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Cyberbullying Bill Could Ensnare Free Speech Rights

A bill introduced in the House of Representatives last month by Rep. Linda Sanchez, D-Calif., is designed to prevent cyberbullying, making it punishable by a fine and up to two years in prison.

But at least one blogger is calling the Megan Meier Cyberbullying Prevention Act the "Censorship Act of 2009" -- and many free speech advocates say its language is too broad and that it would act as judge and jury to determine whether there is significant evidence to prove that one person "cyberbullied" another.

"We have existing harassment statutes in all 50 states that already cover this problem," says Parry Aftab, a lawyer and Internet security expert who's at the forefront of the anti-cyberbullying movement. "We don't need Linda Sanchez's law."

Even Sanchez's attempt to define the term "cyberbullying" poses problems, said UCLA law professor Eugene Volokh.

"The bill defines it as 'using electronic means to support severe, repeated and hostile behavior,' but what does 'severe, hostile and repeated behavior' mean?" he asked.

"I've written articles opposing the bill that have appeared online. That's electronic and -- because I've written a few of them -- repeated. I was also severe and hostile in my criticisms. Under her law, I can now go to jail."

And so could many political commentators and Web bloggers who earn their keep by being confrontational and inflammatory. A TV host like MSNBC's Keith Olbermann, who's been openly and repeatedly hostile to former Vice President Dick Cheney on his Web site, would not be safe from prosecution, the analysts say.

Even advocates of child safety on the Internet say the bill is impractical, at best.

"Even if you wanted to, you can't legislate against meanness," said Larry Magid, co-director of ConnectSafely.org. "It's contextual. If I call you fat, maybe I was bullying, or maybe I was concerned about your health, or maybe it was a relatively innocuous slight."

The bill's critics also note that the law is intended to protect minors from minors, but that doesn't show up in its language.

As written now, the bill would also apply to adults, says John Morris, general counsel for the Washington, D.C.-based Center for Democracy and Technology.

And, he said: "It's not clear from any of the data that cyberbullying among adults is an issue."

Morris said cyberbullying is a local problem best solved at the local level.

"Most research suggests cyberbullying is most appropriately handled with more education, in school. It's hard to imagine how federalizing the matter accomplishes this," he said.

The bill is named after Megan Meier, the Missouri 13-year-old who committed suicide in 2006 after a classmate's mother, Lori Drew, pretended to be a teenage boy and tormented her on the MySpace social-networking site.

Drew was convicted in November of three misdemeanors in federal court and awaits sentencing. She faces up to three years in prison.

But using Megan Meier as a proxy for the typical cyberbullying victim is a mistake, some experts say.

"Megan Meier had been taking psychotropic drugs," said Aftab, who founded WiredSafety.org and Wiredkids.org. "She was emotionally fragile."

"This was a rare case, an anomaly," agrees Justin Patchin, co-founder of Cyberbullying.us and associate professor of criminal justice at the University of Wisconsin-Eau Claire. "Megan shouldn't be the basis of a new law."

Marsha Catron, communications director for Congresswoman Sanchez, argued otherwise.

"Megan is the right poster child for this. She was happy. She had plans for the future. Nothing suggested she was going to kill herself until Mrs. Drew created that fake MySpace page," Catron said.

The problem of cyberbullying clearly exists. A 2006 study in the journal Pediatrics reported that the incidence of cyberbullying among teens and pre-teens had increased by 50 percent in the previous five years, and 38 percent of those affected reported being "very or extremely upset or afraid because of the incident."

In an article defending her bill on the Huffington Post, Rep. Sanchez wrote that "a young person exposed to repeated, severe and hostile bullying online is at risk for depression and suicide."

She cited a U.S. Secret Service study that shows bullying puts kids at risk for becoming perpetrators of school violence, such as those behind the Columbine massacre, and said that her legislation would no longer let cyberbullies hide being the "emboldening anonymity of the Web."

Her spokeswoman, Catron, was even more emphatic.

"We need this law," Catron told FOXNews.com "Anyone who feels differently greatly underestimates the importance social networks play in teenage lives."

But even if the bill makes it through Congress, most of the experts interviewed for this article were uncertain it would hold up in court.

"Not only is Sanchez's bill unconstitutional," Volokh said, "but with our existing laws, criminal harassment (as opposed to sexual) is not a well defined term. Definitions vary from state to state, but generally it's threatening, persistent communication. There are no anti-mind-game-harassment laws out there."