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Does Colorado’s Cyberbullying Bill Violate the First Amendment?

www.endcyberbullying.org

Recently, there have been few objectors against Colorado’s recent efforts in criminalizing cyberbullying on the basis of legal grounds. Professor Eugene Volokh, who teaches at UCLA School of Law and have written extensively and taught the First Amendment, and Mike Krause, Vice President of Operations, and Director of Justice Policy Initiative at the Independence Institute, a free market think tank in Denver, are such objectors. They claim that although the bill was “undoubtedly well-intended, the bill as written is an unconstitutional restriction on protected speech,” the bill will violate the first amendment of the US Constitution due to its phrasing.

They believe that although the punishments for making credible threats is sensible, the ban on intentionally causing “serious emotional distress” part of the bill is “ill-defined, and wide open to arbitrary enforcement,” and that “some speech is constitutionally protected even if it is intended to cause “serious emotional distress.””

In their article, they cite possible scenarios such as “a 17-year-old girl who learns that her 17-year-old boyfriend was cheating on her, and harshly condemns him in Facebook posts, hoping that her friends will socially ostracize him,” as examples of protected speech which might cause distress. In the court of law, the example may be seen as “likely to cause serious emotional distress” and ruled as criminal conduct under the bill, despite the fact that it is speech protected by the First Amendment.

“We realize that people are worried about teenagers taunting one another online. In a few situations (fortunately, a tiny fraction of all taunting incidents) such taunting has contributed to teenagers’ suicide. But we’re not sure there’s any way of clearly defining which distressing speech about minors should be criminal and which shouldn’t be — any more than there’s a way of clearly defining, for instance, which emotionally cruel romantic breakups (a form of cruelty that has at times also led to suicide) should be criminal,” stated the authors.