News Item: Colorado Supreme Court Strikes Down Electronic Harassment Ban
Three Speech-Related Crimes:
Cyberbullying
Using electronic communication tools to bully someone
Cyber- or Electronic Harassment
Online harassment (suggests a pattern of behavior more extensive than cyberbullying)
Cyberstalking
Harassment using electronic communications that creates fear of physical harm or injury
Thanks to social media, these behaviors are increasingly a global problem
Growing concern about rise in electronic dating violence among adolescents
Electronic harassment includes messaging, calling and sending other items to illicit compliance via intimidation and fear tactics; electronic coercion is pressuring a partner to share sexual or illicit messages, pictures or videos; and electronic monitoring is the viewing, listening or reading of messages, images or videos of one’s partner.
“We found that at age 12, youth are at risk of engaging in all three forms of electronic dating violence that we studied, and that between 9th and 10th grade—when youth are 15 to 16 years old—the risk of all three domains increases substantially. But we see that risk becomes somewhat constant or perhaps even declines after age 16,” said Elyse Thulin, a doctoral candidate at U-M’s School of Public Health, noting that more research is needed to understand the undercurrents of this decline.
Connected homes and the Internet of Things is increasing the potential for this type of behavior
These types of behavior can cause or contribute to serious harm for victims, up to and including suicide
Children can be perpetrators as well as victims
Responses and Solutions
Statutory
Most states have amended their relevant statutes to include the use of electronic communications to commit these crimes
Some states have adopted statutes specifically prohibiting cyberbullying, cyberharassment, and cyberstalking
In some states, these behaviors can be either a misdemeanor or a felony
With respect to speech, such statutes are a restriction of First Amendment freedoms and as such, are subject to strict scrutiny by the courts
In some instances, courts have struck down language in these statutes on the grounds that the phrases or terms used are “unconstitutionally vague and overbroad”
Colorado: Supreme Court struck down phrase “intended to harass”
Texas: Appellate court struck down a ban on online speech “intended to and reasonably likely to annoy”
Corporate
Terms of Service
Site Behaviors
Mute/Block
Limiting Responses
Unmentioning
Litigation
Lawsuits seeking damages for intentional infliction of emotion distress, invasion of privacy, etc.
From a 1975 decision by the Colorado Supreme Court:
Indeed, a fundamental purpose of free speech in our system of government is to debate ideas. These debates may be vigorous and high-minded but may at times devolve into vituperative attacks. “Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects.” But as the Bolles court aptly observed, if such speech could be restricted, “the protection of the First Amendment would be a mere shadow.”