Cellphones and the Internet have not only altered the way we communicate, they have changed the way we can injure one another. The telecommunications revolution has created the capability of causing far greater harm to children than the bullying many of us remember from when we were young. The omnipresent nature of the Internet means that there is no place for the child who is victimized to hide. Not even one's home is a safe haven when repeated, vicious attacks appear on Facebook and Twitter.
In April 2012, a
In our quest to prevent electronic assaults on children, however, it is critical that the timeless importance of freedom of speech be fully protected. Any attempt to prevent cyberbullying must ensure that the Internet remains free for full and unfettered public discussion.
Fortunately, it is possible to find a balance. Both houses of the Maryland legislature have passed, and sent to Gov.
The Supreme Court has repeatedly held that threats of violence, such as those banned by Grace's Law, are outside the protection of the First Amendment. So called "true threats," in which a speaker communicates a serious expression of an intent to commit an act of violence against a particular individual, are simply not a part of the American marketplace of ideas. Intimidation, defined as directing a threat against others with the intent of placing them in fear of their life or safety, is viewed as abusive conduct and is also not shielded by the First Amendment.
Unlike "true threats," some speech that causes serious emotional distress has been found to be constitutionally protected. In 1988, the Supreme Court ruled that Hustler magazine could not be sued for a crude and nasty parody it had published of television evangelist Reverend Jerry Falwell. The court stated that in order for debate on public issues to be uninhibited, people who thrust themselves into the public limelight must be willing to subject themselves to "vehement, caustic, and sometimes unpleasantly sharp attacks."
In 2011, the court extended this protection for abusive speech to the Westboro Baptist Church, which had publicized its opposition to allowing homosexuals to serve in the military by picketing at the funeral of Matthew Snyder, a soldier from
The court recognized, though, that speech of a private matter concerning private individuals should be treated differently than the Westboro pickets and the Hustler advertisement. Protecting purely private people from the injuries caused by purely private speech, the court said, poses "no threat to the free and robust debate of public issues" and creates "no potential interference with a meaningful dialogue of ideas."
"Grace's Law" does not prevent or penalize the public discussion of matters of public concern. Its scope is limited to minors, the most vulnerable segment of our population. It has long been understood that laws protecting children should be viewed with special solicitude. Moreover, the law would not penalize the random comment or even the occasional insult that is a part of daily life. Rather, the law's coverage is limited to those who deliberately engage in an ongoing course of conduct that is motivated by a proven desire to cause a child to suffer serious emotional distress.
Grace's Law is an important step in providing needed protection for the children of our state, while respecting and protecting the First Amendment rights of Maryland citizens.
Michael I. Meyerson is the Wilson H. Elkins Professor of Law and Piper & Marbury Faculty Fellow at the