This essay provides a sustained constitutional critique of the growing body of laws criminalizing cyberbullying. These laws typically proceed by either modernizing existing harassment and stalking laws or crafting new criminal offenses. Both paths are beset with First Amendment perils, which this essay illustrates through 'case studies' of selected legislative efforts. Though sympathetic to the aims of these new laws, this essay contends that reflexive criminalization in response to tragic cyberbullying incidents has led law-makers to conflate cyberbullying as a social problem with cyberbullying as a criminal problem, creating pernicious consequences. The legislative zeal to eradicate cyberbullying potentially produces disproportionate punishment of common childhood wrongdoing. Furthermore, statutes criminalizing cyberbullying are especially prone to overreach in ways that offend the First Amendment, resulting in suppression of constitutionally protected speech, misdirection of prosecutorial resources, misallocation of taxpayer funds to pass and defend such laws, and the blocking of more effective legal reforms. This essay attempts to give legislators the First Amendment guidance they need to distinguish the types of cyberbullying that must be addressed by education, socialization, and stigmatization from those that can be remedied with censorship and criminalization.
Lyrissa Lidsky & Andrea Pinzon Garcia, How Not to Criminalize Cyberbullying, 77 Mo. L. Rev. 693 (2012), available at http://scholarship.law.ufl.edu/facultypub/173