In a lengthy post at PrawfsBlawg, University of Florida lawprof  Lyrissa Lidsky takes on some issues of “CyberOverbreadth” with the flavor of the month crime, cyberbullying.  To the greatest extent I’ve yet seen on the part of an academic, she tries to wind her way through the politically correct position of being against it while simultaneously considering is First Amendment implications.

With regard to criminal law, a meaningful response to cyberbullying–one that furthers the objectives of deterrence and punishment of wrongful behavior–would be precise and specific in defining the targeted conduct. A meaningful response would carefully navigate the shoals of the First Amendment’s protection of speech, acknowledging that some terrible behavior committed through speech must be curtailed through educating, socializing, and stigmatizing perpetrators rather than criminalizing and censoring their speech.

Sure, it’s not much, but it’s a whole lot more than other scholars have acknowledged.

Any attempt to use criminal law to address the social phenomenon should probably start with the jurisprudential question of which aspects of cyberbullying are best addressed by criminal law, which are best addressed by other bodies of law, and which are best left to non-legal control. Once that question is answered, criminalization of cyberbullying should proceed by identifying the various forms cyberbullying can take and then researching the specific First Amendment constraints, if any, on criminalizing that form of behavior or speech. This approach should lead legislators to criminalize only particularly problematic forms of narrowly defined cyberbullying, such as . [This gaping hole is in Lidsky’s post. Why she left the particularly problematic forms unsaid may never be known.]

While introducing narrow legislation of this sort may not be as satisfying as criminalizing “adolescent cruelty,” it is far more likely to withstand constitutional scrutiny and become a meaningful tool to combat serious harms.

While we’re still left scratching our head at what exactly is meant by cyberbullying, no one as yet being capable of defining it or willing to go out on a limb to try, we at least obtain some clue from the description of these laws as “criminalizing ‘adolescent cruelty’,” the laws against which must become a “meaningful tool to combat serious harms.”

It goes without saying that all of this is a backlash to a number of child suicides attributed to bullying.  Whether that’s accurate, or at least complete, is hardly clear, but the mythology has already grown to epic proportions, much like the child-predator claims of wilding back during the Central Park Jogger case, only to learn years later that it was all nonsense.  The lesson of criminalize first, and get the facts second, has been well-learned, even in the Academy.

Proposals to criminalize cyberbullying often seem to proceed from the notion that we will know it when we see it. In fact, most of us probably will: we all recognize the social problem of cyberbullying, defined as engaging in electronic communication that transgresses social norms and inflicts emotional distress on its targets. But criminal law cannot be used to punish every social transgression, especially when many of those transgressions are committed through speech, a substantial portion of which may be protected by the First Amendment.

While less than a complete recognition of the emptiness of the definition, this is a decent start.  Proponents of anti-bullying laws, and most notably the ones who have adopted the religion of CyberBullying, seek to use criminal laws to punish “every social transgression” that “inflicts emotional distress on its targets.”  They desire a happy Utopia, where no child is ever made to feel badly, and they mean to do it by the imposition of criminal punishment.

While Lidsky falls short of recognizing that hurt feelings shouldn’t be criminalize because it neither provides a basis for a crime nor a rational way to define criminal conduct, at least she recognizes that it impinges on speech in ways that would gut First Amendment protections.  Free speech has become the first casualty in the war against hurt feelings in the Academy, and Lidsky’s stance puts her at odds with many of her colleagues.

Yet, to the extent she’s staked out a rational and doctrinally sound position, she backtracks in her response to comments.

For example, one relevant (and terrible) difference between cyberbullying and offline bullying is that it creates a permanent record of the victim’s abuse that carries into her adult life. It cuts off the victim’s hope that she can ever escape her tormentors. This is something First Amendment doctrines should account for, perhaps by creating some sort of “take-down” remedy. However, existing doctrine stands in the way of implimenting such a “take-down” and must be rethought. We could also broaden existing remedies for invasion of privacy or intentional infliction to better account for this type of harm. But remedies such as these have to be carried out at the level of individual doctrines.

I suppose it makes me an incrementalist, but I don’t agree that we need to “rethink First Amendment doctrine as applied to cyberspace.” Instead, we need to rethink various First Amendment doctrines as applied to certain behaviors or speech abuses that occur within cyberspace, including, but not limited to, cyberbullying.

While acknowledging that attempts at criminalizing cyberbullying suffer from overbreadth now, it appears that she supports the creation of exceptions on an ad hoc basis to fix the roadblocks the First Amendment creates in reaching Nirvana.  Notably, a “take-down” remedy of the sort that’s  gained traction in the European Union under its “right to be forgotten” regime is a favorite.

To the extent any law profs have offered anything to suggest that we not create a slew of laws to turn children into criminals because someone’s feelings were hurt, Lidsky’s tepid support of the First Amendment is about as good as it gets. Unfortunately, it’s not much, and appears to collapse as soon as anyone makes her feel bad about position.  Ironic, no?