protection Act (COPPA) is directed to the protection of children less than 13 years of age from operators of commercial websites or online services. COPPA mandates several requirements for sites that either direct their services to children under the age of 13 or have actual knowledge that their general audience site is collecting information from such children. The act applies to individually identifiable information about children, and requires, among other things, that sites post a clear notice of their data collection practices on their home pages and on every page where information is requested.

Another federal statute, the Child Online Protection Act (COPA), restricts access by minors to materials commercially distributed that are harmful to minors. However, COPA has never taken effect because a federal district court issued a preliminary injunction against its enforcement pending trial. The injunction was affirmed on appeal by the Supreme Court, which, on June 29, 2004, remanded the case for trial. On March 22, 2007, a federal district court found COPA unconstitutional and issued a permanent injunction against its enforcement. On July 22, 2008, the Third Circuit Court of Appeals upheld the 2007 decision.

Finally, the narrowest statute, the Children's Internet Protection Act (CIPA), applies only to public libraries and schools and mandates that they employ software filters to restrict access by minors to inappropriate material. CIPA has withstood challenge to its constitutionality.

Use of Interstate Facilities to Transmit Information About a Minor

18 U.S.C. § 2425 prohibits the use of a facility of interstate commerce, such as a computer connected to the Internet, to transmit information about a minor under the age of 16 for criminal sexual purposes. Individuals convicted under this statute face a punishment of a fine and/or maximum imprisonment of five years.

Child Luring

In addition to the aforementioned protections, federal and state legislators have enacted several criminal provisions designed to punish Internet users who hurt minors physically. Some laws that traditionally protect children, such as those used to combat child pornography and luring, have been expanded to apply to situations where an individual uses the Internet to facilitate the crimes. For example, "child luring" consists of an adult knowingly and intentionally inducing a child, by means of a computer, to engage in sexual intercourse or sexual conduct. A majority of states have laws that specifically prohibit electronic luring or solicitation of minors by computer for the purpose of inducing them to engage in illegal sexual conduct. On the federal level, child luring is covered by 18 U.S.C. § 2422(b), which prohibits the use of any facility or means of interstate commerce to knowingly persuade, induce, entice, or coerce a minor to engage in criminal sexual activity or prostitution, or to attempt to do so. Violators of 18 U.S.C. § 2422(b) face a punishment of a fine and a minimum imprisonment of 10 years or life.

Internet Harassment

Internet harassment is a new phenomenon that presents a challenge for law enforcement, legislators, educators, and parents. The term Internet harassment lacks a uniform definition but usually encompasses cyberstalking, cyberharassment, and/or cyberbullying. It is worth noting that most cyberstalking and/or cyberharassment statutes cover both adult and minor victims. If one were to categorize these activities based on danger or greatest potential harm, cyberstalking would be the most dangerous, followed by cyberharassment and then cyberbullying. Generally, cyberstalking includes a credible threat of harm, while the other two do not. Cyberharassment and/or cyberbullying may cause embarrassment, annoyance, or humiliation to the victim. Some individuals use the terms cyberharassment and cyberbullying interchangeably, while others reserve the term cyberbullying to describe harassment between minors, usually within the school context.

In a criminal context, these activities are predicated on a perpetrator's desire to inflict emotional harm, usually in the form of humiliation or embarrassment. Legislators are faced with several questions in tackling this problem as it pertains to minors. When, if ever, should individuals be criminally liable for causing humiliation or embarrassment to another? Should new laws be created to cover such action? Or, is it sufficient to amend existing laws?

Cyberstalking

Cyberstalking refers to the use of Internet, e-mail, or other electronic communications to stalk another person. A cyberstalker may send repeated, threatening, or harassing messages. Or a cyberstalker can urge other Internet users into harassing or threatening a victim by utilizing Internet bulletin boards or chat rooms. For example, a cyberstalker may post a controversial or enticing message on a board under the victim's name, address, phone number, or e-mail address, resulting in the victim receiving subsequent unwanted responses. Each message, whether from the actual cyberstalker or others, may have the intended effect on the victim, even though the cyberstalker's effort tends to be minimal. Due to the lack of direct contact between the cyberstalker and the victim, it is sometimes difficult for law enforcement to identify, locate, arrest and subsequently prosecute the offender.

The anonymity of the Internet also provides new opportunities for cyberstalkers. A cyberstalker's true identity can be concealed by using different Internet service providers (ISPs) and/or by adopting multiple screen names. Anonymity leaves the cyberstalker in a somewhat advantageous position. Unbeknownst to the target, the perpetrator could be in another state, around the corner, or in the next cubicle at work. The perpetrator could be a former friend or lover, a total stranger met in a chat room, or simply a teenager playing a practical joke.

State and local law enforcement agencies are sometimes hampered by jurisdictional limitations. A cyberstalker located in a different city or state than the victim may present more of a challenge for local authorities investigating an incident. Even if a law enforcement agency is willing to pursue a case across state lines, it may be difficult to obtain assistance from out-of-state agencies when conduct has been limited to harassing e-mail messages without the occurrence of actual violence.

Several states have laws that explicitly include electronic forms of communication within stalking or harassment laws. For example, California legislators amended the state stalking law to expressly include stalking via the Internet. Under California law, a person commits stalking if he or she "willfully, maliciously, and repeatedly follows or harasses another person and ... makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family." The term "credible threat" includes threats that are (1) "performed through the use of an electronic communication device, (2) implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements."

Table 2 provides a list of states that have enacted cyberstalking statutes.

Federal laws designed to combat cyberstalking exist. For example, 18 U.S.C. § 2261A 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." However, this statute is inapplicable in situations where both the victim and perpetrator are in the same state or tribal jurisdiction. While this law was amended in 2006 to include "interactive computer service," courts have not addressed the term's scope and applicability to the Internet or instances of cyberstalking that cause "substantial emotional distress."

In addition, 18 U.S.C. § 875 makes it a crime, punishable by up to five years' imprisonment, to transmit any communication in interstate or foreign commerce containing a threat to injure another person. Section 875(c) generally applies to any communication actually transmitted in interstate or foreign commerce. This statute has been used primarily against threats conveyed via telephone. However, the law has been expanded to prosecute cyberstalkers. For example, in United States v. Kammersell , the court found that the term "transmits in interstate commerce," as it applied to the offense of making threatening communication, encompassed the alleged conduct of sending a threatening message via the Internet, despite the fact that the defendant and victim resided in the same state. The message had been sent from the defendant's computer in Riverdale, Utah, processed through the ISP's message server in Virginia, and then transferred to the victim's computer in downtown Ogden, Utah, a few miles from the defendant's computer.

Thus, 18 U.S.C. § 875 has been expanded to cover threats transmitted via the Internet. However, a threat must be one that a reasonable person would take as a serious expression of an intention to inflict bodily harm and would perceive such expression as communicated to effect some change or achieve some goal through intimidation. In United States v. Alkhavaz , the court found that electronic mail messages between the defendant and another individual, expressing sexual interest in violence against third-party women and girls, did not constitute "communications containing a threat." Instead, the court concluded the communications were "attempts to foster a friendship based on shared sexual fantasies."

One could argue that one of the limitations of 18 U.S.C. § 875(c) is its inapplicability to a situation where an individual engages in a pattern of conduct intended to "harass" or "annoy" another (absent some threat). Also, it is unclear whether this statute would apply to a situation in which a person harasses another by posting messages on a "public" bulletin board or in a chat room, encouraging others to harass or annoy the individual. It would appear that in some of these situations, a defendant may be prosecuted under the federal telephone harassment statute, 47 U.S.C. § 223.

Cyberharassment

While cyberstalking laws exist at both the federal and state levels, they are generally inapplicable in situations referred to as cyberharassment and/or cyberbullying, depending upon the jurisdiction.

Federal Telephone Harassment Statute38

Under federal law, some instances of cyberharassment may be prosecuted under 47 U.S.C. § 223, which carries a punishment of a fine and/or imprisonment. One provision of this statute makes it a crime, punishable by up to two years in prison, to use a telephone or telecommunications device to "annoy, abuse, harass, or threaten" any person at a dialed number. In 2006, Congress expanded the definition of "telecommunications device" to include e-mail communications. However, the statute still requires that a perpetrator remain anonymous. Although this statute covers both threats and harassment, it applies only to direct communication between a perpetrator and a victim. As such, it would be inapplicable in a situation where a person harasses another person by posting messages on a "public" bulletin board or in a chat room encouraging others to "harass" or "annoy" another individual. In addition, it is worth noting that although the statute has been found constitutional, that determination was made before the statute was amended. In United States v. Bowker , the defendant made more than 100 anonymous phone calls to a television news reporter during a seven-month period. Many calls were threatening and sexual in nature. The Bowker court reasoned that § 223(a)(1)(C) was not overbroad because

[T]he focus of the telephone harassment statute is not simply annoying telephonic communications. It also prohibits abusive, threatening or harassing communications. Thus, the thrust of the statute is to prohibit communications intended to instill fear in the victim, not to provoke a discussion about political issues of the day.

The court noted that while § 223(a)(1)(C) could have unconstitutional applications, that fact does not warrant facial invalidation. The court concluded that Bowker's speech was not constitutionally protected because he called his victim "predominately, if not exclusively, for the purpose of invading her privacy and communicating express and implied threats of bodily harm." Courts have yet to address this statute as it applies to Internet "harassment."

State Cyberharassment Statutes

Examples of cyberharassment include sending threatening or harassing e-mail messages and instant messages to another individual, posting highly offensive and/or hurtful blog entries about certain individuals, or creating entire Web pages for the sole purpose of tormenting and humiliating another individual. Generally, cyberharassment differs from cyberstalking in that a credible threat is not involved. Cyberharassment statutes vary by jurisdiction. Some are incorporated in general harassment statutes, while others are separate statutes. For example, the Iowa harassment statute provides that

[a] person commits harassment when, with intent to intimidate, annoy, or alarm another person, the person does any of the following:

(1) Communicates with another by telephone, telegraph, writing or via electronic communication without a legitimate purpose and in a manner likely to cause the other person annoyance or harm ...

Virginia's "harassment by computer" statute states:

If any person, with the intent to coerce, intimidate, or harass any person, shall use a computer or computer network to communicate obscene, vulgar, profane, lewd, lascivious, or indecent language, or make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act, he shall be guilty of a Class 1 misdemeanor.

Table 1 provides a list of states that have cyberharassment statutes.

Table 3 provides the statutory language addressing cyberharassment.

Cyberbullying

Although the Internet is a relatively new medium, it is being used for an old purpose—harassment of others. Children experiment online with different personas, and may be nastier in the Internet's anonymous atmosphere than they would be in person. In addition, targeted mockery can be far more painful when it is public, permanent, and written than when muttered in passing in a school hallway. Creating defamatory or sexually explicit depictions of students and school personnel on websites are two types of student Internet speech that may constitute cyberbullying.

Cyberbullying generally refers to harassment occurring among school-aged children through the use of the Internet. Recent incidents of teen suicides appear to illustrate the harm that may be caused by cyberbullying. According to media accounts, classmates sent Vermont teenager Ryan Patrick Halligan several instant messages questioning his sexuality. In addition, the teen was threatened, taunted, and incessantly insulted online. Ultimately, Halligan committed suicide. Responding in part to the suicide, Vermont's state legislature passed an "anti-cyberbullying" law in 2004. The statute requires schools to create disciplinary policies encompassing both on- and off-campus (limited to school-sponsored activities) bullying among school children. The statute provides a broad definition of "bullying" that may be interpreted to include Internet misbehavior.

Several other states have passed legislation requiring or authorizing school districts to adopt cyberbullying policies. For example, in Arkansas, cyberbullying was added to the schools' anti-bullying policies and included in provisions for school officials to punish students for some off-campus activities "if the electronic act is directed specifically at students or school personnel and is maliciously intended for the purpose of disrupting school and has a high likelihood of succeeding in that purpose." However, it should be noted that some of these policies are limited in their application. For example, in Washington, the school district harassment prevention policies are applicable only to actions that take place "while on school grounds and during the day." In other words, some of these policies would not cover bullies from other districts or other states. In addition, adults who "harass" or "cyberbully" minors would not be covered in most instances.

In another teen suicide, the issue of an adult engaging in cyberbullying activities has caused some individuals to use the terms cyberharassment and cyberbullying interchangeably. On May 15, 2008, a federal grand jury indicted a Missouri woman for her alleged role in a MySpace hoax against a minor. The indictment alleged that the defendant created a false identity on the social network MySpace to obtain information from Megan Meier, a teenager. The indictment further alleged that this information was used to "torment, harass, humiliate, and embarrass" the juvenile. The false identity was that of a 16-year-old boy named "Josh Evans." Communications allegedly ensued between Megan and "Josh" for some time. According to media accounts, Megan took her life after receiving a cruel message from "Josh." State prosecutors declined to prosecute this "harassment" activity, noting that the woman's intent did not cross a threshold into criminal activity based on state laws governing stalking, harassment, and child endangerment.

It is important to note that the federal government did not charge the Missouri woman with harassment of Meier. Rather, the government's legal theory was based on the Computer Fraud and Abuse Act, specifically 18 U.S.C. § 1030(a)(2)(C) and (c)(2)(B)(2), which makes it a felony punishable by up to five years of imprisonment if one "intentionally accesses a computer without authorization ..., and thereby obtains ... information from any protected computer if the conduct involved an interstate ... communication" and "the offense was committed in furtherance of any ... tortious act [in this case intentional infliction of emotional distress] in violation of the ... laws ... of any State." Prosecutors alleged that the defendant violated MySpace's terms of use by using a fictitious name, thereby giving her no authority to access MySpace.

To address the problem of cyberbullying, H.R. 1966 was introduced on April 9, 2009, during the 111 th Congress. This bill would amend title 18 of the United States Code by making cyberbullying a federal crime with a punishment of up to two years of imprisonment and/or a fine. Specifically, section 3 of H.R. 1966 states that:

(a) Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.

Constitutional Concerns and Considerations

There are constitutional principles that limit the authority of all governmental entities (federal, state, and local) to enact cyberharassment and/or cyberbullying statutes, namely the First and Fourteenth Amendments.

First Amendment: Freedom of Speech

True Threats

The First Amendment declares that "Congress shall make no law ... abridging the freedom of speech." The Fourteenth Amendment's due process clause imposes the same restriction upon the states, many of whose constitutions have a comparable limitation on state legislative action. Although the First Amendment guarantees free speech, the right is not absolute. Governments impose limitations on many types of speech, including fighting words, false statements of fact, and obscene speech. Moreover, courts distinguish between constitutionally protected speech and other less socially valuable categories of speech. Other examples of unprotected speech include speech that incites others to engage in lawless behavior, constitutes true threats, or is protected by intellectual property laws. The U.S. Supreme Court has decided several cases that provide the framework in which states must act to protect the constitutionality of cyberharassment and/or cyberbullying statutes.

The Court has cited three reasons why threats of violence may be outside the First Amendment's protection: "protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur." However, in Watts v. United States , the Court held that only "true threats" are outside the amendment's scope. In Watts , the defendant attended a political rally and made the statement, "I have already received my draft classification ... I am not going. If they ever make me carry a rifle the first man I want to get in my sights is [President] L.B.J." The defendant was arrested and charged with violating 18 U.S.C. § 871(a) for "knowingly and willfully ... [making a] threat to take the life of or to inflict bodily harm upon the President of the United States." The defendant challenged his jury conviction.

The U.S. Supreme Court reversed, holding that, although the federal statute was not unconstitutionally overbroad, the defendant's statement was protected because it was not a "true threat." The Court found that the content of Watts's statement, the context in which the statement was made, and the audience's reaction to the statement were all supportive of Watts's claim that he engaged in protected "political hyperbole." The Court recognized that "true threats" should not be afforded First Amendment protection, and stated, "What is a threat must be distinguished from what is constitutionally protected speech."

Watts did not establish a bright-line test for distinguishing a true threat from protected speech. As such, lower courts have created varying tests for determining whether speech rises to the level of a true threat. The primary federal cases dealing with threat speech have arisen under 18 U.S.C. § 875, which imposes criminal sanctions on anyone who "transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another," and 18 U.S.C. § 876, which prohibits threats against the President. The main point of contention among the circuits is whether the focus of a "true threat" test should be on the speaker or the listener. Some circuits evaluate the existence of a threat by determining whether the speaker should reasonably have foreseen his words to be threatening, while others rest the determination on whether a reasonable recipient would be threatened by the statement.

For example, in Planned Parenthood v. American Coalition of Life Activists , the 9 th Circuit Court of Appeals upheld a damage award in favor of four physicians and two health clinics that had provided medical services, including abortions, to women. The plaintiffs sued under the Freedom of Access to Clinic Entrances (FACE), a federal statute that gives aggrieved persons a right of action against whomever by "threat of force ... intentionally ... intimidates any person because the person is or has been ... providing reproductive health services." The defendants had published "WANTED," "unWANTED," and "GUILTY" posters with the names, photographs, addresses, and other personal information of abortion doctors, three of whom were subsequently murdered by abortion opponents. The defendants also operated a "Nuremberg Files" website that listed approximately 200 people under the label "ABORTIONIST," with the legend: "Black font (working); Greyed-out Name (wounded); Strikethrough (fatality)." The posters and website contained no language that literally constituted a threat, but, the court found, "they connote something they do not literally say," namely "You're Wanted or You're Guilty; You'll be shot or killed," and the defendants knew that the posters had caused abortion doctors to "quit out of fear for their lives." In reaching its decision, the court concluded that a "true threat" is "a statement which, in the entire context and under all the circumstances, a reasonable person would foresee be interpreted by those to whom the statement is communicated as a serious expression of intent to inflict bodily harm upon that person."

Based upon the aforementioned constitutional framework, it is likely that cyberstalking, cyberharassment, and/or cyberbullying statutes may be deemed constitutionally deficient if the situation does not rise to the level of a "true threat" under most circumstances. This analysis may be different depending on whether the challenged language is contained in a state statute or school policy.

Freedom of Speech Within the School Context

School officials are using cyberharassment and cyberbullying policies to take disciplinary action against students, including suspensions and expulsions. When students and/or parents have challenged schools' disciplinary response to students' "offensive" expression, courts have relied on Supreme Court precedent. While students generally retain the protections of the First Amendment, these protections may not always mirror the constitutional protections afforded in other contexts. For example, in Tinker v. Des Moines Independent Community School District , the Court held that student expression may be regulated only if it would substantially disrupt school operations or interfere with the rights of others. In Tinker , students wore black armbands to school to protest the United States' involvement in Vietnam, despite knowledge that such action was in violation of school policy. The students were asked to remove the armbands, and upon their refusal were suspended until they came to school without the armbands. Thereafter, the students filed a complaint seeking to enjoin the school district from disciplining them. The district court dismissed the complaint, concluding that the school's policy against armbands was reasonable to prevent disturbance of school discipline. On appeal, the U.S. Supreme Court stated that the wearing of armbands for the purpose of expressing different viewpoints is the type of symbolic act within the protection of the First Amendment. Specifically, the Court ruled that "First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of expression at the schoolhouse gate."

The Court subsequently refined the Tinker rationale as it applies to verbal expression or "pure speech." In Bethel School District 403 v. Fraser , the Court ruled that school officials had the authority to discipline a student for violating school rules by delivering a lewd speech at a school assembly. In Fraser , a high school student gave a nominating speech on a classmate's behalf during an official school-wide assembly for student government elections. In this speech, the student used sexual innuendos. Reaction to the speech was mixed; some students yelled and simulated sexual acts, while other students and teachers were offended. The student was suspended for three days and prohibited from speaking at graduation. In deciding this case, the Court shifted focus from the students' rights articulated in Tinker , but instead emphasized the school's duty to inculcate habits and manners of civility and teach students the boundaries of socially appropriate behavior. In addition, the Court noted the importance of protecting minors from vulgar, lewd, or indecent language. As such, the Court concluded that the nomination speech had a disruptive effect on the education process, and that it was up to school officials to determine what manner of speech in the classroom or in school assembly is appropriate.

While it is undisputed that the First Amendment does not protect "offensive" speech while on school grounds, courts are less clear when the speech occurs off school premises. For example, in J.S. v. Bethlehem Area School District , an 8 th grader created a website that contained derogatory remarks regarding a math teacher and a principal. Most of the website was devoted to ridiculing the math teacher, comparing her to Adolph Hitler and making fun of her physical appearance. In addition, the site contained a solicitation for contributions to pay for a "hit man." School officials subsequently expelled the student, citing the extreme emotional distress suffered by the math teacher and the disruption the website caused at the school. The student argued that his website was protected speech.

In reviewing the case, the Pennsylvania Supreme Court decided two issues: (1) whether the student's speech constituted a true threat; and (2) whether the Tinker and Fraser standards permit a school district to discipline a student for off-campus speech. In addressing the "true threat" issue, the court determined that, although the website was in extremely poor taste, it was not a "true threat." Specifically, the court stated that "[w]e believe that the [w]ebsite, taken as a whole, was a sophomoric, crude, highly offensive and perhaps misguided attempt at humor or parody. However, it did not reflect a serious expression of intent to inflict harm," as the site focused primarily on the teacher's physical appearance, utilizing cartoons, hand drawings, and a reference to Adolph Hitler.

The court then addressed whether First Amendment jurisprudence permitted the school to discipline a student for off-campus speech. It dismissed the argument that the website was off-campus speech beyond the school's jurisdiction. Specifically, the court stated that "[w]e find there is a sufficient nexus between the [w]ebsite and the school campus to consider the speech as occurring on-campus." The court made this determination because the student had accessed the site at school, showed it to a fellow student, and informed other students about the site. The court then reasoned that school officials could punish the student under the Tinker or Fraser standard —under the Fraser standard because the speech on the website was vulgar and highly offensive, and under the Tinker standard inasmuch as the website caused a substantial disruption of school activities.

Similarly, in Wisniewski v. Board of Ed. , the court affirmed the school district's suspension of an 8 th grade student who had disseminated to friends an instant message icon showing a pistol firing a bullet at his English teacher, accompanied by the words, "Kill Mr. Van der Molen." The student created the icon a couple of weeks after his class had been informed of a zero-tolerance policy regarding threats. The student also sent messages with the "objectionable" icon to approximately 15 other students, but not to any school personnel. Another student informed and provided the English teacher with a copy of the icon. The English teacher forwarded the information to the high school and middle school principals, as well as to law enforcement personnel. The student accepted responsibility for the icon's creation and was subsequently suspended for five days. The student was allowed to return to school pending a superintendent's hearing. The English teacher requested and was allowed a class reassignment. A police investigator as well as a psychologist determined that the student intended the icon to be a joke and not a threat toward the English teacher. However, a hearing officer found the determination unpersuasive and irrelevant. She concluded that the student had engaged "in the act of sending a threatening message to his buddies, the subject of which was a teacher." In addition, she concluded that his action had disrupted school operations by "requiring special attention from school officials, replacement of the threatened teacher, and interviewing pupils during class time." The student was subsequently suspended for a semester.

The student's parents filed suit against the school board and the superintendent, seeking damages under 42 U.S.C. § 1983, claiming that the student's icon was protected speech under the First Amendment and not a true threat. The district court dismissed the claim. The appellate court declined to address whether the icon was a true threat. Instead, the court applied the Tinker standard and concluded that even though the icon's creation and transmission had occurred off campus, it was reasonably foreseeable that school officials would find out about the icon and that it would "materially and substantially disrupt the work and discipline of the school." Thus, the appellate court concluded that the First Amendment claim had been properly dismissed.

However, in Beussink v. Woodland R-IV School District , a U.S. district court held that the plaintiff had demonstrated the likelihood of success of his First Amendment claim. In this case, a high school student was suspended for the contents of a website that contained vulgar criticism directed toward school officials. The student had created the website at home on his personal computer without using school facilities or resources. However, one of the student's friends became angry with him, accessed the website at school and showed it to the school's computer science teacher. The teacher informed the principal about the site. Immediately after viewing the site, the principal suspended the student. Due to the school's policy regarding absenteeism, the suspension resulted in the student failing all his classes. In reviewing the student's suspension, the court determined that the evidence presented did not establish that Beussink had been disciplined because of the fear of disruption or interference with school discipline, but rather because the principal had been upset by the website's content. Thus, the court concluded that the website did not materially and substantially interfere with school discipline, as Tinker requires. As such, the court granted a preliminary injunction against the school district.

In Layshock v. Hermitage School District , the court held that a student's speech right had been violated when the school district failed to demonstrate a nexus between the student's parody of the principal and a substantial disruption of the school environment. The student created the "parody profile" of his principal on MySpace by using his grandmother's home computer. This parody profile displayed the principal's picture, which Layshock had copied from the school's website. The template for the profile allowed users to fill in background information and include answers to specific questions. The student answered the questions with what were alleged to be objectionable answers. For example, in response to a question regarding alcohol use, the profile read "big keg behind my desk." The profile also referred to the principal as a "big steroid freak" and reflected that the principal was "too drunk to remember" his birthday. The principal subsequently discovered another parody profile created by another student. Apparently, there were at least three parody profiles.

Evidence was presented that indicated that other students had viewed Layshock's parody profile during school hours. In an attempt to curtail the creation of parody profiles, the school officials sought to block students' access to MySpace. The principal contacted MySpace directly, and succeeded in having the profiles disabled. Students joked and talked about the parody profiles while in school. Teachers interviewed students to determine the profiles' creator or creators. When asked, Layshock admitted to creating one profile. Layshock was informed that he was being considered for disciplinary action for "Disruption of the normal school process: Disrespect: Harassment of a school administrator via a computer/internet with remarks that have demeaning implications: Gross misbehavior: Obscene, vulgar and profane language." At a subsequent hearing, the student received a 10-day out-of-school suspension. Additional discipline included banning him from attending or participating in any events sponsored by the school district, and prohibiting him from participating in the high school graduation ceremony.

The court concluded that there were several gaps in the causation link between the student's off-campus conduct and any material and substantial disruption of school operations. The school district failed to demonstrate which parody profile caused the alleged disruption, as there were three other profiles available on MySpace during the same time frame. In addition, the court noted that the school district had failed to demonstrate that the alleged disruption was due to Layshock's parody and not the administrators' reactions. Furthermore, the court determined that the actual disruption had been rather minimal, as "no classes were cancelled, no widespread disorder occurred, there was no violence or student disciplinary action." As such, the court concluded that the school administrator lacked the authority to punish Layshock for his off-campus creation of the parody profile.

Fourteenth Amendment: Due Process

Another constitutional constraint on legislators and school administrators when drafting legislation or school policies aimed at curtailing "cyberharassment" and/or "cyberbullying" is the Fourteenth Amendment. Its provisions are as follows:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Fourteenth Amendment's due process clause includes two distinct aspects: substantive due process and procedural due process. Procedural due process, based on principles of "fundamental fairness," addresses which legal procedures are required to be followed in state proceedings. Relevant issues include notice, opportunity for hearing, confrontation and cross-examination, discovery, basis of decision, and availability of counsel.

Criminal statutes that lack sufficient definiteness or specificity may be held "void for vagueness." Under this doctrine, a governmental regulation or statute may be declared void if it fails to give a person adequate warning that his or her conduct is prohibited or if it fails to set out adequate standards to prevent arbitrary and/or discriminatory enforcement. In Grayned v. City of Rockford , the U.S. Supreme Court stated that

[v]ague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warnings. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.

A statute may be so vague or threatening to constitutionally protected activity that it can be pronounced facially unconstitutional. For example, in Papachristou v. City of Jacksonville , a unanimous Court struck down as facially invalid a vagrancy ordinance that punished

dissolute persons who go about begging, ... common night walkers, ... common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, ... persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children.

The Court found the statute facially invalid, as it failed to provide fair notice or require specific intent to commit an unlawful act. The Court concluded that the statute permitted arbitrary and erratic arrests and convictions, provided police officers too much discretion, and criminalized activities that are normally innocent.

A Texas appellate court applied the aforementioned principles in finding a state harassment statute unconstitutional. In Karenev v. Texas , the Court of Appeals of Texas held that a state harassment statute that criminalized the sending of repeated "electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another" was unconstitutionally vague, and thus the statute was void. As such, the appellate court reversed the court's judgment and rendered judgment of acquittal. In this case, the defendant, after moving out of the marital residence, sent his estranged wife (Elena) a series of e-mail messages, all written in Bulgarian. In some of these messages, as translated, the defendant predicted his wife's future and stated that "he would raise their child, Elena's mother would be paralyzed, and Elena would be in either a mental hospital or prison." In another e-mail, the defendant called Elena "not even a regular slut ..., something much scarier," "a pathological li[ar], a dirty whore, a filthy thief, a rotten user, a sick nymphomaniac, a mental case, and a devil's work." He also told her, "It is about time to pay for all of your filthy deeds which you have committed during your pathetic life!" At trial, the defendant testified that during his travels to Bulgaria he had run into fortunetellers who asked him to relay the messages to Elena regarding her future. Presumably, these were fortunetellers Elena had relied on previously. A jury subsequently convicted the defendant on one count of harassment. The defendant challenged the constitutionality of the harassment statute.

The statute, as previously noted, stated in part that a person commits harassment "if with intent to harass, annoy, alarm, abuse, torment, or embarrass another he sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another." The court, relying on precedent, found that the portions of the harassment statute establishing as an offense the sending of electronic communications that "annoy or alarm" are unconstitutionally vague. Also, the court noted that the terms "harass," "abuse," "torment," and "embarrass" are "susceptible to uncertainties of meaning." In addition, the court determined that the statute fails to "establish a clear standard for whose sensibilities must be offended."

The aforementioned principles are also applicable in the school setting. For example, in Flaherty v. Keystone Oaks School District , the court held that the breadth of student handbook policies pertaining to discipline and technology were overreaching, thus violating students' free speech rights. In addition, the court held that the policies were unconstitutionally vague in definition and as applied. In this case, the student was disciplined for posting Internet messages on a message board devoted to high school volleyball in western Pennsylvania. The site was not sponsored or affiliated with the school district. One of the messages stated that one of the opposing players' mothers was a "bad teacher." When school administrators were informed of the postings, the student faced disciplinary action.

In granting summary judgment, the court found the school policies overbroad for several reasons. First, the polices were not referred to or incorporated in the student handbook. In addition, the policy "authorizes discipline where a student's expression that is abusive, offending, harassing, or inappropriate, interferes with the educational program of the schools." The court concluded that the policy did not comply with the Tinker requirement that such discipline should be reserved for those circumstances that cause a substantial disruption to school operations.

The court noted that even if it did not find the policy overbroad, it would find the student handbook policies unconstitutionally vague, as the terms "abuse, offend, harassment, and inappropriate" were not defined in any significant manner. In addition, the court found the policies not only vague in definition but also in application. The court noted that school personnel had varying interpretations of the policies. As such, the court concluded that the policies were vague enough to result in arbitrary enforcement. Therefore, the court concluded that the student handbook policies did not provide the student with adequate warning of proscribed conduct.

Conclusion

With the proliferation of potential uses and abuses of the Internet, the crime of Internet harassment presents challenges for law enforcement personnel, legislators, educators, and parents. These challenges are exacerbated by a lack of uniformity in defining the terms cyberharassment and cyberbullying. In addition, jurisdictional limits and the anonymity of the Internet sometimes make it difficult for law enforcement personnel to identify, locate, arrest, and prosecute alleged offenders. While states generally assert jurisdiction over law enforcement authority within their borders, Congress may legislate, pursuant to the Commerce Clause, Internet activities. Or Congress may elect to adopt a wait-and-see approach, monitoring state Internet harassment-related activities and the types of behavior prosecuted.

Legislators and school administrators continue to grapple with ways of combating cyberbullying, in light of recent high-profile teen suicides, while maintaining the free flow of information and opinion on the Internet. As Internet harassment may cause its victims emotional harm as opposed to physical harm, legislators must determine what level, if any, of harassment should be criminalized. While traditional harassment statutes may provide some guidance in drafting legislation and/or school policies, it is important to differentiate between the one-to-one communication of a telephone or e-mail communication and the one-to-many communication of a posting on a public website.

In drafting legislation or school policies, legislators and school administrators must consider the constitutional constraints of the First and Fourteenth Amendments. Statutes and school policies must be narrow enough not to infringe upon protected speech. In addition, such restrictions must provide adequate notice of what activities constitute Internet harassment. While school administrators arguably have more leeway in adopting Internet harassment policies, they are still generally limited to restricting speech that substantially or materially disrupts the educational process. To facilitate this goal, it may be desirable for legislation and school policies to include definitions for all relevant terms such as "annoy," "harass," "repeated communication," "alarm," or "torment," as these may be too vague or subjective, which may lead to an inordinate amount of prosecutorial discretion.