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Texas’ Overbroad Cyberbullying Bill Could Silence Unpopular Speech

DEEPLINKS BLOG
February 1, 2017

Online harassment is a serious problem. But censorship is not the solution. Thus, EFF has long opposed anti-harassment rules that would chill and punish lawful online speech. And courts have long struck down such laws for violating the First Amendment.

EFF now opposes a new Texas bill that would target online harassment of youths. Students most in need of protection—including those expressing unpopular opinions or documenting sexual assault—could find themselves facing disciplinary action or even expulsion. While we sympathize with the intention of the authors, trampling on fundamental free speech rights isn’t the solution to harassment.

This bill has many flaws, but we emphasize four in our letter to the Texas legislature.

School Discipline

The Texas bill would expand the power of school officials to discipline youths for “cyberbullying.” The bill’s vague and overbroad definition of that term would include a single email from one student to another that “infringes on the rights of the victim at school.” Those “rights” are not defined.

School officials might use this new power to silence unpopular speech by the very students that some legislators may wish to protect. Suppose that in a current events class, one student said they oppose gay marriage or Black Lives Matter protesters. Suppose further that in response, the leader of that school’s Gay-Straight Alliance or NAACP chapter sent the first student a critical email that concluded, “I wish you would keep your opinion to yourself.” School officials might determine that the second student’s email infringed on the first student’s right to speak in class, and thus impose discipline for sending the email.

School Expulsion

The bill authorizes expulsion from school of a student who engages in bullying that encourages another student to commit suicide. This rule would not take into account the expelled student’s intentions, the consequences of their actions, or how a reasonable student would have interpreted the expelled student’s words.

Suppose in the hypothetical above that the second student’s email had said, “Why don’t you jump off a bridge so we don’t have to listen to your opinions?” The student who sent the email could be expelled, though they meant “jump off a bridge” rhetorically, the recipient did not attempt any self-harm, and the rest of the student body, familiar with the students involved, would have known the suggestion was not serious.

The bill also authorizes expulsion of a student who releases intimate visual material of another student. The expelled student might have had no previous relationship with the depicted student; for example, they may have forwarded along an image they received from someone else. The expelled student may have intended no harm, caused no harm, or had consent from the depicted person. The released images might be newsworthy; for example, the victim of a sexual assault might release images of their assailant’s crime. The bill authorizes expulsion without regard to any of these considerations.

It bears emphasis that school expulsion is highly disruptive to the educational and other needs of expelled children. And all too often, expulsion and other school discipline disproportionately impacts minority and LGBT youths.

Unmasking Anonymous Bloggers

The bill authorizes subpoenas to investigate potential legal claims arising from any undefined “injury” to a minor before a lawsuit is ever filed. This new process would threaten the First Amendment right to communicate anonymously on the Internet. This right is especially important for people who belong to unpopular groups or who express unpopular messages, who might otherwise stay silent rather than risk retaliation.

In the hypothetical above, suppose the second student anonymously blogged about the classroom comments of the first student, and concluded, “only a jerk would say this in class.” The first student might try to use the bill’s pre-suit subpoena process to unmask the anonymous blogger, based on the pretext of a highly dubious defamation claim. The risk of unmasking would silence many anonymous speakers.

Defending Against a Damages Lawsuit

The bill would authorize civil lawsuits against a student who sent an email to another student that encouraged them to commit suicide. Again, this is far too broad, because it does not take into account the speaker’s intentions, the message’s consequences, and the response of a reasonable person to the message.

Moreover, the bill would impose damages liability upon the parents of a minor who sent a prohibited email, whether or not the parents had anything to do with the email. Most parents do not require their adolescent children to obtain parental permission before sending emails, text messages, and posts to social media. Nor should they.

Conclusion

Any new laws against online harassment must be carefully and narrowly drawn to ensure they do not inadvertently harm the people they are intended to protect, and do not chill or punish lawful online speech. The Texas cyberbullying bill fails both of these tests.

Read EFF’s full letter to the Texas legislature.

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