This article first appeared in the St. Louis Beacon, June 11, 2012 - The Missouri Supreme Court's decision striking down part of Missouri's cyberbullying law leaves few if any instances in which the law can be applied, legal experts say.
Lyrissa Lidsky, a First Amendment expert, posted a detailed blog analyzing the Missouri Supreme Court's May 29 ruling striking down part of the law and upholding another part. The law was passed in 2008 in reaction to the Megan Meier MySpace suicide. Meier hanged herself in 2006 after having been harassed in MySpace posts orchestrated by Lori Drew, the mother of a former friend of the teen's. The tragedy received national publicity, led to the unsuccessful prosecution of Drew and also sparked passage of cyberharassment laws, like Missouri's.
The Missouri Supreme Court unanimously found that one provision of the new law violated the First Amendment because it was overbroad. That part makes it a crime to, "knowingly make(s) repeated unwanted communication to another person."
High Court Judge Ray Price illustrated the everyday instances where that language could criminalize protected speech. He wrote: " ... individuals picketing a private or public entity would have to cease once they were informed their protestations were unwanted. A teacher would be unable to call a second time on a student once the pupil asked to be left alone. Salvation Army bell-ringers collecting money for charity could be prosecuted for harassment if they ask a passerby for a donation after being told, 'I’ve already given; please don’t ask again.' An advertising campaign urging an elected official to change his or her position on a controversial issue would be criminalized."
But the court decided that another provision of the law might be constitutional if its terms were narrowly construed to apply only to speech that is not protected by the First Amendment, such as so-called "fighting words."
That provision makes it a crime to "without good cause" engage in an act "with the purpose to frighten, intimidate, or cause emotional distress to another person" of average sensibilities." Price said that the use of the phrase "good cause" meant the law could not apply to constitutionally protected expression because it was all conducted with good cause.
Price went on to narrow the law by saying the court would read it to apply only to "acts that cause immediate substantial fright, intimidation, or emotional distress." In other words, it would not apply to a trick-or-treater on Halloween who scared a person with a costume, Price wrote.
Lidsky, the First Amendment expert, wrote that even though the court upheld one part of the law, "the victory is probably a pyrrhic one for advocates of broad laws to address bullying behaviors. The court apparently saved the constitutionality ... by adopting a ridiculously strained interpretation of it; under this interpretation, it only covers fighting words -- those "which by their very utterance inflict injury or tend to incite an immediate breach of peace."
Lidsky points out that no one has ever been successfully prosecuted for fighting words since the Supreme Court case of Chaplinsky v. New Hampshire 70 years ago first used that term. Lidsky also pointed out that courts have construed fighting words to apply only to face-to-face remarks that threaten immediate harm - something that may not be possible in cyberspace.
The Missouri case did not involve cyberharassment. It involved a man who made repeated, harassing telephone calls to his ex-wife. The Supreme Court sent the case back to the lower court to apply the decision to the facts.