By Michael Meyerson
8:00 AM EDT, April 21, 2013
Cellphones and the Internet have not only altered the way we communicate, they have changed the way we can injure one another. The telecommunications revolution has created the capability of causing far greater harm to children than the bullying many of us remember from when we were young. The omnipresent nature of the Internet means that there is no place for the child who is victimized to hide. Not even one's home is a safe haven when repeated, vicious attacks appear on Facebook and Twitter.
In April 2012, a Howard County high school student, 15-year old Grace McComas, took her own life after enduring almost a year of cruel, unrelenting electronic torment. That tragedy served as a catalyst for those who recognize that the dangers posed by new communications technology require a new approach if we want to protect our children.
In our quest to prevent electronic assaults on children, however, it is critical that the timeless importance of freedom of speech be fully protected. Any attempt to prevent cyberbullying must ensure that the Internet remains free for full and unfettered public discussion.
Fortunately, it is possible to find a balance. Both houses of the Maryland legislature have passed, and sent to Gov. Martin O'Malley, a bill crafted to respect First Amendment principles while ensuring that parents will finally be able to protect their children. Appropriately named "Grace's Law," this bill, if signed, would prohibit anyone from repeatedly using electronic communications to threaten a minor with death or serious injury. It would also prohibit someone from repeatedly and maliciously using electronic communications to inflict serious emotional distress on a minor.
The Supreme Court has repeatedly held that threats of violence, such as those banned by Grace's Law, are outside the protection of the First Amendment. So called "true threats," in which a speaker communicates a serious expression of an intent to commit an act of violence against a particular individual, are simply not a part of the American marketplace of ideas. Intimidation, defined as directing a threat against others with the intent of placing them in fear of their life or safety, is viewed as abusive conduct and is also not shielded by the First Amendment.
Unlike "true threats," some speech that causes serious emotional distress has been found to be constitutionally protected. In 1988, the Supreme Court ruled that Hustler magazine could not be sued for a crude and nasty parody it had published of television evangelist Reverend Jerry Falwell. The court stated that in order for debate on public issues to be uninhibited, people who thrust themselves into the public limelight must be willing to subject themselves to "vehement, caustic, and sometimes unpleasantly sharp attacks."
In 2011, the court extended this protection for abusive speech to the Westboro Baptist Church, which had publicized its opposition to allowing homosexuals to serve in the military by picketing at the funeral of Matthew Snyder, a soldier from Carroll County (who was straight) who had was killed in Iraq while on active duty. The church members carried signs that read "Thank God for Dead Soldiers" and "God Hates You." Despite the predictable emotional harm caused to Matthew's parents, the Supreme Court ruled that the pickets were protected by the First Amendment because they were part of a bona fide discussion of a matter of public concern.
The court recognized, though, that speech of a private matter concerning private individuals should be treated differently than the Westboro pickets and the Hustler advertisement. Protecting purely private people from the injuries caused by purely private speech, the court said, poses "no threat to the free and robust debate of public issues" and creates "no potential interference with a meaningful dialogue of ideas."
"Grace's Law" does not prevent or penalize the public discussion of matters of public concern. Its scope is limited to minors, the most vulnerable segment of our population. It has long been understood that laws protecting children should be viewed with special solicitude. Moreover, the law would not penalize the random comment or even the occasional insult that is a part of daily life. Rather, the law's coverage is limited to those who deliberately engage in an ongoing course of conduct that is motivated by a proven desire to cause a child to suffer serious emotional distress.
Grace's Law is an important step in providing needed protection for the children of our state, while respecting and protecting the First Amendment rights of Maryland citizens.
Michael I. Meyerson is the Wilson H. Elkins Professor of Law and Piper & Marbury Faculty Fellow at the University of Baltimore School of Law. His most recent book is "Endowed by Our Creator: The Birth of Religious Freedom in America." His email is firstname.lastname@example.org.
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