An eighth grade student recently requested to interview me as part of a research project on how the First Amendment affects protection against cyber bullying. I find it commendable that she is tackling an issue that is challenging even to seasoned attorneys and policy makers, and I think others may find our interview interesting and educational. Cyber bullying is an emerging issue among teenagers, and I think she did a very good job of examining the constitutional side of this issue.
Here is the transcript, redacted to protect her privacy:
Q: Hello, my name is [Student] and I am an eighth grader at [School]. I have a very important research project called Proteus. My question for the project is, “Should there be a limit to Freedom of Speech online? Are Internet Trolls misinterpreting the First Amendment?” I came across your name and job title during my research. I was hoping to be able to interview you and find out more about your studies of the First Amendment and online harassment.
A: Sure, fire away.
Q: What exactly do you believe the First Amendment states? Do you think it gives Internet Trolls a right to say anything they want online?
A: The Free Speech clause of the First Amendment states: “Congress shall make no law…abridging the freedom of speech.” This is very vague, and the historical record shows that even the Founders didn’t completely agree on what it means. Some took the very limited view that it only prevents the government from censoring material ahead of time, but it could potentially punish people for their viewpoints. The Alien and Sedition Acts of 1798 are an example of this limited viewpoint.
However, the Supreme Court and society in general have concluded that the First Amendment broadly protects our right to free speech and expression. The idea is that free speech is a primary societal value, and speech is presumed to be lawful unless it falls within a few narrow exceptions. For example, we can be sued for defamation if we make untrue factual statements that harm other people; the government can set reasonable rules for the time, place, and manner of public demonstrations; and the words a perpetrator utters while committing a violent act can elevate it to a hate crime.
The potential free speech exception applicable to cyber bullying is harassment. Simply stated, we are free to express our opinion, but we cannot threaten, stalk, or otherwise systematically harass others. Think of it as the “tap-out” rule: we can tell others what we think, but once it escalates to systematically harassing someone who simply wants to be left alone, and especially if the person feels threatened, then it rises to the level of harassment. When this happens, courts can order a restraining order that prohibits the perpetrator from engaging in this sort of conduct, and violation of the order can result in arrest.
These same principles apply to online conduct. Internet users can be sued for defamation or slapped with a restraining order for harassment. Free speech does not protect websites that facilitate illegal services, such as drugs and prostitution.
The states are developing different laws in response to cyberbullying. California has made it a crime to post someone’s personal information online with the intent to make that person fear for his or her safety, or to maliciously impersonate someone online. Public school students who transmit nude or harassing photos may now face expulsion.
Q: How exactly are Internet Trolls being legally protected by the First Amendment?
A: The First Amendment protects our online speech in the same general manner as our offline speech. Online speech is protected unless it can be proven to fall under narrow exceptions, such as threat, harassment, and defamation. As a practical matter, the ability to post with superficial anonymity offers obnoxious Internet users an additional layer of protection. Everything that happens on the Internet can be traced back to its source, so nothing online is truly anonymous, but this process can be difficult. It relies on the the cooperation of third parties, such as the site where the abusive conduct occurred (like Yelp or Facebook) and the user’s Internet service provider. These companies tend to be very protective of their users’ privacy, so they typically require a court order before providing this information. This requires a substantial burden of proof and expense in civil cases, and law enforcement is often reluctant to pursue this in criminal cases.
Q: Okay, thank you, that makes sense. Do you think it’s possible to have the First Amendment rewritten so Internet Trolls won’t have as much freedom? What would be the negative impacts of that? Do you believe there would be more benefits or problems caused by censoring speech online?
A: Amending the Constitution is extremely difficult. An amendment generally needs to be proposed by a 2/3 vote of both the House of Representatives and the Senate, and then approved by 3/4 of the states. It’s unlikely to get that many people to agree on virtually anything, so that probably won’t happen.
I also don’t think the First Amendment needs to be amended because we already have laws protecting us from harassment, threats, and defamation. Law enforcement prefers to use its limited resources investigating other crimes, so it probably makes more sense for schools to take the lead in cyber bullying among minors, as we’re seeing in California.
The First Amendment reflects that free speech is one of our primary principles. Free and open discourse is essential to preserving a free society. We already have safety-minded exceptions to prohibit speech that constitutes threats or harassment, and going any further risks criminalizing speech simply because some people do not like it. The Constitution exists to protect individual rights against a majority that could restrict those rights, and the Free Speech clause in particular protects unpopular opinions.
Wandering toward censorship creates a number of issues. Who is in charge of the censorship? What standards will be used? What will be the recourse for those wrongfully censored? Won’t this sort of oversight chill speech in general? These are serious issues, and it’s better for a free society to err on the side of protecting those who engage in abusive speech than to risk criminalizing or deterring non-abusive speech.
Q: Do you think the First Amendment has done more harm than good?
A: No absolutely not, I think that the First Amendment is vital to our free society. We live in a republic where we rely on the free flow of ideas, we need to communicate those ideas. We need to be free to petition our elected officials and try and advance those ideas and keep everyone accountable. So I think having protection of those communications is absolutely critical. It sounds like one of the merging concerns is the notion of cyberbullying where people can essentially abuse the legal rights we’ve given them. Ultimately I think it really falls under the idea that free speech and communication is a primary principle in our society. I think that ultimately we would rather risk some of the bad things that go along with it rather than lose all of the really important things that come with it.
Q: Okay, thank you. Should Internet Trolls be treated like criminals and have the same punishments?
A: Well, I think that a really important thing is to define what Internet Trolls are. I’m familiar with the term somewhat but I associate it with people just making stupid comments on Twitter, Yelp, or Facebook. People that are really doing some hurtful things like impersonating people in malicious ways in terms of defamation are a different case. Would you mind explaining Internet Trolls for this purpose?
Q: Sure, I was thinking of Internet Trolls as people who would target a certain person online. They are the people that would continue to harass someone through social media. I was focusing also on the times where the Internet Trolls have led their victims to suicide or just really emotionally abusing them.
A: Okay, I’m not sure if they should be criminalized. Well let’s put it this way, whenever we were asked a question in law school, typically the right answer was: it depends. I think that is a perfect response to this. Let’s say I was online and I go on Facebook and just post a comment saying, “You’re dumb.” Should I be criminalized? No. I don’t think so. Now hypothetically, say that someone I know and have reason to believe is emotionally unstable. I’ll say that maybe they’re dealing with a mental disorder or illness and that they are going through a rough patch. Let’s say I know exactly the thing that would trigger that person and then hypothetically I just really want to say something extremely hurtful to that person and then I just dive head first into something like that. Then that person hurts themselves or worse. At that point I think there is a very good argument that you have committed a crime and certainly can be sued for it. Ultimately at that point it’s like pushing someone off a bridge or when someone is standing on a bridge saying, “You know what, yeah you should jump.” It goes from just being mean, which isn’t really criminal, to just maliciously encouraging someone at risk to hurt themselves. That’s really where the dividing line is.