I. Introduction
Megan Meier, a thirteen-year-old girl, hanged herself the same day that she received an e-mail message stating, “[T]he world would be a better place without you.”[1] The message came from her MySpace crush, who ultimately turned out to be a fictional character created by the mother of one of Megan’s former friends.[2] Tyler Clementi, an eighteen-year-old college freshman, posted on Facebook, “Jumping off the [George Washington] bridge sorry” before jumping to his death.[3] He committed suicide following an incident where he was ridiculed online after his roommate secretly recorded and posted Tyler’s sexual encounter with another man on the internet.[4]
Hope Witsell, another thirteen-year-old girl, hanged herself after being tormented in school hallways and on hate pages titled the “Shields Middle School Burn Book” and “Hope Hater Page.”[5] Her torment stemmed from a topless photo that she sent to her boyfriend, which eventually got into the hands of students across six different schools in the area.[6] Ryan Halligan, a thirteen-year-old boy, hanged himself a few weeks after messaging a classmate, “It’s girls like you who make me want to kill myself.”[7] A girl at his school had misled him into believing that he had prospects with her, but she subsequently revealed personal information about him to the school.[8] Amanda Todd, a fifteen-year-old girl, took her own life after posting a viral YouTube video using written words on notecards to describe the bullying that she endured after a stranger shared her topless photo on the internet.[9] In the video, Amanda describes a previous suicide attempt, and in the aftermath, people encouraged her to try harder by saying, “I hope she dies this time and isn’t so stupid.”[10] Megan, Tyler, Hope, Ryan, and Amanda are just a few of the many victims claimed every year by cyberbullying.
Suicide is the second-leading cause of death among people aged ten to fourteen and twenty-five to thirty-four in the United States.[11] With nearly 95% of all teenagers in the United States having access to smartphones, cyberbullying has flourished.[12] This growing trend in cyberbullying has caused cyberbullying victims to be nearly two times more likely to have attempted suicide than those not involved in cyberbullying.[13] Given these startling statistics and the continued prevalence of cyberbullying in the United States,[14] legislatures must act. There is a desperate need for stricter criminal laws, and the implementation of a federal law, to deter cyberbullying and prevent the many deaths such as those of Megan, Tyler, Hope, Ryan, and Amanda.
Part II begins this Note by discussing cyberbullying contrasted with traditional bullying, the definition of cyberbullying, and the evolution of cyberbullying laws. Part III examines the current status of state criminal cyberbullying laws in the United States. Part IV argues for implementing a federal criminal cyberbullying law. Finally, Part V concludes by reflecting on the inconsistencies among the state laws and the need for change.
II. Cyberbullying, Generally
Before delving into the impact of specific criminal cyberbullying laws enacted across the United States, it is important to understand what constitutes cyberbullying. Section II.A describes the unique nature of cyberbullying by evaluating how it differs from traditional bullying. Section II.B provides the generally recognized definition of cyberbullying. Lastly, Section II.C examines the evolution of cyberbullying laws in the United States.
A. Cyberbullying Contrasted from Traditional Bullying
Although bullying has arguably existed for hundreds of years, more recent technological advances have revolutionized the powers that a bully possesses.[15] There are six key characteristics of cyberbullying that distinguish it from traditional bullying: (1) persistence; (2) wide audience reach; (3) anonymity; (4) limited detectability; (5) potential harm; and (6) permanency.[16] For example, because traditional bullying typically occurred during school hours and on school property, victims were usually protected from the torment while inside their own homes.[17] However, cyberbullying is unique because it extends outside school walls.[18] Through electronic communication, bullies can reach their victims twenty-four hours a day, seven days a week, from any location, providing victims essentially no escape.[19] In the same vein, cyberbullies can reach their victims through multiple different mediums.[20] This ability to persistently target an infinite audience points to the potentially more harmful effects of cyberbullying compared to those of traditional bullying.[21]
Further, perpetrators can anonymously hide behind the screens of their electronic devices, making it challenging to discover their identities and easier for them to bully victims without repercussion.[22] Given the anonymous, remote nature of cyberbullying, bullies are distanced from seeing their victims’ real pain.[23] Along with the world of technology expanding the potential audience reach, cyberbullying now has the ability to spread like wildfire, leaving a permanent mark online.[24] Simply put, once someone shares something on the internet, it is available to everyone,[25] and it becomes nearly impossible for the victim to take any control over the situation or put a halt to the rumors or sensitive personal information shared about them.[26]
Although cyberbullying does not involve physical harm, the emotional abuse felt by these victims is substantial due to these unique characteristics.[27] However, these unique characteristics result in varying definitions of what precisely constitutes cyberbullying.[28] Therefore, before analyzing the laws implemented to combat cyberbullying, a clear definition of cyberbullying must be established.
B. Defining Cyberbullying
The term “cyberbullying” was first coined in 1999, yet the American legal system lacks any general consensus on a single definition.[29] Nevertheless, all definitions seem to encompass an aspect of electronic communication and an element of bullying or “willful and repeated harm.”[30] Despite this, there is currently no federal law to address cyberbullying or help guide the formulation of a uniform definition among the states.[31] Although not legally binding, a federal government website managed by the United States Department of Health and Human Services (U.S. Department of Health) defines cyberbullying as “bullying that takes place over digital devices,” including “sending, posting, or sharing negative, harmful, false, or mean content about someone else” or “sharing personal or private information about someone else causing embarrassment or humiliation.”[32] Going forward, this Note will utilize the U.S. Department of Health’s definition when describing cyberbullying generally, however Part III of this Note will consider more specific definitions for criminal sanctions of cyberbullying across the United States.
C. The Evolution of Cyberbullying Laws
Following the tragic deaths of cyberbullying suicide victims, there is typically a push for legislation by the victim’s loved ones.[33] For example, take the story of sixteen-year-old David Molak from San Antonio, Texas. One of David’s cyberbullies posted a photo on Instagram with David’s girlfriend and subsequently tagged David, stating he would “steal [his] girl.”[34] In the aftermath of this post, hateful cyberbullying sparked against David.[35] David received comments criticizing his appearance, such as “[David] Molak’s an ape,” “the monkey looking human gets his woman stolen,” and other taunts such as, “put [him in a] coffin” and “put [him] 6 feet under.”[36] Shortly after the cyberbullying in 2016, David’s mother found him hanging from a tree in the family’s backyard.[37] His mother stated that David “was so distraught . . . [that] [h]e said he could never go back to school . . . [because] everyone hated him.”[38] David’s father stated that David “felt so low and scared” that “he couldn’t take it anymore.”[39] After David’s suicide, his family did everything in their power to “help children, parents, and school administrators in preventing another tragedy.”[40]
After his death, David’s family formed the David’s Legacy Foundation, “a nonprofit organization dedicated to ending cyber-assisted bullying by educating communities about the harmful effects of cyber abuse, providing support for victims, promoting kindness, and supporting legislation that prohibits cyberbullying of minors.”[41] In support of the family’s efforts, Texas passed Senate Bill 179 in 2017, referred to as “David’s Law,” which widely expanded protections for victims of cyberbullying.[42] David’s Law amended current laws in three critical areas: it (1) altered the education code; (2) added a civil relief option; and (3) broadened the criminal harassment statute to include electronic communications.[43]
As a result, David’s Law amended the Texas Education Code (Code) “to better define and encompass cyberbullying.”[44] For example, the Code now “provides for anonymous reporting for students” and faculty members and includes off-campus incidents, disciplinary placements or expulsion for bullies, and mental health services for victims.[45] Additionally, David’s Law created the option of a civil remedy for cyberbullying victims to seek injunctive relief against the cyberbully and potentially against the cyberbully’s parents.[46] Lastly, David’s Law amended the Texas Penal Code’s Harassment Statute to include electronic communication and methods of harassment.[47]
This evolution of David’s Law mirrors the development of cyberbullying laws in many other states, often sparked by the death of a child, and the revisions are typically named after suicide and cyberbullying victims like David. Today, bullying laws in America can be broken down into five categories:[48] (1) those that include cyberbullying or online harassment within the definition of the law;[49] (2) criminal sanctions for cyberbullying;[50] (3) school sanctions for cyberbullying;[51] (4) school policies against cyberbullying;[52] and (5) school policies against cyberbullying that include off-campus conduct.[53] Although it is apparent that the vast majority of the states have taken action to combat cyberbullying, this Note will focus on the second category of cyberbullying laws: the criminalization of cyberbullying. In other words, this Note will delve into the current legal landscape, benefits, and drawbacks surrounding state criminal sanctions for cyberbullying.
III. Current Status of Criminal Cyberbullying Laws in the United States
Despite federal law lacking a statute criminalizing cyberbullying, states have decided to take action.[54] With nearly all states implementing a law to potentially criminalize cyberbullying, our nation has made great strides in addressing and penalizing this relatively “new” crime.[55] However, without guidance from the federal government, the variation among state laws will persist.[56]
A. Lacking Federal Laws
Although cyberbullying cases can overlap with federal discriminatory harassment statutes, no federal law directly criminalizes or defines cyberbullying.[57] However, the absence of a federal law criminalizing cyberbullying does not exist for lack of trying. In fact, politicians have attempted to propose a cyberbullying-focused federal criminal law.[58] For example, in 2008, Congresswoman Linda T. Sánchez of California introduced the Megan Meier Cyberbullying Prevention Act (Act).[59] The Act would amend Chapter 41 of Title 18 of the U.S. Code to include a definition of cyberbullying and impose a fine and/or imprisonment of not more than two years for offenders.[60] Congresswoman Sánchez introduced the Act on May 22, 2008; however, it did not pass.[61] Without any federal guidance on defining or criminalizing cyberbullying, states are often left to resolve this issue amongst themselves, resulting in a wide range of different penalties.[62]
B. Inconsistency Among the States
To illustrate the wide disparity of criminal cyberbullying laws among the states, it is helpful to place the states into different categories. As Sections III.B.1–2 demonstrate, one way to categorize the states is by the potential punishment range for cyberbullying. Given that states can have slightly different definitions of cyberbullying, looking at the punishment range provides a simplistic way to compare these statutes.
1. Categories of Criminalization.
The forty-nine states with statutes that potentially criminalize cyberbullying can be divided into three categories: (1) least strict; (2) moderately strict; and (3) most strict.[63] As Section III.B.2 will discuss, the categories are differentiated by the punishment range and ability for punishment enhancements. The breakdown of each state and its corresponding category is demonstrated below in Table 1.[64]
2. The Punishment Range.
To categorize cyberbullying laws according to their strictness level, their potential punishment range must be examined.[65] This examination involves considering two factors: (1) the base level of punishment prescribed by the statute; and (2) the possibility for punishment enhancements based upon specific facts relating to the case.[66] These factors result in the ability to separate states into the three different categories: (1) least strict; (2) moderately strict; and (3) most strict. States labeled as most strict are those containing statutes with the potential punishment rising to the level of a felony.[67] States labeled as moderately strict are those containing statutes with the potential punishment rising to the level of a misdemeanor but with a possible punishment enhancement to a higher level misdemeanor. Lastly, states labeled as least strict are those containing statutes with the potential punishment rising to the level of a misdemeanor but with no possible enhancement to a higher level misdemeanor or felony.
i. Least Strict. There are twenty-nine states classified as least strict.[68] For example, South Dakota is placed in the least strict category because South Dakota Codified Laws section 49-31-31, covering cyberbullying, provides the punishment of a Class 1 misdemeanor.[69] In South Dakota, a Class 1 misdemeanor is punishable by one-year imprisonment in county jail.[70] In addition, South Dakota Codified Laws section 49-31-31 does not provide any potential punishment enhancements.[71] Therefore, because South Dakota reserves the punishment for cyberbullying as a misdemeanor and has no potential punishment enhancements,[72] the state is labeled as least strict.
ii. Moderately Strict. There are twelve states classified as moderately strict.[73] For example, Texas is placed in the moderately strict category because Texas Penal Code section 42.07, covering harassment via electronic communication, has a base level punishment of a Class B misdemeanor.[74] However, the punishment can be enhanced to a Class A misdemeanor if the offense was committed against a child under eighteen-years old with the intent that the child commit suicide or engage in serious bodily harm.[75] Because Texas does not provide the possibility for a punishment of a felony,[76] it does not rise to the level of a most strict categorization. However, because the statute allows for a punishment enhancement from a Class B misdemeanor to a Class A misdemeanor,[77] the state is labeled as moderately strict.
iii. Most Strict. There are eight states classified as most strict.[78] For example, Michigan is placed in the most strict category because Michigan Penal Code section 750.411x, covering the prohibition of cyberbullying, has a base level punishment of a misdemeanor punishable by no more than ninety-three days imprisonment.[79] However, two punishment enhancements in the statute allow for a felony.[80] A felony can result if the offender’s behavior involves a continued pattern of harassing or intimidating behavior resulting in serious bodily injury or if the behavior causes the victim’s death.[81] Because Michigan allows for a potential punishment enhancement to a felony,[82] the state is labeled as most strict.
3. Bullying or Homicide?
Although many state statutes criminalizing cyberbullying stem from the tragic suicides of those who were cyberbullied,[83] a unique issue arises when considering whether a bully should be held liable specifically for the death of their victim and not just their cyberbullying actions. The first publicized case of this situation arose in a Massachusetts court that raised the question, “when does bullying cross over into committing a homicide?”[84]
On July 13, 2014, eighteen-year-old Conrad Roy III died of suicide by carbon monoxide poisoning after locking himself in his truck and breathing in carbon monoxide to the point of suffocation.[85] During the investigation into the suicide, police discovered Conrad’s relationship with out-of-towner Michelle Carter, mainly consisting of communication via text messages and phone calls.[86] An examination of the text messages revealed that Michelle was well aware of Conrad’s history of mental illness and that the conversations were highly related to suicide.[87] Michelle “encouraged [Conrad] to kill himself, instructed him as to when and how he should kill himself, assuaged his concerns over killing himself, and chastised him when he delayed doing so.”[88] Michelle later texted a friend:
Sam, [Conrad’s] death is my fault like honestly I could have stopped him I was on the phone with him and he got out of the [truck] because it was working and he got scared and I fucking told him to get back in Sam because I knew he would do it all over again the next day and I couldnt have him live the way he was living anymore I couldnt do it I wouldnt let him.[89]
A grand jury indicted Michelle for involuntary manslaughter asserting that Michelle’s “wanton or reckless conduct was the cause of [Conrad’s] death.”[90] Michelle appealed the trial judge’s denial of the motion to dismiss; however, the Supreme Judicial Court of Massachusetts affirmed the trial court’s ruling.[91] Michelle was subsequently convicted of involuntary manslaughter in 2017 and sentenced to two and a half years in prison.[92] Michelle appealed her case, but it was affirmed by the Supreme Judicial Court of Massachusetts.[93] Michelle’s writ of certiorari challenging First Amendment violations to the U.S. Supreme Court was denied.[94]
More recently, in another Massachusetts case, twenty-one-year-old Inyoung You pleaded guilty to involuntary manslaughter after encouraging her twenty-two-year-old boyfriend to commit suicide on May 20, 2019, the day of his college graduation.[95] Over the course of their eighteen-month relationship, Inyoung sent more than 47,000 text messages in which she “repeatedly told the victim that he should kill himself or die and waged a campaign of abuse that stripped the victim of his free will.”[96] The circumstances of this case resemble that of Michelle Carter’s case in that both defendants repeatedly encouraged the victim to kill themselves through electronic communication.
Although Michelle Carter and Inyoung You’s cases differ from the traditional idea of cyberbullying—an anonymous person tormenting someone on an electronic device—the actions of these young women constituted cyberbullying.[97] However, given the horrific, extreme nature of the text messages in Carter and You’s cases, Massachusetts has opened the door for the public and other states to consider the following question: Are these perpetrators cyberbullies or murderers?
4. The Effect of Regulating Cyberbullying at the State Level.
As shown through Table 1 and Appendix A’s analysis, the criminal punishment of cyberbullying in the United States (or lack thereof for those states that do not criminalize cyberbullying) has resulted in a wide disparity.[98] Further, the answer to whether some perpetrators are cyberbullies or murderers still remains.[99] These inconsistencies and unknowns create confusion in the eyes of the law. On the one hand, we have some states that do not encompass electronic harassment in their statute’s definitions providing for the criminalization of cyberbullying, while, on the other hand, we have states who have gone above the traditional cyberbullying criminal statutes and have convicted cyberbullies of manslaughter.[100] This dilemma could be eased with a model statute to assist states in following a more uniform standard of punishment.
IV. The Need for a Federal Criminal Cyberbullying Law
In the wise words of Congresswoman Linda T. Sánchez, who introduced the Megan Meier Cyberbullying Prevention Act in 2008,[101] “Our children are so wired into social networks today that they often type more messages than they speak each day.”[102] Given the technological world we live in, this nation needs a federal criminal law regarding cyberbullying to assist with our flawed and inconsistent state laws on cyberbullying.
A. Proposed Solution
Proposing a federal law criminalizing cyberbullying involves a delicate balance between holding cyberbullies responsible and protecting First Amendment rights. This balance, in turn, may result in broad, vague laws that could potentially be struck down as unconstitutional by courts.[103] Therefore, as a starting point for combatting cyberbullying from a federal standpoint, the law must be clear and specific as to what conduct is subject to criminalization. The key to protecting these rights and drawing the line of culpability is only criminalizing repetitive acts of cyberbullying.
Further, the law should include the possibility for enhancements depending on the age of the victim and the offender. Similar to the New Jersey cyber-harassment crime, the statute should provide for an enhancement when the cyberbully is over twenty-one years of age.[104] This enhancement would further penalize adults, who should know the effects cyberbullying can have on minors, such as the adult in the Megan Meier case.[105] Additionally, the statute should provide for an enhancement when the victim is a minor, such as how the Florida statute provides for an enhancement when the victim is a child under the age of sixteen.[106]
Lastly, the law should include the possibility for enhancements when the cyberbully intends that the victim commit suicide or engage in conduct causing serious bodily injury, similar to the Texas harassment statute.[107]
B. Possible Criticisms
Critics may argue that, although cyberbullies should be liable for their malicious actions, the overcriminalization of cyberbullying could lead to First Amendment infringements.[108] Additionally, criticisms related specifically to suicide cases arise when determining whether the cyberbullying was, in fact, the cause of the suicide.
1. First Amendment Infringements
The U.S. Supreme Court has yet to address the constitutionality of criminal cyberbullying laws.[109] However, there are two key cases in lower courts that have examined state laws criminalizing cyberbullying: State v. Bishop and People v. Marquan M.[110] In State v. Bishop, the Supreme Court of North Carolina reversed the court of appeals’ judgment, thus invalidating North Carolina’s cyberbullying statute.[111] The court held that the law directly criminalized speech, requiring that it passes strict scrutiny.[112] In addition, the court noted that the statute was too broad in that it did not require the victim to suffer an injury as a result of the cyberbullying.[113] Therefore, the law “sweeps far beyond the State’s legitimate interest in protecting the psychological health of minors.”[114]
Then, in People v. Marquan M.,[115] the New York Court of Appeals reversed the judgment of the county court, holding that the cyberbullying law was “overbroad and facially invalid under the Free Speech Clause of the First Amendment.”[116] The court reasoned that the statute’s language prohibited “speech far beyond the cyberbullying of children.”[117] The court raised concerns over cyberbullying laws by noting that “the First Amendment protects annoying and embarrassing speech, even if a child may be exposed to it.”[118]
As the explanation for the proposed federal law in Section IV.A shows, the key to criminalizing cyberbullying while still protecting First Amendment rights is to restrict the statute’s reach to repetitive cyberbullying actions—those that extend into the area of malicious intent and ultimately result in intent for the victim to commit suicide or cause serious bodily injury.
2. Concerns Relating Specifically to Suicide Cases
In addition to the potential First Amendment challenges with the “average” cyberbullying act, there are also concerns for cases such as Michelle Carter’s and Inyoung You’s where the young women were held responsible specifically for the death of their victims.[119] Although Michelle’s writ of certiorari to the U.S. Supreme Court focused on First Amendment arguments,[120] the defense’s position during trial relied upon the victim’s, Conrad’s, long history of mental illnesses and suicide attempts.[121] The issue that arises in cases such as Michelle’s is whether the tormenter’s words alone can be seen as the sole cause of the victim’s death.[122] As the defense pointed out during closing statements, Michelle should not be held responsible for a suicide that unfortunately was already imminent regardless of her persistent encouragements.[123]
However, regardless of whether a victim has a long history of mental illnesses and suicide attempts, the continued actions of cyberbullies do not help the situation and can ultimately provoke and encourage the victim to follow through with the suicide. For situations not as severe as that of the Michelle Carter case—those that do not involve a clear line of who was the ultimate cause of death—there should be some sort of accountability for the cyberbully’s actions, as described in the proposed federal law in Section IV.A. Further, statutes such as the Texas harassment law provide for accountability only when it can be shown that the offender had intent for the victim to commit suicide or cause serious bodily injury to themselves.[124] This burden would ultimately allow for a balance between holding cyberbullies accountable and protecting First Amendment rights.
V. Conclusion
Although it appears that the majority of the United States contains a statute to criminalize cyberbullying, the statutes vary significantly in scope. Some statutes clearly reflect the act of cyberbullying as compared to the cyberbullying definition—“sending, posting, or sharing negative, harmful, false, or mean content about someone else . . . [, which] can include sharing personal or private information . . . causing embarrassment or humiliation”—discussed in Section II.B of this Note.[125] For example, West Virginia named its statute “Cyberbullying” and criminalizes “conduct with the intent to harass, intimidate, or bully a minor . . . [, including] [p]osting, disseminating or encouraging others to post or disseminate private, personal, or sexual information.”[126] While the main commonality among all of the statutes is an element of harassment, some states define what harassment entails, while others do not, making it difficult to determine whether a cyberbullying act actually falls under the statute.[127] Lastly, only four states contain some sort of language in the statute relating to suicide stemming from cyberbullying.[128] Given the inconsistencies, a federal law should be implemented to provide states with more guidance on the definitions of the statutes.
While the manslaughter prosecutions for these extreme cyberbullying cases resulting in suicides are few and far between, a killing by words alone raises serious concerns about who is truly at fault for the victim’s death. Although there is no doubt that Michelle Carter’s actions contributed to Conrad Roy’s death, a slippery slope arises when we essentially change an autopsy’s manner of death from a suicide to a homicide. However, the United States can hold cyberbullies responsible for their harmful words while still protecting First Amendment rights by enacting statutes that focus on the intent and repetitiveness behind a cyberbully’s actions.
Kirsten Hallmark
Jennifer Steinhauer, Verdict in MySpace Suicide Case, N.Y. Times (Nov. 26, 2008), https://www.nytimes.com/2008/11/27/us/27myspace.html [https://perma.cc/5WT3-NERD].
See Parents: Cyber Bullying Led to Teen’s Suicide, ABC News (Feb. 19, 2009, 3:39 AM), https://abcnews.go.com/GMA/storyid=3882520&page=1 [https://perma.cc/MV6Q-GTR2] (“[S]ix weeks after Megan’s death, the Meiers learned Josh Evans [the fictional boy] never existed. A mother, who had learned of the page from her own daughter, told the Meiers a neighborhood mom had created and monitored Evans’ profile and page.”); see also Megan’s Story, Megan Meier Found., https://www.meganmeierfoundation.org/megans-story [https://perma.cc/2L7W-HYYB] (last visited Nov. 14, 2021) (describing Megan’s interaction with a fictional online boy who contributed to Megan’s cyberbullying).
Emily Friedman, Victim of Secret Dorm Sex Tape Posts Facebook Goodbye, Jumps to His Death, ABC News (Sept. 29, 2010, 2:37 PM), https://abcnews.go.com/US/victim-secret-dorm-sex-tape-commits-suicide/story?id=11758716 [https://perma.cc/7HMZ-URJ3].
See Ian Parker, The Story of a Suicide, New Yorker (Jan. 29, 2012), https://www.newyorker.com/magazine/2012/02/06/the-story-of-a-suicide [https://perma.cc/JRQ8-KB8M] (providing a detailed account of the events surrounding Tyler Clementi’s death); see also Tyler Clementi’s Story, Tyler Clementi Found., https://tylerclementi.org/tylers-story/ [https://perma.cc/6G87-KXEM] (last visited Nov. 14, 2021) (“Tyler discovered what his abuser had done when he viewed his roommate’s Twitter feed. He learned he had widely become a topic of ridicule in his new social environment. He also found out that his roommate was planning a second attempt to broadcast from the webcam.”).
Randi Kaye, How a Cell Phone Picture Led to Girl’s Suicide, CNN (Oct. 7, 2010, 3:51 PM), http://www.cnn.com/2010/LIVING/10/07/hope.witsells.story/index.html [https://perma.cc/5TQZ-9KV4]; see also Herb Scribner, Teens Are Creating ‘Hate Pages’ on Instagram to Bully and ‘Trash’ Their Peers, Deseret News (Oct. 15, 2018, 12:00 AM), https://www.deseret.com/2018/10/15/20655935/teens-are-creating-hate-pages-on-instagram-to-bully-and-trash-their-peers [https://perma.cc/RF6Q-TZ73] (providing Instagram as an example of where hate pages are created) (“[M]any teens create hate pages: separate Instagram accounts, purpose-built and solely dedicated to trashing one person . . . . They’ll post bad photos of their target, expose her secrets, post screenshots of texts from people saying mean things about her, and any other terrible stuff they can find.”).
Nicholas Kardaras, Glow Kids: How Screen Addiction Is Hijacking Our Kids–And How to Break the Trance 101–02 (2016).
Raphael Cohen-Almagor, Confronting the Internet’s Dark Side 107–08 (2015).
Id. at 107 (“[B]ullies spread rumors that Ryan was gay. To quash the rumor, Ryan approached a pretty, popular girl online and tried to establish a relationship with her . . . . But then, in front of her friends, she told him he was a loser, that she did not want anything with him, and that she was only joking online.”).
Justin W. Patchin, Amanda Todd, Cyberbullying, and Suicide, Cyberbullying Rsch. Ctr. (Oct. 30, 2012), https://cyberbullying.org/amanda-todd-cyberbullying-and-suicide [https://perma.cc/2KR2-7XSA] (“Many students have written out note cards and taken to YouTube to tell their story . . . . These are often referred to as ‘If You Really Knew Me’ or ‘secrets’ videos and feature young people exposing their souls in a very public, but still somewhat private way.”).
Lelia Green, “Judge Me, or Be There for Me”: How Can Narratives Be Used to Encourage Action and Intervention by Parents, Schools, the Police, Policymakers, and Other Children?, in Narratives in Research and Interventions on Cyberbullying Among Young People 218 (Heidi Vandebosch & Lelia Green eds., 2019).
See Suicide, Nat’l Inst. Mental Health (2020), https://www.nimh.nih.gov/health/statistics/suicide [https://perma.cc/3ERH-39R5].
Katherine Schaeffer, Most U.S. Teens Who Use Cellphones Do It to Pass Time, Connect with Others, Learn New Things, Pew Rsch. Ctr. (Aug. 23, 2019), https://www.pewresearch.org/fact-tank/2019/08/23/most-u-s-teens-who-use-cellphones-do-it-to-pass-time-connect-with-others-learn-new-things/ [https://perma.cc/A62F-4FDE]; Elizabeth Englander, More Cellphone Use by Children Could Mean More Bullying–Online and Offline, Wash. Post (Oct. 8, 2018, 10:00 AM), https://www.washingtonpost.com/national/health-science/more-cellphone-use-by-children-could-mean-more-bullying--online-and-offline/2018/10/05/29b9455c-c666-11e8-b1ed-1d2d65b86d0c_story.html [https://perma.cc/A5R7-45LL].
See Sameer Hinduja & Justin W. Patchin, Bullying, Cyberbullying, and Suicide, 14 Archives Suicide Rsch. 206, 210, 216 (2010).
For example, Ryan Halligan’s suicide dated all the way back to 2003. Cohen-Almagor, supra note 7, at 108. Yet, in 2017, about 15% of students in grades 9–12 reported experiencing cyberbullying. Ke Wang et al., Nat’l Ctr. for Educ. Stat., Indicators of School Crime and Safety: 2019 64 (2020).
Richard Donegan, Bullying and Cyberbullying: History, Statistics, Law, Prevention and Analysis, Elon J. Undergraduate Rsch. Commc’n, Spring 2012, at 33, 33–34 (stating that the word “bully” can be traced back as far as the 1530s and suggesting that technology has allowed bullies to mask their identities behind a computer screen).
Cyberbullying, Pacer’s Nat’l Bullying Ctr., https://www.pacer.org/bullying/info/cyberbullying/ [https://perma.cc/MMT6-5TTA] (last visited Sept. 18, 2022).
See Erin Peebles, Cyberbullying: Hiding Behind the Screen, 19 Paediatrics & Child Health 527, 527 (2014) (expressing the notion that cyberbullying is more pervasive than traditional bullying because traditional bullying was typically limited to school).
See Justin W. Patchin & Sameer Hinduja, Bullies Move Beyond the Schoolyard: A Preliminary Look at Cyberbullying, 4 Youth Violence & Juv. Just. 148, 152 (2006) (explaining that “[b]ecause of the advent and continued growth of technological advances, the transmutation of bullying has occurred—from the physical to the virtual” and that “instances of bullying are no longer restricted to real-world settings”).
Id. (“Physical separation of the bully and the victim is no longer a limitation in the frequency, scope, and depth of harm experienced and doled out.”).
See Eric Rice et al., Cyberbullying Perpetration and Victimization Among Middle-School Students, 105 Am. J. Pub. Health 66, 66 (2015) (stating that older studies found instant messaging, chat rooms, and message boards as the most common mediums for cyberbullying but now social media platforms are more common for youth to utilize for bullying).
See Tracy Vaillancourt et al., Cyberbullying in Children and Youth: Implications for Health and Clinical Practice, 62 Canadian J. Psychiatry 368, 370 (2016) (“It has been suggested that the effects of cyberbullying may be greater than the effects of traditional bullying because the attack can be viewed by a wider audience, who can access the material repeatedly and in turn share it to an untold number of people.”).
Chia-Wen Wang et al., Overlap of Traditional Bullying and Cyberbullying and Correlates of Bullying Among Taiwanese Adolescents: A Cross-Sectional Study, BMC Pub. Health, Dec. 30, 2019, at 2, 2 (“Compared with traditional bullying, cyberbullying has a unique nature with respect to publicity, anonymity, and the lack of supervision, which can lead to substantial psychological and psychiatric problems among victims.”).
See Cyberbullying, supra note 16; see also Chris Kyriacou & Antonio Zuin, It’s the Permanence of Online Abuse That Makes Cyberbullying So Damaging for Children, Conversation (July 31, 2014, 1:07 AM), https://theconversation.com/its-the-permanence-of-online-abuse-that-makes-cyberbullying-so-damaging-for-children-29874 [https://perma.cc/LP3T-5K3Q] (“In cyberspace, bullying can occur without the bully seeing the victim’s immediate reaction. . . . This allows the bully to feel more empowered through the disinhibition of conventional expectations about acceptable social behaviour and by not being in direct face-to-face contact with the victim.”).
Peter Suciu, Cyberbullying Remains Rampant on Social Media, Forbes (Sept. 29, 2021, 3:01 PM), https://www.forbes.com/sites/petersuciu/2021/09/29/cyberbullying-remains-rampant-on-social-media/?sh=54d510ce43c6 [https://perma.cc/6TU9-42L3] (“What is also an issue is that the act of a cyberbully can be viewed repeatedly and shared to others without limit, making it difficult for support networks to shield victims from cyberbullying.”).
See What Is Cyberbullying, StopBullying, https://www.stopbullying.gov/cyberbullying/what-is-it [https://perma.cc/4DJ3-JWLX] (last visited Oct. 8, 2022) (“This public record can be thought of as an online reputation, which may be accessible to schools, employers, colleges, clubs, and others who may be researching an individual now or in the future. Cyberbullying can harm the online reputations of everyone involved – not just the person being bullied, but those doing the bullying or participating in it.”); see also Cyberbullying, supra note 16.
See S. Elizabeth Mallory, Anonymous Bloggers and Defamation: Balancing Interests on the Internet, 84 Wash. L. Rev. 1187, 1193 (2006) (“One who falls victim to anonymous blogging has little ability to completely destroy the statements.”).
Cyberbullying, supra note 16.
See Peebles, supra note 17, at 527 (stating that “there is no universally accepted definition” of cyberbullying).
Elizabeth Englander et al., Defining Cyberbullying, 140 Pediatrics 148, 149 (2017). Compare, e.g., Mo. Rev. Stat. § 160.775 (2016) (defining cyberbullying as “the transmission of a communication including, but not limited to, a message, text, sound, or image by means of an electronic device including, but not limited to, a telephone, wireless telephone, or other wireless communication device, computer, or pager”), with Utah Code Ann. § 53G-9-601 (West 2019) (defining cyberbullying as “using the Internet, a cell phone, or another device to send or post text, video, or an image with the intent or knowledge, or with reckless disregard, that the text, video, or image will hurt, embarrass, or threaten an individual, regardless of whether the individual directed, consented to, or acquiesced in the conduct, or voluntarily accessed the electronic communication”).
Englander et al., supra note 29 (describing the definitions utilized in a 2006 and 2014 cyberbullying study).
Federal Laws, StopBullying, https://www.stopbullying.gov/resources/laws/federal [https://perma.cc/35U2-R45Q] (last visited Oct. 8, 2022).
What Is Cyberbullying, supra note 25.
See, e.g., Texas PTA, David’s Law: A Texas PTA Story, Nat’l Parent Tchr. Ass’n (Feb. 19, 2019), https://onevoice.pta.org/davids-law-a-texas-pta-story/ [https://perma.cc/D5SJ-6KYH] (describing the Molak family leading the charge to pass legislation following the suicide of sixteen-year-old David Molak).
See Mark D. Wilson, No Charges Will Be Filed in the Suicide of David Molak, San Antonio Express-News (May 11, 2016, 11:07 PM), https://www.mysanantonio.com/news/local/crime/article/DA-No-charges-will-be-filed-in-the-death-of-7462019.php [https://perma.cc/YU8Q-5PDE].
Id.
Id.
Caitlin Keating, Family of 16-Year-Old Boy Who Died of Suicide After Relentless Cyberbullying Speaks Out, People (Dec. 21, 2017, 12:25 PM), https://people.com/human-interest/david-molak-family-speaks-out-after-suicide/ [https://perma.cc/HC54-5T5D].
Id.
Id.
David’s father stated that, “Throughout the whole process, we just learned how pervasive this problem [cyberbullying] was across the country and really around the world.” Id.
Texas PTA, supra note 33.
See generally S.B. 179, 85th Leg., Reg. Sess. (Tex. 2017).
See David’s Law One Pager, David’s Legacy Found., https://www.davidslegacy.org/wp-content/uploads/2020/11/Davids-Law-One-Pager-R5.pdf [https://perma.cc/B3L2-H8JZ] (last visited Oct. 8, 2022).
Id.; see also S.B. 179, 85th Leg., Reg. Sess. (Tex. 2017).
David’s Law One Pager, supra note 43; see also Tex. Educ. Code Ann. § 37.0832 (West 2021).
David’s Law One Pager, supra note 43 (providing that it is only available for cyberbullying victims who are minors at the time the cyberbullying occurs); see also TEX. Civ. Prac. & Rem. Code Ann. § 129A.
See David’s Law One Pager, supra note 43; see also Tex. Penal Code Ann. § 42.07 (West 2021).
Bullying Laws Across America, Cyberbullying Rsch. Ctr., https://cyberbullying.org/bullying-laws [https://perma.cc/KY89-YQE8] (last visited Oct. 8, 2022).
For the first category, not all states with bullying laws in the United States encompass cyberbullying or online harassment. Out of the fifty states, two states (Alaska and Wisconsin) do not include definitions of cyberbullying. Id.
For the second category, not all states criminalize cyberbullying. The Cyberbullying Research Center suggests that seven states (Maine, Minnesota, Nebraska, New Hampshire, New Mexico, District of Columbia (D.C.), and Wyoming) do not criminalize cyberbullying. Id. However, this Note argues that all states except for D.C. and New Mexico potentially provide an avenue for prosecuting a cyberbullying act. See infra note 129.
For the third category, certain state laws allow for schools to discipline students for cyberbullying. For example, only five states (Alabama, Michigan, Montana, Nevada, and New Hampshire), do not allow schools to discipline cyberbullies. Bullying Laws Across America, supra note 48.
For the fourth category, every state except for Montana has a law mandating schools to have some sort of formal policy to deal with cyberbullying. Id.
The fifth category is based on federal caselaw that allows for schools to discipline off-campus behavior that results in a substantial disruption of the learning environment at school. Half of the states have codified this standard into their respective cyberbullying statutes. Id.
Id.
Id.; see also Englander et al., supra note 29, at 149 (stating that the term cyberbullying was not coined until 1999).
See infra Table 1 and Appendix A.
Federal Laws, supra note 31 (“Although no federal law directly addresses bullying, in some cases, bullying overlaps with discriminatory harassment when it is based on race, national origin, color, sex (including sexual orientation and gender identity), age, disability, or religion. Federally-funded schools (including colleges and universities) have an obligation to resolve harassment on these bases.”).
See H.R. 6123, 110th Cong. (2008).
See id.; see also supra text accompanying notes 1–2 (providing a brief description of the Megan Meier case).
See H.R. 6123 (defining cyberbullying as “[w]hoever 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”).
Id. Congress’s website does not note any further actions after the referenced date. See H.R. 6123–Megan Meier Cyberbullying Prevention Act, Congress, https://www.congress.gov/bill/110th-congress/house-bill/6123) [https://perma.cc/4RCZ-CDDD] (last visited Dec. 2, 2022).
See Table 1 and Appendix A for an overview of each state’s related cyberbullying statute.
See infra note 129 for an explanation of which states are classified as criminalizing cyberbullying.
The creation of Table 1 stems from Appendix A, which provides a breakdown of each state’s criminal cyberbullying statutes and potential punishment range.
Although some states include a potential fine punishment, this Note focuses only on potential incarceration.
Along with fact-specific circumstances, some states allow an enhancement for subsequent convictions of cyberbullying. See, e.g., Ohio Rev. Code Ann. § 2917.21 (West 2016). However, for purposes of this analysis, this Note looks only to the potential punishment range for a first-time offender.
States labeled as most strict can fall into one of two categories: (1) those that have a base level penalty of a felony; or (2) those that have a punishment enhancement up to a felony.
The thirty states include Alabama, Alaska, Arizona, California, Connecticut, Delaware, Georgia, Hawaii, Indiana, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Nebraska, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Utah, Vermont, Virginia, Washington, West Virginia, and Wyoming. See supra Table 1; infra Appendix A.
S.D. Codified Laws § 49-31-31 (2022).
Id. § 22-6-2 (2005).
See id. § 49-31-31 (2022).
See id.; id. § 22-6-2 (2005).
The eleven states include Arkansas, Colorado, Idaho, Iowa, Minnesota, Montana, Nevada, New Hampshire, North Carolina, North Dakota, Texas, and Wisconsin. See supra Table 1; infra Appendix A.
Tex. Penal Code Ann. § 42.07(c) (West 2021). In Texas, a Class B misdemeanor is punishable by confinement in jail for a term not to exceed 180 days. Id. § 12.22 (1994).
The Texas Penal Code states:
An offense under this section . . . is a Class A misdemeanor if:
. . .
(2) the offense was committed under Subsection(a)(7) [“sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another”] or (8) [“publishes on an Internet website, including a social media platform, repeated electronic communications in a manner reasonably likely to cause emotional distress, abuse, or torment to another person”] and:
(A) the offense was committed against a child under 18 years of age with the intent that the child:
(i) commit suicide; or
(ii) engage in conduct causing serious bodily injury to the child . . . .
Id. § 42.07(c) (2021). In Texas, a Class A misdemeanor is punishable by confinement in jail for a term not to exceed one year. Id. § 12.21 (1994).
See id. § 42.07 (2021).
Id.
The eight states include Florida, Illinois, Maryland, Michigan, Mississippi, Missouri, New Jersey, and Tennessee. See supra Table 1; infra Appendix A.
Mich. Comp. Laws § 750.411x(2) (2019).
The Michigan Penal Code states:
(4) A person who violates subsection (1) in a manner that involves a continued pattern of harassing or intimidating behavior and by that violation causes serious injury to the victim is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $5,000.00, or both. As used in this subsection, “serious injury” means permanent, serious disfigurement, serious impairment of health, or serious impairment of a bodily function of a person.
(5) A person who violates subsection (1) in a manner that involves a continued pattern of harassing or intimidating behavior and by that violation causes the death of the victim is guilty of a felony punishable by imprisonment for not more than 10 years or a fine of not more than $10,000.00, or both.
Id. § 750.411x(4)–(5).
Id.
Id.
See supra Section II.C.
See Kayla Epstein et al., Her Texts Urged a Boyfriend to Kill Himself, Wash. Post (Feb. 6, 2019), https://www.washingtonpost.com/crime-law/2019/02/06/her-texts-urged-boyfriend-kill-himself-judge-just-upheld-her-conviction/ [https://perma.cc/743F-H62E] (“After the conviction, Laurie Levenson, a criminal law professor at Loyola Law School in Los Angeles, told The Post that the case sends a strong message that ‘there are new means of committing old crimes,’ and prosecutors will be more likely to look at those cases. She argued that the case did not set legal precedent but raised the question, ‘When does bullying cross over into committing a homicide?’”); see also Fae Patton, Involuntary Manslaughter Conviction from Text Messages and the “Virtually Present” Defendant, J. Gender, Soc. Pol’y & L., https://jgspl.org/involuntary-manslaughter-conviction-from-text-messages-and-the-virtually-present-defendant/ [https://perma.cc/52MT-HQM3] (last visited Oct. 8, 2022) (“While cyberbullying legislation already exists, the criminalization of those who assist another in committing suicide, particularly using technology, is a recent phenomenon.”).
Emily Shapiro, ‘Conrad’s Law,’ Named for Teen Who Died in Texting-Suicide Case, Aims to Criminalize Suicide Coercion, ABC News (July 24, 2019, 10:29 AM), https://abcnews.go.com/US/conrads-law-named-teen-died-texting-suicide-case/story?id=64532207 [https://perma.cc/2TCD-L6FK]; Patton, supra note 84.
Commonwealth v. Carter, 52 N.E.3d 1054, 1057 (Mass. 2016).
Id. (“[Conrad] had been receiving treatment for mental health issues since 2011 [, and] [i]n 2013, [Conrad] attempted to commit suicide by overdosing on acetaminophen.”).
Id. at 1057–58.
Id. at 1059 n.8.
Id. at 1059.
Id. at 1059, 1064–65 (“The grand jury were justified in returning an indictment of involuntary manslaughter against the defendant.”).
Julia Jacobo & Jenner Smith, Michelle Carter, Convicted in Texting-Suicide Case, ABC News (Jan. 23, 2020), https://abcnews.go.com/US/michelle-carter-convicted-texting-suicide-case-released-good/story?id=68450833 [https://perma.cc/Y8PD-ZNXA].
See Carter v. Commonwealth, 115 N.E.3d 559, 562 (Mass. 2019).
See Carter v. Massachusetts, 140 S. Ct. 910, 910 (2020); see also Petition for Writ of Certiorari at 6–7, Carter v. Massachusetts, 140 S. Ct. 910 (2020) (No. 19-62).
Marc Fortier, Former BC Student Charged in Boyfriend’s Suicide Pleads Guilty, NBC Bos. (Dec. 3, 2021, 6:50 PM), https://www.nbcboston.com/news/local/former-bc-student-charged-in-boyfriends-suicide-pleads-guilty/2597981/ [https://perma.cc/634D-PRYN].
Meredith Deliso, Former College Student Who Texted Boyfriend ‘Go Kill Yourself’ Before His Death Pleads Guilty, ABC News (Dec. 24, 2021), https://abc7chicago.com/inyoung-you-text-alexander-urtula-boston-college-suicide-student/11381019/ [https://perma.cc/LJB2-5F3U].
Recall that an organization affiliated with the U.S. Department of Health defines cyberbullying as “bullying that takes place over digital devices” and includes “sending, posting, or sharing negative, harmful, false, or mean content about someone else” or “sharing personal or private information about someone else causing embarrassment or humiliation.” See supra note 32 and accompanying text. In applying this definition to the Carter and You cases, it is clear that these young women were cyberbullies utilizing their digital devices to send harmful negative content to their boyfriends.
See supra Table 1; infra Appendix A.
See supra Section III.B.3.
See supra Section III.B.3; infra Appendix A.
See H.R. 6123, 110th Cong. (2008).
Press Release, Linda Sánchez, Congresswoman, Linda Sánchez Applauds Passage of Cyberbullying Legislation (Apr. 18, 2012), https://lindasanchez.house.gov/media-center/press-releases/linda-s-nchez-applauds-passage-cyberbullying-legislation-april-18-2012 [https://perma.cc/4GTH-2SZ4].
See People v. Moreno, 506 P.3d 849, 852–53 (Colo. 2022) (striking down a provision in the state’s cyberbullying law as “substantially overbroad on its face”).
See N.J. Stat. Ann. § 2C:33-4.1 (West 2022).
See supra notes 1–2 and accompanying text (providing a brief description of the Megan Meier case).
See Fla. Stat. § 784.048 (2021).
See Tex. Penal Code Ann. § 42.07 (West 2021).
See Lyrissa Lidsky & Andrea Pinzon Garcia, How Not to Criminalize Cyberbullying, 77 Mo. L. Rev. 693, 715 (2012) (“[M]any people feel ‘alarmed’ or ‘harassed’ when confronted by ideas they find objectionable, but the First Amendment prohibits states from imposing liability on speech merely because it creates discomfort or annoyance or even ‘alarm’ in its target audience.”).
See David L. Hudson Jr., Is Cyberbullying Free Speech, ABA J. (Nov. 1, 2016), https://www.abajournal.com/magazine/article/is_cyberbullying_free_speech [https://perma.cc/U738-HPSR] (quoting Justin W. Patchin, co-director of the Cyberbullying Research Center) (“The bottom line is that we need to sort this out. There are certain things that people shouldn’t be able to say online. There definitely is a line somewhere, but the courts haven’t really defined where that line is.”).
See generally id.
North Carolina’s cyberbullying statute made it “unlawful for any person to use a computer or computer network to . . . [p]ost or encourage others to post on the Internet private, personal, or sexual information pertaining to a minor . . . [w]ith the intent to intimidate or torment a minor.” N.C. Gen. Stat. § 14–458.1 (2012). As a result, Robert Bishop, among others, was charged with cyberbullying after posting negative pictures and comments about Dillion Price. See State v. Bishop, 787 S.E.2d 814, 815–16 (N.C. 2016) (“In September 2011, a male classmate posted on Facebook a screenshot of a sexually themed text message Price had inadvertently sent him. Below that post, several individuals commented, including Price and defendant. Price accused the posting student of altering or falsifying the screenshot and threatened to fight him over the matter; defendant commented that the text was ‘excessively homoerotic’ and accused others of being ‘defensive’ and ‘pathetic for taking the [I]nternet so seriously.’ At least two other Facebook postings with similar tone and attitude followed, all involving Price, defendant, and other commenters. Many of the messages that ensued included comments and accusations about each other’s sexual proclivities, along with name-calling and insults.”). After the district court convicted Bishop and the superior court and court of appeals affirmed his conviction, he filed a petition for discretionary review to the Supreme Court of North Carolina. Id. at 816. Ultimately, the North Carolina Supreme Court ruled that the statute was unconstitutional because it “restricts speech, not merely nonexpressive conduct; that this restriction is content based; and that it is not narrowly tailored to the State’s asserted interest in protecting children from the harms of online bullying. As such, the statute violates the First Amendment’s guaranteed of the freedom of speech.” See id. at 822.
Bishop, 787 S.E.2d at 819.
Id. at 820.
Id. at 821.
In 2010, the New York Albany County Legislature adopted a new local law—the offense of cyberbullying—defined as:
[A]ny act of communicating or causing a communication to be sent by mechanical or electronic means, including posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail, with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.
People v. Marquan M., 19 N.E.3d 480, 484 (N.Y. 2014). A month after enacting the provision, Marquan M. was convicted for anonymously posting photographs of classmates with “detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information.” Id. The county court affirmed, and Marquan appealed to the New York Court of Appeals. Id.
See id. at 488 (“Although the First Amendment may not give defendant the right to engage in these activities, the text of Albany County’s law envelops far more than acts of cyberbullying against children by criminalizing a variety of constitutionally-protected modes of expression.”).
Id. at 486.
Id. at 487.
See supra Section III.B.3 (providing a brief description of the Michelle Carter and Inyoung You cases).
See generally Petition for Writ of Certiorari, supra note 94, at 8–23.
See Brief for Defendant-Appellant at 25, Commonwealth v. Carter, 115 N.E.3d 559 (Mass. 2020) (No. SJC-12502).
See Nate Raymond, Massachusetts Manslaughter Conviction Upheld in Teen Texting Suicide Case, Reuters, Feb. 6, 2019, 8:57 AM, https://www.reuters.com/article/us-massachusetts-crime-teen-texting/massachusetts-manslaughter-conviction-upheld-in-teen-texting-suicide-case-idUSKCN1PV1SV [https://perma.cc/MA5G-DBXR] (stating that the Massachusetts Supreme Judicial Court rejected Carter’s free speech arguments of being punished for her words alone).
Don Glaun, Michelle Carter Trial Closing Arguments: Was It a ‘Crime Via Text’ or Did Conrad Roy Cause His Own Death?, MassLive (June 13, 2017, 10:31 PM) https://www.masslive.com/news/2017/06/michelle_carter_trial_closing.html [https://perma.cc/987H-UXH9].
See Tex. Penal Code Ann. § 42.07(c)(A) (West 2021).
See supra note 25 and accompanying text.
W. Va. Code § 61-3C-14c (2018).
See Appendix A. Compare W. Va. Code § 61-3C-14c (2018) (defining the meaning of “[h]arass, intimidate, or bully” as an intentional communication or threat that “[i]s sufficiently severe, persistent, or pervasive that it creates an intimidating, threatening, or emotionally abusive environment for a minor”), with N.H. Rev. Stat. Ann. § 644:4 (2016) (noting a lack of explicit definition for harassment).
See Md Code Ann., Crim. Law § 3-805 (West 2019); Mich. Comp. Laws § 750.411x (2019); Tenn. Code Ann. § 39-17-308 (2016); Tex. Penal Code Ann. § 42.07 (West 2021).
Appendix A represents the forty-nine states containing a statute for potentially criminalizing cyberbullying. Although only five states (Arkansas, Louisiana, Michigan, North Carolina, and West Virginia) have a statute explicitly named “cyberbullying,” Appendix A represents those states that have an applicable statute to potentially criminalize a cyberbullying act, such as electronic harassment, cyberstalking, etc. In other words, this Note does not examine whether cyberbullying acts have successfully been criminalized in these states but just whether they possess a statute to potentially do so. There are two states (D.C. and New Mexico) that contain harassment-like statutes but do not include electronic forms of harassment within the statute’s definition. D.C. contains two forms of stalking statutes; however, neither contain any language for electronic forms of harassment. See D.C. Code § 22-3133 (2009) (showing statute for “[s]talking”); id. § 22-404 (2013) (showing statute for “[a]ssault or threatened assault in a menacing manner; stalking”). New Mexico has a harassment statute; however, it does not explicitly include electronic forms. See N.M. Stat. Ann. § 30-3A-2 (1997) (showing statute for “[h]arassment”).
Ala. Code § 13A-11-8 (1997) (showing statute for “[h]arassment or harassing communications”); id. § 13A-5-7(a)(3) (1978) (listing the incarceration punishment for a Class C misdemeanor).
Alaska Stat. § 11.61.120 (2019) (showing statute for “[h]arassment in the second degree”); id. § 12.55.135(b) (2017) (listing the incarceration punishment for a Class B misdemeanor).
Ariz. Rev. Stat. Ann. § 13-2921 (2022) (showing statute for “[h]arassment”); id. § 13-707(A)(1) (listing the incarceration punishment for a Class 1 misdemeanor).
Ark. Code Ann. § 5-71-217 (2015) (showing statute for “[c]yberbullying,” and providing for an enhancement when the victim is a school employee); id. § 5-4-401(b)(1) (1983) (listing the incarceration punishment for a Class A misdemeanor).
Cal. Penal Code § 653.2 (West 2010) (showing statute for electronic cyber harassment and listing the maximum incarceration punishment for a misdemeanor).
Colo. Rev. Stat. § 18-9-111 (2022) (showing statute for “[h]arassment,” and providing an enhancement when the offender commits harassment “with the intent to intimidate or harass another person, in whole or in part, because of that person’s actual or perceived race; color; religion; ancestry; national origin; physical or mental disability”); id. § 18-1.3-501 (listing the maximum incarceration punishment for a Class 1 misdemeanor).
Conn. Gen. Stat. § 53a-183 (2021) (showing statute for “[h]arassment in the second degree”); id. § 53a-36 (2012) (listing the maximum incarceration punishment for a Class C misdemeanor).
Del. Code Ann. tit. 11, § 1311 (2008) (showing statute for “[h]arassment”); id. § 4206(a) (2003) (listing the maximum incarceration punishment for a Class A misdemeanor).
Fla. Stat. § 784.048 (2021) (showing statute for “[s]talking” that contains “cyberstalk[ing]” involving harassing communications and providing an enhancement when the victim is “a child under 16 years of age”); id. § 775.082 (2019) (listing the maximum incarceration punishment for a third-degree felony).
Ga. Code Ann. § 16-11-39.1 (2015) (showing statute for “[h]arassing communications”); id. § 17-10-3 (2016) (listing the maximum incarceration punishment for a misdemeanor).
Haw. Rev. Stat. § 711-1106 (2009) (showing statute for “[h]arassment”); id. § 706-663 (2020) (listing the maximum incarceration punishment for a petty misdemeanor).
Idaho Code § 18-917A (2015) (showing statute for “[s]tudent harassment—intimidation—bullying” is reserved only for acts on school property or at a school activity); id. § 18-6710 (1994) (showing statute for “[u]se of telephone to annoy, terrify, threaten, intimidate, harass or offend,” and listing the maximum incarceration for the offense).
720 Ill. Comp. Stat. 5/12-7.5 (2018) (showing statute for “[c]yberstalking”); 730 Ill. Comp. Stat. 5/5-4.5-45 (2017) (listing the maximum incarceration punishment for a Class 4 felony).
Ind. Code § 35-45-2-2 (1978) (showing statute for “[h]arassment”); id. § 35-50-3-3 (1977) (listing the maximum incarceration punishment for a Class B misdemeanor).
Iowa Code § 708.7 (2022) (showing statute for “[h]arassment,” and providing an enhancement when the offender “[d]isseminates, publishes, distributes, posts, or causes to be disseminated, published, distributed, or posted a photograph or film showing another person in a state of full or partial nudity or engaged in a sex act, knowing that the other person has not consented to the dissemination, publication, distribution, or posting”); id. § 903.1(2) (2020) (listing the maximum incarceration punishment for an aggravated misdemeanor).
Kan. Stat. Ann. § 21-6206 (2011) (showing statute for “[h]arassment by telecommunication device”); id. § 21-6602(a)(1) (2014) (listing the maximum incarceration punishment for a Class A misdemeanor).
Ky. Rev. Stat. Ann. § 525.080 (West 2016) (showing statute for “[h]arassing communications”); id. § 532.090(2) (West 1975) (listing the maximum incarceration punishment for a Class B misdemeanor).
La. Stat. Ann. § 14:40.7 (2019) (showing statute for “[c]yberbullying,” and listing the maximum incarceration punishment for the offense).
Me. Stat. tit. 17-A, § 506 (2018) (showing statute for “[h]arassment by telephone or by electronic communication device”); id. § 4-A(3) (1991) (listing the maximum incarceration punishment for a Class E crime).
Md. Code Ann., Crim. Law § 3-805 (West 2019) (showing statute for “[m]isuse of electronic communication or interactive computer service,” providing an enhancement when the offender has “intent to induce a minor to commit suicide,” and listing the maximum incarceration punishment for the offense). Although the Maryland statute defines the enhancement as a misdemeanor, Maryland is placed in the most strict category in Table 1 because the maximum incarceration is ten years, reflecting more of a felony-type of punishment. Id.
Mass. Gen. Laws ch. 265, § 43A (2010) (showing statute for “[c]riminal harassment,” and listing the maximum incarceration punishment for the offense).
Mich. Comp. Laws § 750.411x (2019) (showing statute for “[c]yberbullying,” providing an enhancement when the cyberbullying “involves a continued pattern of harassing or intimidating behavior and by that violation causes the death of the victim,” and listing the maximum incarceration punishment for a felony).
Minn. Stat. § 609.79 (2020) (showing statute for “[o]bscene or passing telephone calls”); id. § 609.749 (2021) (showing statute for “[h]arassment; stalking”); id. § 609.92 (listing the maximum incarceration punishment for a misdemeanor). Violating section 609.79 is a misdemeanor, while section 609.749 is a gross misdemeanor; therefore, there is technically an enhancement.
Miss. Code Ann. § 97-45-15 (2003) (showing statute for “[c]yberstalking,” and listing the maximum incarceration punishment for a felony).
Mo. Rev. Stat. § 565.091 (2017) (showing statute for “[h]arassment, second degree”); id. § 565.090 (showing statute for “[h]arassment, first degree,” and providing an enhancement from harassment in the second degree when actual emotional distress of the victim results); id. § 558.011 (2021) (listing the maximum incarceration punishment for a Class E felony).
Mont. Code Ann. § 45-8-213 (2019) (showing statute for “[p]rivacy in communications,” and listing the maximum incarceration punishment for the offense); id. § 45-5-220(4) (showing statute for “[s]talking,” and listing the maximum incarceration punishment for the offense).
Neb. Rev. Stat. § 28-1310 (2019) (showing statute for “[i]ntimidation by telephone call or electronic communication”); id. § 28-106 (2016) (listing the maximum incarceration punishment for a Class 3 misdemeanor).
Nev. Rev. Stat. § 200.575 (2019) (showing statute for “[s]talking,” providing an enhancement when the “victim is under the age of 16 and the person is 5 or more years older than the victim”); id. § 193.140 (2013) (listing the maximum incarceration punishment for a gross misdemeanor).
N.H. Rev. Stat. Ann. § 644:4 (2016) (showing statute for “[h]arassment”); id. § 625:9 (providing that a misdemeanor is presumed to be a Class B misdemeanor unless the offense involves a “threat of violence”; therefore, there is potentially an enhancement available).
N.J. Stat. Ann. § 2C:33-4.1 (West 2022) (showing statute for “[c]rime of cyber-harassment,” and providing an enhancement when the defendant “is 21 years of age or older at the time of the offense and impersonates a minor for the purpose of cyber-harassing a minor”); id. § 2C:43-6(a)(3) (West 2013) (listing the maximum incarceration punishment for a third-degree crime). Because New Jersey does not classify its crimes into misdemeanors and felonies and the maximum punishment with the enhancement is five years, New Jersey resides in the most strict category in Table 1.
N.Y. Penal Law § 240.30 (McKinney 2019) (showing statute for “[a]ggravated harassment in the second degree”); id. § 70.15(1) (listing the maximum incarceration punishment for a Class A misdemeanor).
N.C. Gen. Stat. § 14-458.1 (2012) (showing statute for “[c]yber-bullying,” and providing an enhancement when the defendant is over the age of eighteen at the time the offense was committed); id. § 15A-1340.23 (2013) (listing the maximum incarceration punishment for Class 1 misdemeanor).
N.D. Cent. Code § 12.1-17-07 (2013) (showing statute for “[h]arassment,” and providing an enhancement when there is “a threat to inflict injury on any person, to any person’s reputation, or to any property”); id. § 12.1-32-01(5) (2019) (listing the maximum incarceration punishment for a Class A misdemeanor).
Ohio Rev. Code Ann. § 2917.21 (West 2016) (showing statute for “[t]elecommunications harassment”); id. § 2929.24(A)(1) (West 2011) (listing the maximum incarceration punishment for a first degree misdemeanor).
Okla. Stat. tit. 21, § 1172 (2019) (showing statute for “[o]bscene, threatening or harassing telecommunication or other electronic communications”); id. § 10 (1910) (listing the maximum incarceration punishment for a misdemeanor).
Or. Rev. Stat. § 166.090 (2005) (showing statute for “[t]elephonic harassment”); id. § 161.615(2) (2017) (listing the maximum incarceration punishment for a Class B misdemeanor).
18 Pa. Cons. Stat. § 2709 (2015) (showing that statute for “[h]arassment” with “[c]yber harassment” only applies when the victim is a child); 30 Pa. Cons. Stat. § 923(a)(5) (2012) (listing the maximum incarceration punishment for a third-degree misdemeanor).
11 R.I. Gen. Laws § 11-52-4.2 (2008) (showing statute for “[c]yberstalking and cyberharassment,” and listing the maximum incarceration punishment for a misdemeanor).
S.C. Code Ann. § 16-3-1700 (2013) (showing statute for “[h]arassment in the second degree”); id. § 16-3-1710 (listing the maximum incarceration punishment for a harassment in the second degree as a misdemeanor).
S.D. Codified Laws § 49-31-31 (2022) (showing statute for “[c]ontact by telephone or other device—[t]hreatening, harassing, or misleading contacts”); id. § 22-6-2(1) (2005) (listing the maximum incarceration punishment for a Class 1 misdemeanor).
Tenn. Code Ann. § 39-17-308 (2016) (showing statute for “[h]arassment,” and providing an enhancement “[i]f the victim of the person’s offense died as the result of the offense”); id. § 40-35-111(b)(5) (2010) (listing the maximum incarceration punishment for a Class E felony).
Tex. Penal Code Ann. § 42.07 (West 2021) (showing statute for “[h]arassment,” and providing an enhancement when “the offense was committed against a child under 18 years of age with the intent that the child: (i) commit suicide; or (ii) engage in conduct causing serious bodily injury to the child”); id. § 12.21(2) (West 1994) (listing the maximum incarceration punishment for a Class A misdemeanor).
Utah Code Ann. § 76-9-201 (West 2021) (showing statute for “[e]lectronic communication harassment”); id. § 76-3-204(2) (West 2019) (listing the maximum incarceration punishment for a Class B misdemeanor).
Vt. Stat. Ann. tit. 13, § 1027 (2014) (showing statute for “[d]isturbing peace by use of telephone or other electronic communications,” and listing the maximum incarceration punishment for the offense).
Va. Code Ann. § 18.2-152.7:1 (2022) (showing statute for “[h]arassment by computer”); id. § 18.2-11(a) (2000) (listing the maximum incarceration punishment for a Class 1 misdemeanor).
Wash. Rev. Code § 9A.90.120 (2022) (showing statute for “[c]yber harassment”); id. § 9.92.020 (2011) (listing the maximum incarceration punishment for a gross misdemeanor).
W. Va. Code § 61-3C-14c (2018) (showing statute for “[c]yberbullying or specific acts of electronic harassment of minors,” and listing the maximum incarceration punishment for a misdemeanor).
Wis. Stat. § 947.0125 (1995) (showing statute for “[u]nlawful use of computerized communication systems,” and providing an enhancement for various forms of more serious harassment); id. § 939.51(3)(b) (1997) (listing the maximum incarceration punishment for a Class B misdemeanor).
Wyo. Stat. Ann. § 6-2-506 (2022) (showing statute for “[s]talking,” providing an enhancement when “[t]he defendant caused seriously bodily harm to the victim . . . in conjunction with the offense,” and listing the maximum incarceration punishment for a felony).