Laurie L. Levenson is a professor of law and the David W. Burcham Chair in Ethical Advocacy at Loyola Law School, Los Angeles. is a professor of law at Loyola Law School in Los Angeles.
Cyberbullying is growing and our legal system does not seem ready for it. With legitimate concerns about the First Amendment on one side, and equally legitimate concerns about the dangers of such conduct on the other, prosecutors are often left to shoehorn this new wave of behavior into laws created long before there was an Internet.
While cyberbullying may motivate a victim to commit suicide, it is only in the rarest case that the bully will be deemed the cause.
Because it is difficult to draft a law that allows the full range of free speech, but also serves to deter the type of behavior recently in the news, the government is left to use statutes that don’t quite fit, like false statements to Internet service providers or invasion of privacy or civil rights violations. All of these are weak substitutes for crimes that really involve psychological warfare.
Before the public turns to the judicial system for solutions, there are a few things to consider. It is really hard to hold someone responsible for another person’s suicide. The law assumes that each individual, including a victim, acts with free will. Thus, while cyberbullying may motivate a victim to take his or her life, when it comes to convicting someone of a homicide, it is only in the rarest case that the bully will be deemed to be the cause of the victim’s death.
Second, the criminal justice system is a poor substitute for what really needs to be done. Cyberbullying is classic anti-social behavior. Whether people act in a cruel and callous manner is something we learn early in life. Some schools are now adding curricular lessons on responsible use of the Internet. Every school should be doing this. We need to teach that online bullying is just as and possibly more destructive than tormenting a victim in person.
Finally, people should be told how to protect themselves. When terrorism threats against our nation seemed acute, there were constant messages on how to protect against those threats. Similar public awareness lessons are needed now. The Internet should come with one big warning sign – "Beware, you are exposing yourself to people who do not have your best interest in mind."
Dealing with new technology is always a challenge. We should look for answers on all fronts. Laws may need to be reevaluated to determine whether there should be specific crimes against cyberharassment, but prohibiting mean words and cybergossip will never pass constitutional muster. The solution lies in updating both our laws and our behavior.