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SPOTLIGHT
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Criminalizing online insults a slippery slope

Published on -12/11/2012, 11:06 AM

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Does anybody remember from their school days that a student ever went to jail for scrawling a slur or insult against a teacher or a janitor on a bathroom wall?

Far more likely, the juvenile perpetrator either escaped punishment or, if identified, spent time scrubbing away the offensive scribble.

Sure, sometimes real school threats brought police and perhaps prosecutors into play. In those cases, laws on the books for decades were brought to bear against assault, harassment or intimidation. As for slander, lawsuits could repair damaged reputations.

So why is it different when the wall is "virtual" but the scrawl is the same?

At issue is a new North Carolina law that took effect Dec. 1 that strengthens the state's 3-year-old cyberbullying statute. It's intended to provide extra protection to school employees from online defamation.

The law makes it a crime for students to use a computer with "the intent to intimidate or torment a school employee." (That phrase alone raises First Amendment concerns because it's vague.) As the Associated Press reported, criminalized actions aimed at school employees include posting a fake online profile, signing up a teacher at a pornographic website, and "making any statement, whether true or false, likely to provoke someone else to stalk or harass a school worker."

Overall, the law has the worrisome potential to punish wayward speech with jail time. Not to mention that it ignores effective remedies already in place.

Certainly no one should be subject to harassment or defamation. But existing school rules deal with speech that is disruptive or insulting, and existing libel and slander laws empower victims of more serious attacks to restore their reputations.

Criminalizing speech that falls short of "true threats" of violence raises constitutional concerns about punishing ideas with prison time. Poorly worded and vague laws invite uneven application and misunderstanding. And providing that an online posting of accurate information could be criminal conduct if it spurs someone else to action invites prosecutorial mischief.

The North Carolina statute's wording suggests no actual linkage must occur between the speaker and a stalker's activity -- just a likelihood that it might result in stalking at some unspecified time.

Could a statute of similar ilk have been used to prosecute -- or simply intimidate -- those at Penn State who posted the results of an investigation or made online comments critical of how university officials handled the Paterno-Sandusky sex scandal?

North Carolina ACLU official Sarah Preston told the AP: "The reality is that I'm sure students have been complaining about their teachers for as long as there have been students and teachers. They've been writing it on bathroom stalls or carving it into desks or whatever. Just because they post it online doesn't make it suddenly any less protected."

Preston also noted that in some cases, 16-year-olds will be treated as adults, and "because they write something stupid on the Internet, they could actually face some jail time" -- as much as 60 days or a $1,000 fine.

The Internet makes it easier to utter slurs or attack the good public image of others, but with nowhere near the anonymity once thought to exist. Then there's the complication of whether parodies -- which have free-speech protection -- run afoul of the new state law.

No educator or anyone else must simply endure or accept damaging attacks on their reputations via the Web or other means. But existing laws have long provided the means of striking back, and have free-speech protections built in.

Unnecessary legislation that likely will not survive a legal challenge neither cures the described ill or comforts the actually afflicted -- and does not draw a proper distinction between speech that deserves First Amendment protection and that which does not.

Gene Policinski is senior vice president and executive director of the Nashville, Tenn.-based First Amendment Center. gpolicinski@fac.org

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