Protection of Children Online: Federal and State Laws Addressing Cyberstalking, Cyberharassment, and Cyberbullying

Protection of Children Online:
Federal and State Laws Addressing
Cyberstalking, Cyberharassment, and
Cyberbullying
September 5, 2008
Alison M. Smith
Legislative Attorney
American Law Division

Protection of Children Online: Federal and State Laws
Addressing Cyberstalking, Cyberharassment,
and Cyberbullying
Summary
While Congress, under the Commerce Clause, has authority to regulate the
Internet, Internet “harassment” presents new challenges for legislators in terms of
defining and prosecuting such activity. Definitions for these terms vary based upon
jurisdiction. Internet harassment usually encompasses “cyberstalking,”
“cyberharassment,” and/or “cyberbullying.” If one were to categorize these offenses
based on danger or greatest potential harm, cyberstalking would be the most
dangerous, followed by cyberharassment and then cyberbullying. Generally,
cyberstalking includes a credible threat of harm, while the other two do not.
Cyberharassment and/or cyberbullying may cause embarrassment, annoyance, or
humiliation to the victim. Some individuals use the terms cyberharassment and
cyberbullying interchangeably, while others reserve the term cyberbullying to
describe harassment between minors, usually within the school context.
While laws that address cyberstalking exist at both the federal and state levels,
the question of how to handle situations that do not involve a credible threat of harm
against minors has drawn congressional interest. Recent high-profile cases involving
teen suicides illustrate the harmful effects of Internet harassment on young people.
To address the problem, H.R. 6123 was introduced on May 22, 2008. This bill would
amend title 18 of the United States Code by making cyberbullying a federal crime
with a punishment of up to two years of imprisonment and/or a fine.
Legislators have traditionally enacted laws prohibiting child pornography, child
luring, and child sexual exploitation. However, Internet harassment potentially causes
emotional harm to its victims as opposed to the physical harm inflicted by the
aforementioned activities. In addressing these concerns, legislators strive to maintain
a balance between enacting statutes broad enough to cover undesirable behavior,
while simultaneously narrow enough to prevent infringement upon an individual’s
right to express oneself under the First Amendment.
The First Amendment protects certain forms of speech, but this protection is
limited within the school environment. While school administrators have more
flexibility in disciplining children whose speech disrupts the learning environment,
this flexibility does not cover all forms of Internet harassment. As Internet
harassment is a relatively new phenomenon, courts are just beginning to determine
the constitutionality and scope of these school policies and statutes. This report
discusses Internet crimes, such as cyberbullying, cyberharassment, and cyberstalking,
along with the limitations of such laws in the current environment. It will be updated
as events warrant.

Contents
In troduction ......................................................1
Background ......................................................2
Congressional Authority to Legislate Internet Activities................2
Selected Federal Internet Laws...................................2
Use of Interstate Facilities to Transmit Information
About a Minor........................................4
Child Luring..............................................4
Internet Harassment................................................5
Cyberstalking .................................................5
Cyberharassment ..............................................8
Federal Telephone Harassment Statute.........................8
State Cyberharassment Statutes...............................9
Cyberbullying ................................................10
Constitutional Concerns and Considerations............................12
First Amendment: Freedom of Speech............................13
True Threats.............................................13
Freedom of Speech Within the School Context..................15
Fourteenth Amendment: Due Process.............................20
Conclusion ......................................................23
List of Tables
Table 1. Cyberharassment Statutes...................................25
Table 2. Cyberstalking Statutes......................................27
Table 3. Cyberharassment Statutory Language, by State...................29

Protection of Children Online:
Federal and State Laws Addressing
Cyberstalking, Cyberharassment,
and Cyberbullying
Introduction¹
Federal and state laws have always played a role in protecting minors from
criminal victimization. For example, Congress has enacted laws dealing with child
pornography, child luring, and child sexual exploitation. However, given its
immediacy, anonymity, and accessibility, the Internet offers a forum, through social
networking sites,² for harassment and other social ills committed against minors. The
Internet’s nuances present new challenges for federal and state legislators and law
enforcement personnel responsible for defining and prosecuting criminal use. This
is especially true with the relatively new crime of Internet “harassment.” The term
Internet harassment usually encompasses “cyberstalking,” “cyberharassment,” and/or
“cyberbullying.” These activities, when committed against minors, may cause
emotional harm. Recent high-profile cases involving teen suicides demonstrate the
potentially severe consequences of this emotional harm. As such, legislators are faced
with determining how to handle the problem.
Various laws, not specific to minors, govern traditional crimes such as stalking
and harassment, which generally include a threat of harm. These laws generally
criminalize unlawful conduct that fails to rise to the level of assault or battery.³
Recognizing that the Internet can be used to stalk or harass individuals, Congress and
some states have amended “traditional” stalking and harassment statutes to include
Internet activity. However, these statutes are generally inapplicable in situations in
which minors suffer emotional harm due to embarrassment or humiliation. When, if
ever, should criminal sanctions be imposed for these incidents? Should legislators
amend traditional stalking and harassment statutes to cover these situations? Or

¹ Todd Garvey, a Law Clerk in the American Law Division of CRS, assisted in the
preparation of this report.
² Social networking sites are virtual communities where people convene to chat, instant
message (IM), post pictures, share stories, etc. Currently, there is a myriad of social
networking sites that are topic specific, i.e., individuals interested in certain sports or have
certain medical issues and/or concerns. A social network is basically a huge community of
people broken down into smaller communities where you find people of like minds or
interests.
³ Generally, assault is defined as an attempt to cause or purposely, knowing, or recklessly
causing bodily injury to another. See, e.g., T^EXASP^ENALC^ODE § 22.01.

should legislators create new crimes covering such activity? Should such activity
conducted by a neighbor, for example, be prosecuted on the federal level because the
Internet was used? Or should prosecution of such activity remain at the state level?
These are just some of the questions legislators may consider in addressing the
problem of Internet harassment of children. While these policy considerations are
noteworthy, this report focuses on the applicable constitutional constraints legislators
may consider in drafting legislation in this area.
Background
Congressional Authority to Legislate Internet Activities
Generally, states assert jurisdiction over law enforcement authority within their
borders. However, Congress may legislate in the state law enforcement arena under
certain constitutionally permissible circumstances. For example, Article I, Section
8, Clause 4 of the United States Constitution authorizes Congress to “regulate
Commerce with foreign Nations, and among the several States.” There are three
categories of activities subject to congressional regulation under the Commerce
Clause. Congress may regulate the use of the channels of interstate commerce,⁴ or
persons or things in interstate commerce, although a threat may come only from
intrastate activities.⁵ Finally, Congress may regulate those activities having a
substantial relation to interstate commerce (i.e., those activities that substantially
affect interstate commerce).⁶ As the Internet is an instrumentality of interstate
commerce, Congress has the power to enact appropriate legislation. Pursuant to this
authority, Congress has enacted laws designed to protect children.
Selected Federal Internet Laws
Congress has enacted several statutes designed to address protection of children
on the Internet. These statutes run the gamut from establishing new crimes (i.e., use
of interstate facilities to transmit information about a minor)⁷ to expanding the scope
of existing crimes (i.e., child luring). In addition, Congress has enacted laws designed
to curtail both the downloading of inappropriate content by children and the
uploading of impermissible personal information from children.⁸

⁴ Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256 (1964)(stating that “the
authority of Congress to keep the channels of interstate commerce free from immoral and
injurious uses has been frequently sustained.”).
⁵ Southern R. Co. v. United States, 222 U.S. 20 (1991)(upholding amendment to the Safety
Appliance Act as applied to vehicles used in intrastate commerce).
⁶ See, United States v. Lopez, 514 U.S. 549, 558-559 (1995)(citations omitted).
⁷ 18 U.S.C. § 2425.
⁸ For an in-depth discussion of these laws, refer to CRS Report 95-804, Obscenity and
Indecency: Constitutional Principles and Federal Statutes, by Henry Cohen.

Child Online Privacy Protection Act (COPPA)/Child Online
Protection Act (COPA)/Children’s Internet Protection Act (CIPA). The⁹
Child Online Privacy Protection Act (COPPA) is directed to the protection of
children less than 13 years of age from operators of commercial websites or online¹⁰
services. COPPA mandates several requirements for sites that either direct their
services to children under the age of 13 or have actual knowledge that their general¹¹
audience site is collecting information from such children. The act applies to
individually identifiable information about children, and requires, among other
things, that sites post a clear notice of their data collection practices on their home
pages and on every page where information is requested.¹²
Another federal statute, the Child Online Protection Act (COPA),¹³ restricts¹⁴
access by minors to materials commercially distributed that are harmful to minors.
However, COPA has never taken effect because a federal district court issued a
preliminary injunction against its enforcement pending trial. The injunction was
affirmed on appeal by the Supreme Court, which, on June 29, 2004, remanded the¹⁵
case for trial. On March 22, 2007, a federal district court found COPA
unconstitutional and issued a permanent injunction against its enforcement.¹⁶ On¹⁷
July 22, 2008, the Third Circuit Court of Appeals upheld the 2007 decision.
Finally, the narrowest statute, the Children’s Internet Protection Act (CIPA),¹⁸
applies only to public libraries and schools and mandates that they employ software¹⁹
filters to restrict access by minors to inappropriate material. CIPA has withstood
challenge to its constitutionality.²⁰

⁹ 15 U.S.C. §§ 6501-6506.
¹⁰ Federal Trade Commission (FTC), How to Comply With The Children’s Online Privacy
Protection Rule, [http://www.ftc.gov/bcp/conline/pubs/buspubs/coppa.htm]. Last visited
June 5, 2008.
¹¹ Id.
¹² Id. COPPA creates an exception for children’s e-mail addresses collected for such uses
as contests, online newsletters, homework help, and online postcards. In addition, COPPA
contains a safe harbor provision for site operators who comply with Commission-approved
self-regulatory industry guidelines.
¹³ 47 U.S.C. § 231.
¹⁴ Id.
¹⁵ American Civil Liberties Union v. Reno, 31 F.Supp.2d 473 (E.D. Pa. 1999), aff’d, 217
F.3d 162 (3d Cir. 2000), vacated and remanded sub nom. Ashcroft v. American Civil Union
Liberties Union, 535 U.S. 564 (2002), aff’d on remand, 322 F.3d 240 (3d Cir. 2003), aff’d
and remanded, 542 U.S. 656 (2004).
¹⁶ American Civil Liberties Union v. Gonzales, 478 F.Supp.2d 775 (E.D. Pa. 2007).
¹⁷ American Civil Liberties Union v. Mukasey, 534 F.3d 181 (3^rd Cir. 2008).
¹⁸ P.L. 106-554.
¹⁹ 20 U.S.C. § 9134(f) and 47 U.S.C. § 254(h)(6).
²⁰ United States v. Am. Library Ass’n, 539 U.S. 194 (2003)(upholding CIPA’s condition
(continued...)

Use of Interstate Facilities to Transmit Information About a Minor.
18 U.S.C. § 2425 prohibits the use of a facility of interstate commerce, such as a
computer connected to the Internet, to transmit information about a minor under the
age of 16 for criminal sexual purposes. Individuals convicted under this statute face
a punishment of a fine and/or maximum imprisonment of five years.
Child Luring. In addition to the aforementioned protections, federal and state
legislators have enacted several criminal provisions designed to punish Internet users
who hurt minors physically. Some laws that traditionally protect children, such as
those used to combat child pornography²¹ and luring, have been expanded to apply
to situations where an individual uses the Internet to facilitate the crimes. For
example, “child luring” consists of an adult knowingly and intentionally inducing a²²
child, by means of a computer, to engage in sexual intercourse or sexual conduct.
A majority of states have laws that specifically prohibit electronic luring or
solicitation of minors by computer for the purpose of inducing them to engage in
illegal sexual conduct.²³ On the federal level, child luring is covered by 18 U.S.C.
§ 2422(b), which prohibits the use of any facility or means of interstate commerce
to knowingly persuade, induce, entice, or coerce a minor to engage in criminal sexual

²⁰ (...continued)
imposed on institutions in exchange for government funding).
²¹ Federal child pornography statutes are codified at 18 U.S.C. §§ 2251-2260. For an in-
depth discussion of these laws, refer to CRS Report, 95-804, Obscenity and Indecency:
Constitutional Principles and Federal Statutes, by Henry Cohen.
²² See, e.g., N.M.S^TAT.A^NN § 30-37-3.2(b); N.J.S^TAT.A^NN. § 2C:13-6 and C^AL.P^ENAL
C^ODE § 272(b)(1).
²³ A^LA.C^ODE§§13A-6-110,111;A^LASKAS^TATUTES§11.41-452;A^RI^Z.R^EV.S^TAT.§§13-

3506.01,13-1554;A^RK.S^TAT.§5-27-603;C^AL.P^ENALC^ODE§§272(^B),288.2;C^OLO.R^EV.

S^TAT.§§31-21-1001,-1002,-1003,18-3-306,18-405.4;C^ONN.G^EN.S^TAT.§53^A-90^A;D^EL.
C^ODE.T^IT.11§1112A;F^LA.S^TAT.§847.0135;G^A.C^ODE§16-12-100.2;H^AW^AI^IR^EV.
S^TAT.§§707.756,707.757,708.892;I^DAHOC^ODE§18-1509A;720ILCS5/11-6;I^ND.C^ODE
§35-42-4-6;KYR^EV.S^TAT.§510.155;L^A.R^EV.S^TAT.§14:81.3;M^E.R^EV.S^TAT.T^IT.17-A
§259;9M^D.C^RI^M^I^NA^LL^AWC^ODE§3-324,11-207;M^IC^H.C^OM^P.L^AW^S§§750.145^A,

750.145^D;M^IN^N.S^TAT.§609.352;M^IS^S.C^ODE§§97-5-27,97-5-33;M^O.R^EV.S^TAT.§

546.151;N^EB.R^EV.S^TAT.§28-320.02;N^EV.R^EV.S^TAT.§201.560;N.H.R^EV.S^TAT.§§

649-B:3,649-B:4;N.J.R^EV.S^TAT.§2C:13-6;N.M.S^TAT.§30-37-3.2;N.Y.P^ENALL^AW§

235.22;N.C.G^EN.S^TAT.§14-202.3;N.D.C^ENT.C^ODE§12.1-20-05.1;O^HI^OR^EV.C^ODE§

2907.07;O^KLA.S^TAT.T^IT.21§§1040.13^A,1123;P^A.C^ONS.S^TAT.T^IT.18§6318;R.I.G^EN.

L^AW^S§11-37-8.8;S.D.C^ODI^FI^EDL^AW^S§22-24A-5;T^ENN.C^ODEA^NN.§39-13-528;T^EX.
P^ENALC^ODE§33.021;U^TAHC^ODE§76-4-401;V^T.S^TAT.T^IT.13§2828;V^A.C^ODE§18.2-

374.3;W.V^A.C^ODE§61-3C-14^B;W^IS.S^TAT.§948.075.

activity or prostitution, or to attempt to do so.²⁴ Violators of 18 U.S.C. § 2422(b)
face a punishment of a fine and a minimum imprisonment of 10 years or life.
Internet Harassment
Internet harassment is a new phenomenon that presents a challenge for law
enforcement, legislators, educators, and parents. The term Internet harassment lacks
a uniform definition but usually encompasses cyberstalking, cyberharassment, and/or
cyberbullying. It is worth noting that most cyberstalking and/or cyberharassment
statutes cover both adult and minor victims. If one were to categorize these activities
based on danger or greatest potential harm, cyberstalking would be the most
dangerous, followed by cyberharassment and then cyberbullying. Generally,
cyberstalking includes a credible threat of harm, while the other two do not.
Cyberharassment and/or cyberbullying may cause embarrassment, annoyance, or
humiliation to the victim. Some individuals use the terms cyberharassment and
cyberbullying interchangeably, while others reserve the term cyberbullying to
describe harassment between minors, usually within the school context.
In a criminal context, these activities are predicated on a perpetrator’s desire to
inflict emotional harm, usually in the form of humiliation or embarrassment.
Legislators are faced with several questions in tackling this problem as it pertains to
minors. When, if ever, should individuals be criminally liable for causing
humiliation or embarrassment to another? Should new laws be created to cover such
action? Or, is it sufficient to amend existing laws?
Cyberstalking
Cyberstalking refers to the use of Internet, e-mail, or other electronic
communications to stalk another person.²⁵ A cyberstalker may send repeated,
threatening, or harassing messages. Or a cyberstalker can urge other Internet users

²⁴ 18 U.S.C. § 2422(b) states that
[w]hoever, using the mail or any facility or means of interstate or foreign
commerce, or within the special maritime and territorial jurisdiction of the
United States knowingly persuades, induces, entices, or coerces any individual
who has not attained the age of 18 years, to engage in prostitution or any sexual
activity for which any person can be charged with a criminal offense, or attempts
to do so, shall be fined under this title and imprisoned not less than ten years or
for life.
²⁵ Stalking usually refers to harassing or threatening behavior that is engaged in repeatedly.
California was the first state to criminalize stalking due to several high-profile cases,
including the 1982 attempted murder of actress Theresa Saldana, the 1988 massacre by
Richard Farley, and the 1989 murder of actress Rebecca Schaeffer. Other states passed
stalking statutes, sometimes with varying names such as criminal harassment or criminal
menace. Physical stalking can include following someone, appearing at a person’s home
or job, making harassing telephone calls, leaving written messages and/or objects, and
vandalizing one’s property.

into harassing or threatening a victim by utilizing Internet bulletin boards or chat
rooms. For example, a cyberstalker may post a controversial or enticing message on
a board under the victim’s name, address, phone number, or e-mail address, resulting
in the victim receiving subsequent unwanted responses. Each message, whether from
the actual cyberstalker or others, may have the intended effect on the victim, even
though the cyberstalker’s effort tends to be minimal. Due to the lack of direct contact
between the cyberstalker and the victim, it is sometimes difficult for law enforcement
to identify, locate, arrest and subsequently prosecute the offender.
The anonymity of the Internet also provides new opportunities for cyberstalkers.
A cyberstalker’s true identity can be concealed by using different Internet service
providers (ISPs) and/or by adopting multiple screen names. Anonymity leaves the
cyberstalker in a somewhat advantageous position. Unbeknownst to the target, the
perpetrator could be in another state, around the corner, or in the next cubicle at
work. The perpetrator could be a former friend or lover, a total stranger met in a chat
room, or simply a teenager playing a practical joke.
State and local law enforcement agencies are sometimes hampered by
jurisdictional limitations. A cyberstalker located in a different city or state than the
victim may present more of a challenge for local authorities investigating an incident.
Even if a law enforcement agency is willing to pursue a case across state lines, it may
be difficult to obtain assistance from out-of-state agencies when conduct has been
limited to harassing e-mail messages without the occurrence of actual violence.
Several states have laws that explicitly include electronic forms of
communication within stalking or harassment laws.²⁶ For example, California
legislators amended the state stalking law to expressly include stalking via the
Internet.²⁷ Under California law, a person commits stalking if he or she “willfully,
maliciously, and repeatedly follows or harasses another person and ... makes a
credible threat with the intent to place that person in reasonable fear for his or her
safety, or the safety of his or her immediate family.” The term “credible threat”
includes threats that are (1) “performed through the use of an electronic
communication device, (2) implied by a pattern of conduct or a combination of
verbal, written, or electronically communicated statements.”²⁸ Table 2 provides a
list of states that have enacted cyberstalking statutes.
Federal laws designed to combat cyberstalking exist. For example, 18 U.S.C.
§ 2261A prohibits an individual from using “the mail, any interactive computer

²⁶ These states are Alabama, Alaska, Arizona, California, Connecticut, Delaware, Hawaii,
Illinois, Indiana, Maine, Massachusetts, Michigan, New Hampshire, New York, Oklahoma,
and Wyoming. Arkansas and Maryland have enacted statutes that cover harassment via
electronic communications outside their stalking statutes. State laws that do not include
specific references to electronic communication may still apply to individuals who threaten
or harass others online, but the addition of specific language might make the laws easier to
enforce.
²⁷ C^AL.P^ENALC^ODE § 646.9.
²⁸ Under California law, “electronic communication device” includes telephones, cellular
phones, computers, video recorders, fax machines, and pagers.

service, or any facility of interstate or foreign commerce to engage in a course of
conduct that causes substantial emotional distress to that person or places that person
in reasonable fear of ... death.” However, this statute is inapplicable in situations
where both the victim and perpetrator are in the same state or tribal jurisdiction.²⁹
While this law was amended in 2006 to include “interactive computer service,”
courts have not addressed the term’s scope and applicability to the Internet or
instances of cyberstalking that cause “substantial emotional distress.”³⁰
In addition, 18 U.S.C. § 875 makes it a crime, punishable by up to five years’
imprisonment, to transmit any communication in interstate or foreign commerce
containing a threat to injure another person. Section 875(c) generally applies to any
communication actually transmitted in interstate or foreign commerce.³¹ This statute
has been used primarily against threats conveyed via telephone.³² However, the law
has been expanded to prosecute cyberstalkers. For example, in United States v.
Kammersell,³³ the court found that the term “transmits in interstate commerce,” as
it applied to the offense of making threatening communication, encompassed the
alleged conduct of sending a threatening message via the Internet, despite the fact
that the defendant and victim resided in the same state. The message had been sent
from the defendant’s computer in Riverdale, Utah, processed through the ISP’s
message server in Virginia, and then transferred to the victim’s computer in
downtown Ogden, Utah, a few miles from the defendant’s computer.
Thus, 18 U.S.C. § 875 has been expanded to cover threats transmitted via the
Internet. However, a threat must be one that a reasonable person would take as a
serious expression of an intention to inflict bodily harm and would perceive such
expression as communicated to effect some change or achieve some goal through
intimidation.³⁴ In United States v. Alkhavaz,³⁵ the court found that electronic mail
messages between the defendant and another individual, expressing sexual interest
in violence against third-party women and girls, did not constitute “communications
containing a threat.” Instead, the court concluded the communications were “attempts
to foster a friendship based on shared sexual fantasies.”³⁶
One could argue that one of the limitations of 18 U.S.C. § 875(c) is its
inapplicability to a situation where an individual engages in a pattern of conduct
intended to “harass” or “annoy” another (absent some threat). Also, it is unclear

²⁹ 18 U.S.C. § 2261A.
³⁰ See, Violence Against Women and Department of Justice Reauthorization Act of 2005,
P.L. 109-162 Tit. I, § 113, 119 Stat. 2960 (2006).
³¹ See, United States v. Kammersell, 196 F.3d 1137 (10^th Cir. 1999)(concluding that 18
U.S.C. § 875 is a general intent statute requiring the intent “to effect some change or achieve
some goal through intimidation.”).
³² See, e.g., United States v. Freeman, 176 F.3d 575 (1^st Cir. 1999).
³³ 196 F.3d 1137 (10^th Cir. 1999).
³⁴ See, United States v. Alkhabaz, 104 F.3d 1492, 1495 (6^th Cir. 1997).
³⁵ Id.
³⁶ Id. at 1496.

whether this statute would apply to a situation in which a person harasses another by
posting messages on a “public” bulletin board or in a chat room, encouraging others
to harass or annoy the individual. It would appear that in some of these situations,
a defendant may be prosecuted under the federal telephone harassment statute, 47
U.S.C. § 223.³⁷
Cyberharassment
While cyberstalking laws exist at both the federal and state levels, they are
generally inapplicable in situations referred to as cyberharassment and/or
cyberbullying, depending upon the jurisdiction.³⁸
Federal Telephone Harassment Statute.³⁹ Under federal law, some
instances of cyberharassment may be prosecuted under 47 U.S.C. § 223, which
carries a punishment of a fine and/or imprisonment.⁴⁰ One provision of this statute
makes it a crime, punishable by up to two years in prison, to use a telephone or
telecommunications device⁴¹ to “annoy, abuse, harass, or threaten” any person at a⁴²
dialed number. In 2006, Congress expanded the definition of “telecommunications
device” to include e-mail communications. However, the statute still requires that a⁴³
perpetrator remain anonymous. Although this statute covers both threats and
harassment, it applies only to direct communication between a perpetrator and a
victim. As such, it would be inapplicable in a situation where a person harasses
another person by posting messages on a “public” bulletin board or in a chat room
encouraging others to “harass” or “annoy” another individual. In addition, it is worth
noting that although the statute has been found constitutional, that determination was⁴⁴
made before the statute was amended. In United States v. Bowker, the defendant
made more than 100 anonymous phone calls to a television news reporter during a

³⁷ 47 U.S.C. § 223 was passed in 1934, when the telephone was at the cutting edge of
communication technology. It was subsequently amended in January 2006 to cover e-mail
communications via the Internet. See, Violence Against Women and Department of Justice
Reauthorization Act of 2005, P.L. 109-162 Tit. I, § 113, 119 Stat. 2960 (2006).
³⁸ Some use the term “cyberharassment” and “cyberbullying” interchangeably, while others
use “cyberbullying” to describe situations in which a minor is both the perpetrator and
victim.
³⁹ Courts have found the pre-Internet telephone harassment statute constitutional, but
concluded that it cannot be interpreted to include political or public discourse. See, United
States v. Popa, 187 F.3d 672 (D.C. Cir. 1999).
⁴⁰ 47 U.S.C. § 223(a)(2).
⁴¹ 47 U.S.C. § 223(h)(C)(1)(defining “telecommunication device” as “any device or software
that can be used to originate telecommunications or other types of communications that are
transmitted, in whole or in part, by the Internet ...”). This definition was added by P.L. 109-

162, § 113(a)(3). As such, there is no case law directed toward Internet questions as yet.

⁴² 47 U.S.C. § 223(a)(1)(C).
⁴³ Id.
⁴⁴ 372 F.3d 365 (6^th Cir. 2004), vacated on other grounds, 543 U.S. 1182 (2005).

seven-month period. Many calls were threatening and sexual in nature.⁴⁵ The Bowker
court reasoned that § 223(a)(1)(C) was not overbroad because
[T]he focus of the telephone harassment statute is not simply annoying
telephonic communications. It also prohibits abusive, threatening or harassing
communications. Thus, the thrust of the statute is to prohibit communications
intended to instill fear in the victim, not to provoke a discussion about political⁴⁶
issues of the day.
The court noted that while § 223(a)(1)(C) could have unconstitutional
applications, that fact does not warrant facial invalidation.⁴⁷ The court concluded that
Bowker’s speech was not constitutionally protected because he called his victim
“predominately, if not exclusively, for the purpose of invading her privacy and
communicating express and implied threats of bodily harm.”⁴⁸ Courts have yet to
address this statute as it applies to Internet “harassment.”
State Cyberharassment Statutes. Examples of cyberharassment include
sending threatening or harassing e-mail messages and instant messages to another
individual, posting highly offensive and/or hurtful blog entries about certain
individuals, or creating entire Web pages for the sole purpose of tormenting and
humiliating another individual. Generally, cyberharassment differs from
cyberstalking in that a credible threat is not involved. Cyberharassment statutes vary
by jurisdiction. Some are incorporated in general harassment statutes, while others
are separate statutes. For example, the Iowa harassment statute provides that
[a] person commits harassment when, with intent to intimidate, annoy, or alarm
another person, the person does any of the following:
(1) Communicates with another by telephone, telegraph, writing or
via electronic communication without a legitimate purpose and in a⁴⁹
manner likely to cause the other person annoyance or harm ...
Virginia’s “harassment by computer” statute states:
If any person, with the intent to coerce, intimidate, or harass any person, shall use
a computer or computer network to communicate obscene, vulgar, profane, lewd,
lascivious, or indecent language, or make any suggestion or proposal of an
obscene nature, or threaten any illegal or immoral act, he shall be guilty of a
Class 1 misdemeanor.⁵⁰

⁴⁵ Id. at 372-73.
⁴⁶ Id. at 379.
⁴⁷ Id. at 380 (citing Parker v. Levy, 417 U.S. 733 (1974)(stating that facial invalidation is
inappropriate when the remainder of the statute “covers a whole range of easily identifiable
and constitutionally proscribable conduct.”)).
⁴⁸ Id.
⁴⁹ I^OW^AC^ODE § 708.7(1).
⁵⁰ V^A.C^ODE 18.2 § 152.7.1.

Table 1 provides a list of states that have cyberharassment statutes. Table 3 provides
the statutory language addressing cyberharassment.
Cyberbullying
Although the Internet is a relatively new medium, it is being used for an old
purpose — harassment of others. Children experiment online with different personas,
and may be nastier in the Internet’s anonymous atmosphere than they would be in
person. In addition, targeted mockery can be far more painful when it is public,
permanent, and written than when muttered in passing in a school hallway. Creating
defamatory or sexually explicit depictions of students and school personnel on⁵¹
websites are two types of student Internet speech that may constitute cyberbullying.
Cyberbullying generally refers to harassment occurring among school-aged
children through the use of the Internet.⁵² Recent incidents of teen suicides appear
to illustrate the harm that may be caused by cyberbullying. According to media
accounts, classmates sent Vermont teenager Ryan Patrick Halligan several instant
messages questioning his sexuality. In addition, the teen was threatened, taunted, and
incessantly insulted online. Ultimately, Halligan committed suicide.⁵³ Responding
in part to the suicide, Vermont’s state legislature passed an “anti-cyberbullying” law
in 2004.⁵⁴ The statute requires schools to create disciplinary policies encompassing
both on- and off-campus (limited to school-sponsored activities) bullying among
school children.⁵⁵ The statute provides a broad definition of “bullying” that may be
interpreted to include Internet misbehavior.
Several other states have passed legislation requiring or authorizing school
districts to adopt cyberbullying policies. For example, in Arkansas, cyberbullying
was added to the schools’ anti-bullying policies and included in provisions for school
officials to punish students for some off-campus activities “if the electronic act is

⁵¹ See, e.g., Mahaffey v. Aldrich, 236 F.Supp.2d 779, 781-82 (E.D. Mich. 2002)(holding that
a student’s suspension for co-creating a website entitled “Satan’s web page” violated his
First Amendment right, absent proof of disruption to school by website or that the website
was created on school property).
⁵² See, Cyberbullying, [http://stopcyberbullying.org/what_is_cyberbullying_exactly.html].
Last visited June 3, 2008.
⁵³ See, e.g., States Pushing for Laws to Curb Cyberbullying, at [http://www.foxnews.com/
story/0,2933,253259,00.html]. Last visited July 23, 2008.
⁵⁴ See V^T.S^TAT.A^NN.^TI^T. 16 § 1161a(a)(6).
⁵⁵ See V^T.S^TAT.A^NN.^TI^T. 16 § 11(a)(32)(A)-(C). The statute provides:
Bullying means any overt act or combination of acts directed against a student
by another student or group of students and which:
(A) is repeated over time;
(B) is intended to ridicule, humiliate, or intimidate the student; and
(C) occurs during the school day on school property, on a school bus,
or at a school-sponsored activity, or before or after the school day on
a school bus or at a school-sponsored activity.

directed specifically at students or school personnel and is maliciously intended for
the purpose of disrupting school and has a high likelihood of succeeding in that
purpose.”⁵⁶ However, it should be noted that some of these policies are limited in
their application.⁵⁷ For example, in Washington, the school district harassment
prevention policies are applicable only to actions that take place “while on school
grounds and during the day.” In other words, some of these policies would not cover
bullies from other districts or other states. In addition, adults who “harass” or
“cyberbully” minors would not be covered in most instances.
In another teen suicide, the issue of an adult engaging in cyberbullying activities
has caused some individuals to use the terms cyberharassment and cyberbullying
interchangeably. On May 15, 2008, a federal grand jury indicted a Missouri woman
for her alleged role in a MySpace hoax against a minor. The indictment alleges that
the defendant created a false identity on the social network MySpace to obtain
information from Megan Meier, a teenager. The indictment further alleges that this
information was used to “torment, harass, humiliate, and embarrass” the juvenile.
The false identity was that of a 16-year-old boy named “Josh Evans.”
Communications allegedly ensued between Megan and “Josh” for some time.
According to media accounts, Megan took her life after receiving a cruel message
from “Josh.”⁵⁸ State prosecutors declined to prosecute this “harassment” activity,⁵⁹
noting that the woman’s intent did not cross a threshold into criminal activity based
on state laws governing stalking, harassment, and child endangerment.⁶⁰
It is important to note that the federal government is not charging the Missouri
woman with harassment of Meier. Rather, the government’s legal theory is based on

⁵⁶ Other states with cyberbullying policies include Idaho, Iowa, Minnesota, New Jersey,
Oregon, South Carolina, and Washington.
⁵⁷ Some courts have concluded that a school district may not punish a student for out-of-
school speech. See, e.g., Killion v. Franklin Regional School Dist., 136 F. Supp.2d 446
(W.D.Pa. 2001)(holding that school could not punish student for list disparaging the athletic
director); Flaherty v. Keystone Oaks School Dist., 247 F. Supp.2d 693 (W.D.Pa.
2003)(holding that the school could not punish a student for “trash talk” about a volleyball
game); Latour v. Riverside Beaver School Dist., No. 05-1076, 2005 WL 2106562 (W.D.Pa.
August 24, 2005)(enjoining school from punishing a student for rap song lyrics).
⁵⁸ See, e.g., “Teen’s Neighbor Charged in Death-Indictment for Alleged Role in MySpace
Prank Sets Precedent,” Washington Post, page C3, May 16, 2008.
⁵⁹ See, e.g., “No charges to be filed over Meier suicide,” St. Charles Journal, at
[http://stcharlesj ournal.stltoday.com/ articles/2007/12/03/news /sj 2tn20071203-1203st c _
meier.ii1.txt]. Last visited July 29, 2008.
⁶⁰ At the time of the hoax, Missouri’s harassment statute was limited to telephone activity.
However, state legislators recently passed legislation expanding the state’s stalking and
harassment laws to include electronic communications. In addition, the new law provides
for harsher penalties for some violations. For example, harassment would be a misdemeanor
unless committed by a person 21 years of age or older against a minor 17 years of age or
younger. At that point, the crime would be classified as a felony. V.A.M.S. § 565.090.

the Computer Fraud and Abuse Act,⁶¹ specifically 18 U.S.C. § 1030(a)(2)(C) and
(c)(2)(B)(2), which makes it a felony punishable by up to five years of imprisonment
if one “intentionally accesses a computer without authorization ..., and thereby
obtains ... information from any protected computer⁶² if the conduct involved an
interstate ... communication” and “the offense was committed in furtherance of any
... tortious act [in this case intentional infliction of emotional distress] in violation of
the ... laws ... of any State.” Prosecutors alleged that the defendant violated
MySpace’s terms of use⁶³ by using a fictitious name, thereby giving her no authority
to access MySpace.
To address the problem of cyberbullying, H.R. 6123 was introduced on May 22,
2008.⁶⁴ This bill would amend title 18 of the United States Code by making
cyberbullying a federal crime with a punishment of up to two years of imprisonment
and/or a fine. Specifically, section 3 of H.R. 6123 states
(a) Whoever transmits in interstate or foreign commerce any communication,
with the intent to coerce, intimidate, harass, or cause substantial emotional
distress to a person, using electronic means to support severe, repeated, and
hostile behavior, shall be fined under this title or imprisoned not more than two⁶⁵
years, or both.
Constitutional Concerns and Considerations
There are constitutional principles that limit the authority of all governmental
entities (federal, state, and local) to enact cyberharrasment and/or cyberbullying
statutes, namely the First and Fourteenth Amendments.

⁶¹ The Computer Fraud and Abuse Act has been previously used to address the problem of
hacking. It appears that this may be the first time the statute has been used in a “harassment”
or social networking case.
⁶² Under the statute, a “protected computer” is one used in interstate or foreign commerce.
Courts have interpreted this term very broadly. See, United States v. Mitra, 405 F.3d 492,^th
495 (8 Cir. 2005)(stating that “[e]very cell phone and cell tower is a ‘computer’ under this
statute’s definition; so is every iPod, every wireless base station in the corner coffee shop,
and many another gadget.”).
⁶³ MySpace membership requires users to agree to the terms of service (TOS). The TOS
requires users to agree “to provide truthful and accurate registration information” and to
refrain from “using any information obtained from MySpace services to harass, abuse, or
harm other people.”
⁶⁴ 110^th Cong., 2d Sess. Additional bills, such as H.R. 3577, H.R. 4134, H.R. 6120, and S.
3016, have been introduced in the 110^th Congress which authorize educational grants for
Internet crime prevention programs.
⁶⁵ The term “electronic means” includes “email, instant messaging, blogs, websites,
telephones, and text messages.”

First Amendment: Freedom of Speech
True Threats. The First Amendment declares that “Congress shall make no
law ... abridging the freedom of speech.” The Fourteenth Amendment’s due process
clause imposes the same restriction upon the states,⁶⁶ many of whose constitutions⁶⁷
have a comparable limitation on state legislative action. Although the First
Amendment guarantees free speech, the right is not absolute. Governments impose⁶⁸
limitations on many types of speech, including fighting words, false statements of
fact,⁶⁹ and obscene speech.⁷⁰ Moreover, courts distinguish between constitutionally⁷¹
protected speech and other less socially valuable categories of speech. Other
examples of unprotected speech include speech that incites others to engage in⁷²⁷³
lawless behavior, constitutes true threats, or is protected by intellectual property
laws.⁷⁴ The U.S. Supreme Court has decided several cases that provide the
framework in which states must act to protect the constitutionality of
cyberharassment and/or cyberbullying statutes.
The Court has cited three reasons why threats of violence may be outside the
First Amendment’s protection: “protecting individuals from the fear of violence,
from the disruption that fear engenders, and from the possibility that the threatened⁷⁵⁷⁶
violence will occur.” However, in Watts v. United States, the Court held that only
“true threats” are outside the amendment’s scope. In Watts, the defendant attended
a political rally and made the statement, “I have already received my draft
classification ... I am not going. If they ever make me carry a rifle the first man I⁷⁷
want to get in my sights is [President] L.B.J.” The defendant was arrested and
charged with violating 18 U.S.C. § 871(a) for “knowingly and willfully ... [making
a] threat to take the life of or to inflict bodily harm upon the President of the United
States.” The defendant challenged his jury conviction.
The U.S. Supreme Court reversed, holding that, although the federal statute was
not unconstitutionally overbroad, the defendant’s statement was protected because

⁶⁶ 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 (1996); Gitlow v. New York, 268
U.S. 652, 666 (1925).
⁶⁷ See, e.g., L^A.C^ONST.A^RT. I § 7; M^D.D^ECL.R^TS.A^RT. 40.
⁶⁸ Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942).
⁶⁹ Gertz v. Welch, 418 U.S. 323, 339-340 (1974).
⁷⁰ Miller v. California, 413 U.S. 15, 26 (1973).
⁷¹ See, e.g., Pope v. Illinois, 481 U.S. 497, 500-01 (1987)(discussing how the serious value
doctrine tests whether a reasonable person would find value in speech).
⁷² Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
⁷³ Watts v. United States, 394 U.S. 705, 707 (1969).
⁷⁴ Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 569 (1985).
⁷⁵ R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992).
⁷⁶ 394 U.S. 705, 705 (1969).
⁷⁷ Id. at 706.

it was not a “true threat.” The Court found that the content of Watts’s statement, the
context in which the statement was made, and the audience’s reaction⁷⁸ to the
statement were all supportive of Watts’s claim that he engaged in protected “political
hyperbole.”⁷⁹ The Court recognized that “true threats” should not be afforded First
Amendment protection, and stated, “What is a threat must be distinguished from
what is constitutionally protected speech.”⁸⁰
Watts did not establish a bright-line test for distinguishing a true threat from
protected speech. As such, lower courts have created varying tests for determining
whether speech rises to the level of a true threat.⁸¹ The primary federal cases dealing
with threat speech have arisen under 18 U.S.C. § 875, which imposes criminal
sanctions on anyone who “transmits in interstate or foreign commerce any
communication containing any threat to kidnap any person or any threat to injure the
person of another,” and 18 U.S.C. § 876, which prohibits threats against the
President. The main point of contention among the circuits is whether the focus of
a “true threat” test should be on the speaker or the listener. Some circuits evaluate
the existence of a threat by determining whether the speaker should reasonably have
foreseen his words to be threatening,⁸² while others rest the determination on whether
a reasonable recipient would be threatened by the statement.⁸³
For example, in Planned Parenthood v. American Coalition of Life Activists,⁸⁴
the 9^th Circuit Court of Appeals upheld a damage award in favor of four physicians
and two health clinics that had provided medical services, including abortions, to
women. The plaintiffs sued under the Freedom of Access to Clinic Entrances
(FACE),⁸⁵ a federal statute that gives aggrieved persons a right of action against
whomever by “threat of force ... intentionally ... intimidates any person because the
person is or has been ... providing reproductive health services.” The defendants had
published “WANTED,” “unWANTED,” and “GUILTY” posters with the names,
photographs, addresses, and other personal information of abortion doctors, three of
whom were subsequently murdered by abortion opponents. The defendants also
operated a “Nuremberg Files” website that listed approximately 200 people under the
label “ABORTIONIST,” with the legend: “Black font (working); Greyed-out Name

⁷⁸ Id. at 708 (describing the audience’s reaction as that of laughter).
⁷⁹ Id.
⁸⁰ Id. at 707.
⁸¹ See, e.g., United States v. Alkhabaz, 104 F.3d 1492 (6^th Cir. 1997).
⁸² See, e.g., United States v. Fulmer, 108 F.3d 1486 (1^st Cir. 1997)
⁸³ See, e.g., United States v. Maisonet, 484 F.2d 1356, 1357 (4^th Cir. 1973).
⁸⁴ 290 F.3d 1058 (9^th Cir. 2002)(en banc), cert denied, 123 S.Ct. 2637.
⁸⁵ 18 U.S.C. §§ 248(a)(1) and (c)(1)(A).

(wounded); Strikethrough (fatality).”⁸⁶ The posters and website contained no
language that literally constituted a threat, but, the court found, “they connote
something they do not literally say,” namely “You’re Wanted or You’re Guilty;
You’ll be shot or killed,”⁸⁷ and the defendants knew that the posters had caused
abortion doctors to “quit out of fear for their lives.”⁸⁸ In reaching its decision, the
court concluded that a “true threat” is “a statement which, in the entire context and
under all the circumstances, a reasonable person would foresee be interpreted by
those to whom the statement is communicated as a serious expression of intent to
inflict bodily harm upon that person.”⁸⁹
Based upon the aforementioned constitutional framework, it is likely that
cyberstalking, cyberharassment, and/or cyberbullying statutes may be deemed
constitutionally deficient if the situation does not rise to the level of a “true threat”
under most circumstances. This analysis may be different depending on whether the
challenged language is contained in a state statute or school policy.
Freedom of Speech Within the School Context. School officials are
using cyberharassment and cyberbullying policies to take disciplinary action against
students, including suspensions and expulsions. When students and/or parents have
challenged schools’ disciplinary response to students’ “offensive” expression, courts⁹⁰
have relied on Supreme Court precedent. While students generally retain the
protections of the First Amendment, these protections may not always mirror the
constitutional protections afforded in other contexts. For example, in Tinker v. Des
Moines Independent Community School District,⁹¹ the Court held that student
expression may be regulated only if it would substantially disrupt school operations
or interfere with the rights of others.⁹² In Tinker, students wore black armbands to
school to protest the United States’ involvement in Vietnam, despite knowledge that
such action was in violation of school policy. The students were asked to remove the
armbands, and upon their refusal were suspended until they came to school without
the armbands. Thereafter, the students filed a complaint seeking to enjoin the school
district from disciplining them. The district court dismissed the complaint,
concluding that the school’s policy against armbands was reasonable to prevent

⁸⁶ 290 F.3d 1058, 1065.
⁸⁷ Id. at 1085.
⁸⁸ Id.
⁸⁹ Id. at 1077.
⁹⁰ See, Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969);
Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)(upholding suspension of a
high school student for a student government nomination speech including the use of
obscene, profane language and gestures); Hazelwood School District v. Kuhlmeier, 484 U.S.

260 (1988)(upholding a principal’s authority to delete material from a high school paper);

and Morse v. Frederick, 127 S.Ct. 2618 (2007)(holding that a principal did not violate a
student’s right to free speech by confiscating a banner she reasonably viewed as promoting
illegal drug use).
⁹¹ 393 U.S. 503 (1969).
⁹² Id. at 507.

disturbance of school discipline. On appeal, the U.S. Supreme Court stated that the
wearing of armbands for the purpose of expressing different viewpoints is the type
of symbolic act within the protection of the First Amendment. Specifically, the Court
ruled that “First Amendment rights, applied in light of the special characteristics of
the school environment, are available to teachers and students. It can hardly be
argued that either students or teachers shed their constitutional rights to freedom of
expression at the schoolhouse gate.”⁹³
The Court subsequently refined the Tinker rationale as it applies to verbal
expression or “pure speech.” In Bethel School District 403 v. Fraser,⁹⁴ the Court
ruled that school officials had the authority to discipline a student for violating school
rules by delivering a lewd speech at a school assembly. In Fraser, a high school
student gave a nominating speech on a classmate’s behalf during an official school-
wide assembly for student government elections. In this speech, the student used
sexual innuendos. Reaction to the speech was mixed; some students yelled and
simulated sexual acts, while other students and teachers were offended. The student
was suspended for three days and prohibited from speaking at graduation. In deciding
this case, the Court shifted focus from the students’ rights articulated in Tinker, but
instead emphasized the school’s duty to inculcate habits and manners of civility and
teach students the boundaries of socially appropriate behavior.⁹⁵ In addition, the
Court noted the importance of protecting minors from vulgar, lewd, or indecent
language.⁹⁶ As such, the Court concluded that the nomination speech had a disruptive
effect on the education process, and that it was up to school officials to determine
what manner of speech in the classroom or in school assembly is appropriate.⁹⁷
While it is undisputed that the First Amendment does not protect “offensive”
speech while on school grounds, courts are less clear when the speech occurs off
school premises. For example, in J.S. v. Bethlehem Area School District,⁹⁸ an 8^th
grader created a website that contained derogatory remarks regarding a math teacher
and a principal.⁹⁹ Most of the website was devoted to ridiculing the math teacher,
comparing her to Adolph Hitler and making fun of her physical appearance.¹⁰⁰ In
addition, the site contained a solicitation for contributions to pay for a “hit man.”¹⁰¹
School officials subsequently expelled the student, citing the extreme emotional

⁹³ Id. at 506.
⁹⁴ 478 U.S. 675 (1986).
⁹⁵ Id. at 681.
⁹⁶ Id.
⁹⁷ Id. at 683..
⁹⁸ 807 A.2d 847 (Pa. 2002).
⁹⁹ The website contained a disclaimer that stated that “[b]y clicking,” or entering, the
website, the visitor agreed not to disclose to any school district personnel any information
regarding the website or its creator. The disclaimer, however, did not prevent access to the
website. Id. at 851.
¹⁰⁰ Id..
¹⁰¹ Id.

distress suffered by the math teacher and the disruption the website caused at the
school.¹⁰² The student argued that his website was protected speech.
In reviewing the case, the Pennsylvania Supreme Court decided two issues: (1)
whether the student’s speech constituted a true threat; and (2) whether the Tinker and
Fraser standards permit a school district to discipline a student for off-campus
speech. In addressing the “true threat” issue, the court determined that, although the
website was in extremely poor taste, it was not a “true threat.” Specifically, the court
stated that “[w]e believe that the [w]ebsite, taken as a whole, was a sophomoric,
crude, highly offensive and perhaps misguided attempt at humor or parody.
However, it did not reflect a serious expression of intent to inflict harm,” as the site
focused primarily on the teacher’s physical appearance, utilizing cartoons, hand
drawings, and a reference to Adolph Hitler.¹⁰³
The court then addressed whether First Amendment jurisprudence permitted the
school to discipline a student for off-campus speech. It dismissed the argument that
the website was off-campus speech beyond the school’s jurisdiction. Specifically, the
court stated that “[w]e find there is a sufficient nexus between the [w]ebsite and the
school campus to consider the speech as occurring on-campus.”¹⁰⁴ The court made
this determination because the student had accessed the site at school, showed it to
a fellow student, and informed other students about the site.¹⁰⁵ The court then
reasoned that school officials could punish the student under the Tinker or Fraser
standard¹⁰⁶ — under the Fraser standard because the speech on the website was
vulgar and highly offensive,¹⁰⁷ and under the Tinker standard inasmuch as the website
caused a substantial disruption of school activities.¹⁰⁸

¹⁰² The math teacher testified that she was frightened and fearful that someone would
attempt to kill her. In addition, she suffered “stress, anxiety, loss of appetite, loss of sleep,
loss of weight, and a general sense of loss of well being as a result of viewing the website.”
Id. at 852.
¹⁰³ Id. at 859.
¹⁰⁴ Id. at 865.
¹⁰⁵ Id. (stating that “where speech that is aimed at a specific school and/or its personnel is
brought onto the school campus or accessed at school by its originator, the speech will be
considered on-campus speech.”).
¹⁰⁶ Id. at 868-869.
¹⁰⁷ Id.
¹⁰⁸ Id. However, in Emmett v. Kent School District No. 415, the court granted a temporary
restraining order in the student’s favor. In this case, a high school senior posted a Web page
from his home computer that contained mock obituaries of two of his friends. The obituaries
were written tongue-in-cheek and inspired, in part, by a creative writing class held the
previous school year in which students had been assigned to write their own obituaries. The
website became a topic of discussion at the school by both faculty and students. Web page
viewers were allowed to vote on who would “die” next. When a local news broadcast
described the Web page as featuring a “hit list,” the student was immediately placed on
emergency expulsion. Subsequently, the expulsion was modified to a five-day suspension.
In granting the temporary restraining order, the court found that there was no evidence that
(continued...)

Similarly, in Wisniewski v. Board of Ed.,¹⁰⁹ the court affirmed the school
district’s suspension of an 8^th grade student who had disseminated to friends an
instant message icon showing a pistol firing a bullet at his English teacher,
accompanied by the words, “Kill Mr. Van der Molen.”¹¹⁰ The student created the
icon a couple of weeks after his class had been informed of a zero-tolerance policy
regarding threats. The student also sent messages with the “objectionable” icon to
approximately 15 other students, but not to any school personnel. Another student
informed and provided the English teacher with a copy of the icon. The English
teacher forwarded the information to the high school and middle school principals,
as well as to law enforcement personnel. The student accepted responsibility for the
icon’s creation and was subsequently suspended for five days. The student was
allowed to return to school pending a superintendent’s hearing. The English teacher
requested and was allowed a class reassignment. A police investigator as well as a
psychologist determined that the student intended the icon to be a joke and not a
threat toward the English teacher. However, a hearing officer found the determination
unpersuasive and irrelevant. She concluded that the student had engaged “in the act
of sending a threatening message to his buddies, the subject of which was a
teacher.”¹¹¹ In addition, she concluded that his action had disrupted school operations
by “requiring special attention from school officials, replacement of the threatened
teacher, and interviewing pupils during class time.”¹¹² The student was subsequently
suspended for a semester.
The student’s parents filed suit against the school board and the superintendent,
seeking damages under 42 U.S.C. § 1983, claiming that the student’s icon was
protected speech under the First Amendment and not a true threat. The district court
dismissed the claim. The appellate court declined to address whether the icon was a
true threat. Instead, the court applied the Tinker standard and concluded that even
though the icon’s creation and transmission had occurred off campus, it was
reasonably foreseeable that school officials would find out about the icon and that it
would “materially and substantially disrupt the work and discipline of the school.”¹¹³
Thus, the appellate court concluded that the First Amendment claim had been
properly dismissed.¹¹⁴
However, in Beussink v. Woodland R-IV School District,¹¹⁵ a U.S. district court
held that the plaintiff had demonstrated the likelihood of success of his First

¹⁰⁸ (...continued)
the student had intended to threaten anyone, that the site threatened anyone, or that the
speech manifested any violent tendencies. 92 F. Supp.2d (1088) (W.D. Wash. 2000)
¹⁰⁹ 494 F.3d 34 (2^nd Cir. 2007), cert. denied, ___ U.S. ___, 128 S.Ct. 1741 (2008).
¹¹⁰ Id. at 35.
¹¹¹ Id. at 36.
¹¹² Id.
¹¹³ Id. at 39.
¹¹⁴ Id. at 40.
¹¹⁵ 30 F. Supp.2d 1175 (E.D. Missouri 1998).

Amendment claim. In this case, a high school student was suspended for the contents
of a website that contained vulgar criticism directed toward school officials.¹¹⁶ The
student had created the website at home on his personal computer without using
school facilities or resources. However, one of the student’s friends became angry
with him, accessed the website at school and showed it to the school’s computer
science teacher. The teacher informed the principal about the site. Immediately after
viewing the site, the principal suspended the student. Due to the school’s policy
regarding absenteeism, the suspension resulted in the student failing all his classes.¹¹⁷
In reviewing the student’s suspension, the court determined that the evidence
presented did not establish that Beussink had been disciplined because of the fear of
disruption or interference with school discipline, but rather because the principal had
been upset by the website’s content. Thus, the court concluded that the website did
not materially and substantially interfere with school discipline, as Tinker requires.¹¹⁸
As such, the court granted a preliminary injunction against the school district.
In Layshock v. Hermitage School District,¹¹⁹ the court held that a student’s
speech right had been violated when the school district failed to demonstrate a nexus
between the student’s parody of the principal and a substantial disruption of the
school environment. The student created the “parody profile” of his principal on
MySpace by using his grandmother’s home computer. This parody profile displayed
the principal’s picture, which Layshock had copied from the school’s website. The
template for the profile allowed users to fill in background information and include
answers to specific questions. The student answered the questions with what were
alleged to be objectionable answers. For example, in response to a question regarding
alcohol use, the profile read “big keg behind my desk.” The profile also referred to
the principal as a “big steroid freak” and reflected that the principal was “too drunk
to remember” his birthday.¹²⁰ The principal subsequently discovered another parody
profile created by another student. Apparently, there were at least three parody
profiles.
Evidence was presented that indicated that other students had viewed
Layshock’s parody profile during school hours. In an attempt to curtail the creation
of parody profiles, the school officials sought to block students’ access to MySpace.
The principal contacted MySpace directly, and succeeded in having the profiles
disabled.¹²¹ Students joked and talked about the parody profiles while in school.
Teachers interviewed students to determine the profiles’ creator or creators. When
asked, Layshock admitted to creating one profile. Layshock was informed that he
was being considered for disciplinary action for “Disruption of the normal school

¹¹⁶ Id.
¹¹⁷ The absenteeism policy “drops” students’ grades in each class by one letter grade for
each unexcused absence in excess of 10 days. Suspension days are considered unexcused
absences. Id. at 1178.
¹¹⁸ Id.
¹¹⁹ 496 F. Supp.2d 587 (W.D.Pa. 2007).
¹²⁰ Id. at 591.
¹²¹ Id. at 592.

process: Disrespect: Harassment of a school administrator via a computer/internet
with remarks that have demeaning implications: Gross misbehavior: Obscene, vulgar
and profane language.”¹²² At a subsequent hearing, the student received a 10-day out-
of-school suspension. Additional discipline included banning him from attending or
participating in any events sponsored by the school district, and prohibiting him from
participating in the high school graduation ceremony.
The court concluded that there were several gaps in the causation link between
the student’s off-campus conduct and any material and substantial disruption of
school operations. The school district failed to demonstrate which parody profile
caused the alleged disruption, as there were three other profiles available on
MySpace during the same time frame. In addition, the court noted that the school
district had failed to demonstrate that the alleged disruption was due to Layshock’s
parody and not the administrators’ reactions. Furthermore, the court determined that
the actual disruption had been rather minimal, as “no classes were cancelled, no
widespread disorder occurred, there was no violence or student disciplinary action.”
As such, the court concluded that the school administrator lacked the authority to
punish Layshock for his off-campus creation of the parody profile.
Fourteenth Amendment: Due Process
Another constitutional constraint on legislators and school administrators when
drafting legislation or school policies aimed at curtailing “cyberharassment” and/or
“cyberbullying” is the Fourteenth Amendment. Its provisions are as follows:
All persons born or naturalized in the United States and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.
The Fourteenth Amendment’s due process clause includes two distinct aspects:
substantive due process¹²³ and procedural due process. Procedural due process, based
on principles of “fundamental fairness,” addresses which legal procedures are
required to be followed in state proceedings. Relevant issues include notice,
opportunity for hearing, confrontation and cross-examination, discovery, basis of
decision, and availability of counsel.
Criminal statutes that lack sufficient definiteness or specificity may be held
“void for vagueness.” Under this doctrine, a governmental regulation or statute may
be declared void if it fails to give a person adequate warning that his or her conduct
is prohibited or if it fails to set out adequate standards to prevent arbitrary and/or

¹²² Id. at 593.
¹²³ Substantive due process has generally dealt with specific subject areas, such as liberty
of contract or privacy.

discriminatory enforcement.¹²⁴ In Grayned v. City of Rockford,¹²⁵ the U.S. Supreme
Court stated that
[v]ague laws offend several important values. First, because we assume that man
is free to steer between lawful and unlawful conduct, we insist that laws give the
person of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly. Vague laws may trap the innocent by
not providing fair warnings. Second, if arbitrary and discriminatory enforcement
is to be prevented, laws must provide explicit standards for those who apply
them. A vague law impermissibly delegates basic policy matters to policemen,
judges, and juries for resolution on an ad hoc and subjective basis, with the¹²⁶
attendant dangers of arbitrary and discriminatory applications.
A statute may be so vague or threatening to constitutionally protected activity
that it can be pronounced facially unconstitutional. For example, in Papachristou v.
City of Jacksonville,¹²⁷ a unanimous Court struck down as facially invalid a vagrancy
ordinance that punished
dissolute persons who go about begging, ... common night walkers, ... common
railers and brawlers, persons wandering or strolling around from place to place
without any lawful purpose or object, habitual loafers, ... persons neglecting all
lawful business and habitually spending their time by frequenting houses of ill
fame, gaming houses, or places where alcoholic beverages are sold or served,
persons able to work but habitually living upon the earnings of their wives or¹²⁸
minor children.
The Court found the statute facially invalid, as it failed to provide fair notice or
require specific intent to commit an unlawful act. The Court concluded that the
statute permitted arbitrary and erratic arrests and convictions, provided police officers¹²⁹
too much discretion, and criminalized activities that are normally innocent.
A Texas appellate court applied the aforementioned principles in finding a state
harassment statute unconstitutional. In Karenev v. Texas,¹³⁰ the Court of Appeals of
Texas held that a state harassment statute that criminalized the sending of repeated
“electronic communications in a manner reasonably likely to harass, annoy, alarm,
abuse, torment, embarrass, or offend another” was unconstitutionally vague, and thus
the statute was void. As such, the appellate court reversed the court’s judgment and

¹²⁴ See, e.g., Chicago v. Morales, 527 U.S. 41 (1999); Kolender v. Lawson, 461 U.S. 352
(1983).
¹²⁵ 408 U.S. 104 (1972).
¹²⁶ Id. at 108-09.
¹²⁷ 405 U.S. 156 (1972).
¹²⁸ Id. at n.1.
¹²⁹ Similarly, an ordinance making it a criminal offense for three or more persons to
assemble on a sidewalk and conduct themselves in a manner annoying to passersby was
found impermissibly vague and void on its face because it encroached on the freedom of
assembly. Coats v. City of Cincinnati, 402 U.S. 611 (1971).
¹³⁰ 2008 WL 902799 (Tex. App.-Fort Worth April 3, 2008).

rendered judgment of acquittal. In this case, the defendant, after moving out of the
marital residence, sent his estranged wife (Elena) a series of e-mail messages, all
written in Bulgarian.¹³¹ In some of these messages, as translated, the defendant
predicted his wife’s future and stated that “he would raise their child, Elena’s mother
would be paralyzed, and Elena would be in either a mental hospital or prison.”¹³² In
another e-mail, the defendant called Elena “not even a regular slut ..., something
much scarier,” “a pathological li[ar], a dirty whore, a filthy thief, a rotten user, a sick
nymphomaniac, a mental case, and a devil’s work.”¹³³ He also told her, “It is about
time to pay for all of your filthy deeds which you have committed during your
pathetic life!”¹³⁴ At trial, the defendant testified that during his travels to Bulgaria
he had run into fortunetellers who asked him to relay the messages to Elena regarding
her future. Presumably, these were fortunetellers Elena had relied on previously. A
jury subsequently convicted the defendant on one count of harassment. The defendant
challenged the constitutionality of the harassment statute.
The statute, as previously noted, stated in part that a person commits harassment
“if with intent to harass, annoy, alarm, abuse, torment, or embarrass another he sends
repeated electronic communications in a manner reasonably likely to harass, annoy,
alarm, abuse, torment, embarrass, or offend another.”¹³⁵ The court, relying on
precedent,¹³⁶ found that the portions of the harassment statute establishing as an
offense the sending of electronic communications that “annoy or alarm” are
unconstitutionally vague. Also, the court noted that the terms “harass,” “abuse,”
“torment,” and “embarrass” are “susceptible to uncertainties of meaning.”¹³⁷ In
addition, the court determined that the statute fails to “establish a clear standard for
whose sensibilities must be offended.”¹³⁸
The aforementioned principles are also applicable in the school setting. For
example, in Flaherty v. Keystone Oaks School District,¹³⁹ the court held that the
breadth of student handbook policies pertaining to discipline and technology were

¹³¹ It is worth noting that at trial, the State relied without objection on translations of the
messages by an uncertified translator who was one of the wife’s acquaintances. The
defendant countered the translations with an Bulgarian translator.
¹³² 2008 WL 902799, *2.
¹³³ Id.
¹³⁴ Id.
¹³⁵ T^EX.P^ENALC^ODE § 42.07.
¹³⁶ In Kramer v. Price, 712 F.2d 174 (5^th Cir. ), the court found the Texas pre-1983
harassment statute to be facially unconstitutional due to vagueness inasmuch as the words
“annoy” and “alarm” were inherently vague. In addition, the court found that the statute
failed to specify whose sensitivities are relevant. In Long v. State, 931 S.W.2d 285 (Tex.
Crim. App. 1996), the court found that Texas’s 1993 stalking statute suffered the same flaws
denounced in Kramer. It is worth noting that the current harassment statute mirrors the 1993
stalking statute.
¹³⁷ 2008 WL 902799, *7. See, Long, 931 S.W.2d at 289.
¹³⁸ 2008 WL 902799, *7.
¹³⁹ 247 F. Supp.2d 698 (W.D. Pa. 2003).

overreaching, thus violating students’ free speech rights. In addition, the court held
that the policies were unconstitutionally vague in definition and as applied. In this
case, the student was disciplined for posting Internet messages on a message board
devoted to high school volleyball in western Pennsylvania. The site was not
sponsored or affiliated with the school district. One of the messages stated that one
of the opposing players’ mothers was a “bad teacher.”¹⁴⁰ When school administrators
were informed of the postings, the student faced disciplinary action.
In granting summary judgment, the court found the school policies overbroad
for several reasons. First, the polices were not referred to or incorporated in the
student handbook. In addition, the policy “authorizes discipline where a student’s
expression that is abusive, offending, harassing, or inappropriate, interferes with the
educational program of the schools.” The court concluded that the policy did not
comply with the Tinker requirement that such discipline should be reserved for those
circumstances that cause a substantial disruption to school operations.¹⁴¹
The court noted that even if it did not find the policy overbroad, it would find
the student handbook policies unconstitutionally vague, as the terms “abuse, offend,
harassment, and inappropriate” were not defined in any significant manner. In
addition, the court found the policies not only vague in definition but also in
application. The court noted that school personnel had varying interpretations of the
policies. As such, the court concluded that the policies were vague enough to result
in arbitrary enforcement. Therefore, the court concluded that the student handbook
policies did not provide the student with adequate warning of proscribed conduct.
Conclusion
With the proliferation of potential uses and abuses of the Internet, the crime of
Internet harassment presents challenges for law enforcement personnel, legislators,
educators, and parents. These challenges are exacerbated by a lack of uniformity in
defining the terms cyberharassment and cyberbullying. In addition, jurisdictional
limits and the anonymity of the Internet sometimes make it difficult for law
enforcement personnel to identify, locate, arrest, and prosecute alleged offenders.
While states generally assert jurisdiction over law enforcement authority within their
borders, Congress may legislate, pursuant to the Commerce Clause, Internet
activities. Or Congress may elect to adopt a wait-and-see approach, monitoring state
Internet harassment-related activities and the types of behavior prosecuted.
Legislators and school administrators continue to grapple with ways of
combating cyberbullying, in light of recent high-profile teen suicides, while
maintaining the free flow of information and opinion on the Internet. As Internet
harassment may cause its victims emotional harm as opposed to physical harm,
legislators must determine what level, if any, of harassment should be criminalized.
While traditional harassment statutes may provide some guidance in drafting

¹⁴⁰ Id. at 700.
¹⁴¹ Id. at 704.

legislation and/or school policies, it is important to differentiate between the one-to-
one communication of a telephone or e-mail communication and the one-to-many
communication of a posting on a public website.
In drafting legislation or school policies, legislators and school administrators
must consider the constitutional constraints of the First and Fourteenth Amendments.
Statutes and school policies must be narrow enough not to infringe upon protected
speech. In addition, such restrictions must provide adequate notice of what activities
constitute Internet harassment. While school administrators arguably have more
leeway in adopting Internet harassment policies, they are still generally limited to
restricting speech that substantially or materially disrupts the educational process.
To facilitate this goal, it may be desirable for legislation and school policies to
include definitions for all relevant terms such as “annoy,” “harass,” “repeated
communication,” “alarm,” or “torment,” as these may be too vague or subjective,
which may lead to an inordinate amount of prosecutorial discretion.

Table 1. Cyberharassment Statutes
State Citation P enalty
AlabamaAla. Code § 13A-11-8Misdemeanor
AlaskaAlaska Stat. § 1161.120Misdemeanor
ArizonaAriz. Rev. Stat. § 13-2921Misdemeanor
ArkansasArk. Code § 5-41-108Misdemeanor
CaliforniaCal. Penal Code §§ 422 and 653(m)Misdemeanor
ColoradoColo. Rev. Stat. § 18-9-111Misdemeanor
ConnecticutConn. Gen. Stat. § 53A-182-831^st Degree: Felony; ^nd
2 Degree: Misdemeanor
DelawareDel. Code 11 § 1311Misdemeanor
FloridaFla. Stat. § 784.048Misdemeanor or Felony
Georgia
HawaiiHawaii Rev. Stat. § 711-1106Misdemeanor
Idaho
IllinoisIll. Comp. Stat. 720 § 135 1-2Misdemeanor
IndianaInd. Code § 35-45-2-2Misdemeanor
IowaIowa Code § 708.7
Kansas
Kentucky
Louisiana
Maine
MarylandMd. Code § 3-3-805Misdemeanor
MassachusettsMass. Gen. Laws § 265-43AFelony
MichiganMich. Comp. Laws § 750.411sFelony
MinnesotaMinn. Stat. § 609.749Misdemeanor or Felony
(if aggravated or repeated)
MississippiMiss. Code § 97-29-45Misdemeanor
MissouriV.A.M.S. § 565.090Misdemeanor or Felony
(if repeat offender or an
adult over 21 against a
minor 17 years or
younger)

State Citation P enalty
MontanaMCA § 45-8-213Misdemeanor
Nebraska
Nevada
New HampshireN.H. Rev. Stat. § 644-4Misdemeanor
New JerseyN.J.S. § 2C 33-4Misdemeanor
New Mexico
New YorkN.Y. Penal Law § 240.30Misdemeanor
North CarolinaN.C.G.S.A. § 14-196.3Misdemeanor
North Dakota
OhioOhio Rev. Code § 2917.21AMisdemeanor
OklahomaOkla. Stat. 21 § 1172Misdemeanor
OregonOr. Rev. Stat. § 166.065Misdemeanor
PennsylvaniaPa. Cons. Stat. 18 § 5504Misdemeanor
Rhode Island
South CarolinaS.C. Code § 16-3-700(a)2Misdemeanor
South DakotaS.D. Cod. Laws § 49-31-31Misdemeanor
TennesseeTenn. Code § 39-17-308Misdemeanor
TexasTx. Penal Code § 42.07^aMisdemeanor
UtahUtah code § 76-9-201Misdemeanor
Vermont13 V.S.A. § 1027Misdemeanor
VirginiaVa. Code 18.2 § 152.7.1Misdemeanor
WashingtonWash. Rev. Code § 9A.46.020Misdemeanor
West VirginiaW. Va. Code § 61-3C-14AMisdemeanor
WisconsinWis. Stat. § 947.0125Misdemeanor
Wyoming
a. Provision ruled unconstitutional by Court of Appeals of Texas April 3, 2008, Karenev v.
Texas, 2008 WL 902799.

Table 2. Cyberstalking Statutes
State Citation P enalty
Alabama
AlaskaAlaska Stat. § 11.41.260Misdemeanor (Felony ifvictim under 16)
Arizona
Arkansas
CaliforniaCal. Penal Code § 646.9Misdemeanor
ColoradoColo. Rev. Stat. § 18-9-111Felony
Connecticut
Delaware
FloridaFla. Stat. § 784.048Misdemeanor or Felony
GeorgiaGeorgia Code § 16-5-90Misdemeanor
Hawaii
IdahoI.C. § 18-7906Misdemeanor (Felony if
victim under 16)
IllinoisIll. Comp. Stat. 720 § 5-12-7.5Felony
Indiana
Iowa
Kansas
Kentucky
LouisianaLa. Rev. Stat. § 14-40.3Misdemeanor
Maine
Maryland
MassachusettsMass. Gen. Laws § 265 43Felony
MichiganMich. Comp. Laws § 750.411(h)Misdemeanor (Felony if
victim under 18 and
Defendant is 5 years older)
MinnesotaMinn. Stat. § 609.749Misdemeanor (Felony if
aggravated or repeated)
MississippiMiss. Code § 97-45-15Felony
MissouriV.A.M.S. § 565.225Misdemeanor (Felony if
aggravated)

State Citation P enalty
MontanaMCA § 45-5-220Misdemeanor
Nebraska
Nevada
New
Hampshire
New JerseyN.J.S. § 2C 12 10
New Mexico
New York
North CarolinaN.C.G.S.A. 14-§ 196.3Misdemeanor
North Dakota
OhioOhio Rev. Code § 2903.211Misdemeanor (Felony under
some circumstances)
OklahomaOkla. Stat. 21-§ 1173Misdemeanor
OregonOr. Rev. Stat. § 163.730-732Misdemeanor
PennsylvaniaPa. Cons. Stat. 18 § 5504Misdemeanor
Rhode IslandR.I. Gen. Laws § 11-52-4.2Misdemeanor (Felony on 2^nd
offense)
South CarolinaS.C. Code § 16-3-1700Felony
South DakotaS.D. Cod. Laws § 22-19A-1Misdemeanor
TennesseeT.C.A. § 39-17-315Misdemeanor (Felony if
victim under 18)
Texas
Utah
Vermont
Virginia
WashingtonWash. Rev. Code §§ 9A.46.110Misdemeanor (Felony if
and 9.61.260threaten to kill)
West Virginia
Wisconsin
WyomingWyo. Stat. § 6-2-506Misdemeanor

CRS-29
Table 3. Cyberharassment Statutory Language, by State
CitationSelected Statutory Language
Ala. Code § 13A-11-Harassing Communications: with intent to harass or alarm; communicates anonymously or otherwise bytelephone, telegraph, mail, or any other form of written or electronic communication, in a manner likely to harass

8(b)(1)or cause alarm.

kaAlaska Stat. § 11.61.120Harassment in the 2nd Degree: with intent to harass or annoy the other person: makes an obscene electroniccommunication, or a telephone call or electronic communication that threatens physical injury or sexual contact.
Harassment: with intent to harass or with knowledge that harassing the other person; anonymously or otherwise
onaAriz. Rev. Stat. § 13-2921communicates or causes a communication with another person by verbal, electronic, mechanical, telegraphic,
telephonic or written means in a manner that harasses.
Unlawful Computerized Communications: with the purpose to frighten, intimidate, threaten, abuse, or harass
another, the person sends a message: (1) by electronic mail or other computerized communication system, and in
ⁱ^{ki/CRS-RL34651}that message threatens to cause physical injury, to any person or damage to the property of any person; (2) by
^g/welectronic mail or other computerized communication system with the reasonable expectation that the other person
^s^.orArk. Code § 5-41-108will receive the message and in that message threatens to cause physical injury to any person or damage to the
^le^akproperty of any person; (3) to another person on an electronic mail or other computerized communication system
and in that message uses any obscene, lewd, or profane language; or (4) on an electronic mail or other
^://wikicomputerized communication system with the reasonable expectation that the other person will receive the
^h^ttpmessage and in that message uses any obscene, lewd, or profane language.
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another
person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic
communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its
liforniaCal. Penal Code § 422face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as
to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and
thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate
family’s safety.

CRS-30
CitationSelected Statutory Language
Every person who, with intent to annoy, telephones or makes contact by means of an electronic communication
device with another and addresses to or about the other person any obscene language or threat to inflict injury to
liforniaCal. Penal Code § 653(m)the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor.Every person who makes repeated telephone calls or makes repeated contact by means of an electronic
communication device with intent to annoy another person at his or her residence is, whether or not conversation
ensues from making the telephone call or electronic contact, guilty of a misdemeanor.
Harassment: With intent to harass, initiates communication with a person, by telephone, computer, computer
oradoColo. Rev. Stat. § 18-9-111network, or computer system in a manner intended to harass or threaten bodily injury or property damage, ormakes any comment, request, suggestion, or proposal by telephone, computer, computer network, or computer
system that is obscene.
A person is guilty of harassment in the first degree when, with the intent to harass, annoy, alarm or terrorize
ⁱ^{ki/CRS-RL34651}another person, he threatens to kill or physically injure that person or any other person, and communicates such
^g/wthreat by telephone, or by telegraph, mail, computer network, as defined in section 53a-250, or any other form of
^s^.orwritten communication, in a manner likely to cause annoyance or alarm and has been convicted of a previous
^le^akicutConn. Gen. Stat. felony.
§ 53A-182-83A person is guilty of harassment in the second degree when: (2) with intent to harass, annoy or alarm another
^://wiki
^h^ttpperson, he communicates with a person by telegraph or mail, by electronically transmitting a facsimile through
connection with a telephone network, by computer network, as defined in section 53a-250, or by any other form of
written communication, in a manner likely to cause annoyance or alarm.
A person is guilty of harassment when, with intent to harass, annoy or alarm another person: (2) Communicates
lawareDel. Code 11 § 1311with a person by telephone, telegraph, mail or any other form of written or electronic communication in a manner
which the person knows is likely to cause annoyance or alarm.

CRS-31
CitationSelected Statutory Language
“Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words,
images, or language by or through the use of electronic mail or electronic communication, directed at a specific
person, causing substantial emotional distress to that person and serving no legitimate purpose. (2) Any person
who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of
stalking, a misdemeanor of the first degree; (3) Any person who willfully, maliciously, and repeatedly follows,
harasses, or cyberstalks another person, and makes a credible threat with the intent to place that person in
Fla. Stat. § 784.048reasonable fear of death or bodily injury of the person, or the person’s child, sibling, spouse, parent, or dependent,commits the offense of aggravated stalking, a felony of the third degree; (4) Any person who, after an injunction
for protection against repeat violence, sexual violence, or dating violence , or an injunction for protection against
domestic violence , or after any other court-imposed prohibition of conduct toward the subject person or that
person’s property, knowingly, willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another
person commits the offense of aggravated stalking, a felony of the third degree; (5) Any person who willfully,
maliciously, and repeatedly follows, harasses, or cyberstalks a minor under 16 years of age commits the offense of
aggravated stalking, a felony of the third degree.
ⁱ^{ki/CRS-RL34651}A person commits the offense of harassment if, with intent to harass, annoy, or alarm any other person, that
^g/wperson: repeatedly makes telephone calls, facsimile, or electronic mail transmissions without purpose of legitimate
^s^.or
^le^akHawaii Rev. Stat. § 711-communication; Repeatedly makes a communication anonymously or at an extremely inconvenient hour;
aii1106repeatedly makes communications, after being advised by the person to whom the communication is directed that
^://wikifurther communication is unwelcome; or makes a communication using offensively coarse language that would
^h^ttpcause the recipient to reasonably believe that the actor intends to cause bodily injury to the recipient or another or
damage to the property of the recipient or another.
Harassment through electronic communications is the use of electronic communication for any of the following
purposes: (1) Making any comment, request, suggestion or proposal which is obscene with an intent to offend; (2)
Interrupting, with the intent to harass, the telephone service or the electronic communication service of any person;
(3) Transmitting to any person, with the intent to harass and regardless of whether the communication is read in its
entirety or at all, any file, document, or other communication which prevents that person from using his or her
oisIll. Comp. Stat. 720 § 1351-2telephone service or electronic communications device; (3.1) Transmitting an electronic communication orknowingly inducing a person to transmit an electronic communication for the purpose of harassing another person
who is under 13 years of age, regardless of whether the person under 13 years of age consents to the harassment, if
the defendant is at least 16 years of age at the time of the commission of the offense; (4) Threatening injury to the
person or to the property of the person to whom an electronic communication is directed or to any of his or her
family or household members; or (5) Knowingly permitting any electronic communications device to be used for
any of the purposes mentioned in this subsection (a). “Electronic communication” means any transfer of signs,

CRS-32
CitationSelected Statutory Language
signals, writings, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectric or photooptical system.
A person who, with intent to harass, annoy, or alarm another person but with no intent of legitimate
anaInd. Code § 35-45-2-2communication: uses a computer network (as defined in IC 35-43-2-3(a)) or other form of electroniccommunication to: (A) communicate with a person; or (B) transmit an obscene message or indecent or profane
words to a person.
A person commits harassment when, with intent to intimidate, annoy, or alarm another person, the person does any
aIowa Code § 708.7of the following: Communicates with another by telephone, telegraph, writing, or via electronic communication
without legitimate purpose and in a manner likely to cause the other person annoyance or harm.
Md. Code § 3-3-805A person may not use electronic mail with the intent to harass: (1) one or more persons; or (2) by sending lewd,lascivious, or obscene material.
Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time
ⁱ^{ki/CRS-RL34651}directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer
^g/wMass. Gen. Laws § 265-substantial emotional distress, shall be guilty of the crime of criminal harassment. Such conduct or acts described
^s^.or43Ain this paragraph shall include, but not be limited to, conduct or acts conducted by mail or by use of a telephonic or
^le^aktelecommunication device including, but not limited to, electronic mail, Internet communications or facsimile
communications.
^://wikiA person shall not post a message through the use of any medium of communication, including the Internet or a
^h^ttpcomputer, computer program, computer system, or computer network, or other electronic medium of
communication, without the victim’s consent, if all of the following apply: (a) The person knows or has reason to
Mich. Comp. Laws §know that posting the message could cause 2 or more separate noncontinuous acts of unconsented contact with thevictim; (b) Posting the message is intended to cause conduct that would make the victim feel terrorized,
750.411sfrightened, intimidated, threatened, harassed, or molested; (c) Conduct arising from posting the message would
cause a reasonable person to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened,
harassed, or molested; (d) Conduct arising from posting the message causes the victim to suffer emotional distress
and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

CRS-33
CitationSelected Statutory Language
Harassment and stalking crimes. A person who harasses another by committing any of the following acts is guilty
of a gross misdemeanor: directly or indirectly manifests a purpose or intent to injure the person, property, or rights
Minn. Stat. § 609.749of another by the commission of an unlawful act; stalks, follows, monitors, or pursues another, whether in person
or through technological or other means; repeatedly mails or delivers or causes the delivery by any means,
including electronically, of letters, telegrams, messages, packages, or other objects.
It shall be unlawful for any person: (a) To make any comment, request, suggestion or proposal by means of
telecommunication or electronic communication which is obscene, lewd or lascivious with intent to abuse,
threaten or harass any party to a telephone conversation, telecommunication or electronic communication; (b) To
Miss. Code § 97-29-45make a telecommunication or electronic communication with intent to terrify, intimidate or harass, and threaten toinflict injury or physical harm to any person or to his property; (c) To make a telephone call, whether or not
conversation ensues, without disclosing his identity and with intent to annoy, abuse, threaten or harass any person
at the called number;... (f) Knowingly to permit a computer or a telephone of any type under his control to be used
for any purpose prohibited by this section.
ⁱ^{ki/CRS-RL34651}V.A.M.S. § 565.090A person commits the crime of harassment if he or she: Knowingly frightens, intimidates, or causes emotional
^g/wdistress to another person by anonymously making a telephone call or any electronic communication.
^s^.orA person commits the offense of violating privacy in communications if the person knowingly or purposely: (a)
^le^akwith the purpose to terrify, intimidate, threaten, harass, annoy, or offend, communicates with a person by
^://wikielectronic communication and uses obscene, lewd, or profane language, suggests a lewd or lascivious act, or
^h^ttpMCA § 45-8-213threatens to inflict injury or physical harm to the person or property of the person. The use of obscene, lewd, or
profane language or the making of a threat or lewd or lascivious suggestions is prima facie evidence of an intent to
terrify, intimidate, threaten, harass, annoy, or offend; (b) uses an electronic communication to attempt to extort
money or any other thing of value from a person or to disturb by repeated communications the peace, quiet, or
right of privacy of a person at the place where the communications are received.
A person is guilty of a misdemeanor if such person: (d) Knowingly communicates any matter of a character
tending to incite murder, assault, or arson; (e) With the purpose to annoy or alarm another, communicates any
matter containing any threat to kidnap any person or to commit a violation of RSA 633:4; or a threat to the life or
safety of another; or (f) With the purpose to annoy or alarm another, having been previously notified that the
w HampshireN.H. Rev. Stat. § 644-4recipient does not desire further communication, communicates with such person, when the communication is not
for a lawful purpose or constitutionally protected. “Communicates’‘ means to impart a message by any method of
transmission, including but not limited to telephoning or personally delivering or sending or having delivered any
information or material by written or printed note or letter, package, mail, courier service or electronic
transmission, including electronic transmissions generated or communicated via a computer.

CRS-34
CitationSelected Statutory Language
A person commits a petty disorderly persons offense if, with purpose to harass another, he: Makes, or causes to be
made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively
w JerseyN.J.S. § 2C 33-4coarse language, or any other manner likely to cause annoyance or alarm; Subjects another to striking, kicking,
shoving, or other offensive touching, or threatens to do so; or engages in any other course of alarming conduct or
of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
Aggravated harassment in the second degree: A person is guilty of aggravated harassment in the second degree
w YorkN.Y. Penal Law § 240.30when, with intent to harass, annoy, threaten or alarm another person, he or she: (b) causes a communication to beinitiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone,
or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm.
It is unlawful for a person to: (1) Use in electronic mail or electronic communication any words or language
threatening to inflict bodily harm to any person or to that person’s child, sibling, spouse, or dependent, or physical
injury to the property of any person, or for the purpose of extorting money or other things of value from any
person. (2) Electronically mail or electronically communicate to another repeatedly, whether or not conversation
ⁱ^{ki/CRS-RL34651}th CarolinaN.C.G.S.A. § 14-196.3ensues, for the purpose of abusing, annoying, threatening, terrifying, harassing, or embarrassing any person. (3)
^g/wElectronically mail or electronically communicate to another and to knowingly make any false statement
^s^.orconcerning death, injury, illness, disfigurement, indecent conduct, or criminal conduct of the person electronically
^le^akmailed or of any member of the person’s family or household with the intent to abuse, annoy, threaten, terrify,
harass, or embarrass. (4) Knowingly permit an electronic communication device under the person’s control to be
^://wikiused for any purpose prohibited by this section.
^h^ttp
No person shall knowingly make or cause to be made a telecommunication, or knowingly permit a
telecommunication to be made from a telecommunications device under the person’s control, to another, if the
caller does any of the following: (1) Fails to identify the caller to the recipient and makes the telecommunication
with purpose to harass or abuse any person at the premises, whether or not actual communication takes place
between the caller and a recipient; (4) Knowingly states to the recipient that the caller intends to cause damage to
or destroy public or private property, and the recipient, any member of the recipient’s family, or any other person
ioOhio Code § 2917.21Awho resides at the premises has the responsibility of protecting, or insures the property that will be destroyed or
damaged; (5) Knowingly makes the telecommunication to the recipient, to another person at the premises, or to
those premises, and the recipient or another person at those premises previously has told the caller not to make a
telecommunication to those premises or to any persons at those premises. No person shall make or cause to be
made a telecommunication, or permit a telecommunication to be made from a device under the person’s control,
with purpose to abuse, threaten, or harass another person. “Telecommunication” means transmission over any
communications system by any method, including, but not limited to electronic, digital, or analog.

CRS-35
CitationSelected Statutory Language
It shall be unlawful for a person who, by means of a electronic communication device, willfully either: 1. Makes
any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, or indecent; 2. Makes
electronic communication with intent to terrify, intimidate or harass, or threaten to inflict injury or physical harm
to any person or property of that person; 3. Makes an electronic communication, whether or not conversation
lahomaOkla. Stat. 21 § 1172ensues, with intent to put the party called in fear of physical harm or death; 4. Makes electronic communication,whether or not conversation ensues, without disclosing the identity of the person making the call or
communication and with intent to annoy, abuse, threaten, or harass any person at the called number; 5. Knowingly
permits any electronic communication under the control of the person to be used for any purpose prohibited by this
section; and 6. In conspiracy or concerted action with other persons, makes repeated calls or electronic
communications or simultaneous calls or electronic communications solely to harass any person.
A person commits the crime of harassment if the person intentionally harasses or annoys another person by: (1)
Subjects another to alarm by conveying a telephonic, electronic or written threat to inflict serious physical injury
Or. Rev. Stat. § 166.065on that person or to commit a felony involving the person or property of that person or any member of thatperson’s family, which threat reasonably would be expected to cause alarm. (2) A person is criminally liable for
ⁱ^{ki/CRS-RL34651}harassment if the person knowingly permits any telephone or electronic device under the person’s control to be
^g/wused in violation of subsection (1) of this section.
^s^.or
^le^akHarassment by communication or address: A person commits the crime of harassment by communication or
address when, with intent to harass, annoy or alarm another, the person: communicates to or about such other
^://wikinnsylvaniaPa. Cons. Stat. 18 § 5504person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures; or communicates
^h^ttprepeatedly in an anonymous manner; communicates repeatedly at extremely inconvenient hours; or communicates
repeatedly in a manner not covered.
“Harassment in the second degree” means a pattern of intentional, substantial, and unreasonable intrusion into
h CarolinaS.C. Code § 16-3-700(a)2the private life of a targeted person that serves no legitimate purpose and causes the person and would cause areasonable person in his position to suffer mental or emotional distress. Harassment in the second degree may
include, but is not limited to, verbal, written, or electronic contact that is initiated, maintained, or repeated.

CRS-36
CitationSelected Statutory Language
It is a Class 1 misdemeanor for a person to use a telephone or other electronic communication device for any of
the following purposes: (1) To contact another person with intent to terrorize, intimidate, threaten, harass or annoy
such person by using obscene or lewd language or by suggesting a lewd or lascivious act; (2) To contact another
h DakotaS.D. Cod. Laws § 49-31-31person with intent to threaten to inflict physical harm or injury to any person or property; (3) To contact anotherperson with intent to extort money or other things of value; (4) To contact another person with intent to disturb
that person by repeated anonymous telephone calls or intentionally failing to replace the receiver or disengage the
telephone connection; (5) For a person to knowingly permit a telephone or other electronic communication device
under his or her control to be used for a purpose prohibited by this section.
A person commits an offense who intentionally: Threatens, by telephone, in writing, or by electronic
Tenn. Code § 39-17-308communication, including electronic mail or Internet services, to take action known to be unlawful against any
person, and by this action knowingly annoys or alarms the recipient.
Tx. Penal Code § 42.07Harassment: A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass
another, he: (1) initiates communication by telephone, in writing, or by electronic communication and in the
ⁱ^{ki/CRS-RL34651}(Provision ruledcourse of the communication makes a comment, request, suggestion, or proposal that is obscene; (2) threatens, by
^g/wxasunconstitutional by Courttelephone, in writing, or by electronic communication, in a manner reasonably likely to alarm the person receiving
^s^.orof Appeals of Texas Aprilthe threat, to inflict bodily injury on the person or to commit a felony against the person, a member of his family
^le^ak3, 2008, Karenev v. Texas,or household, or his property...; (7) sends repeated electronic communications in a manner reasonably likely to

2008 WL 902799.)harass, annoy, alarm, abuse, torment, embarrass, or offend another.

^://wiki
^h^ttpA person is guilty of electronic communication harassment if with intent to annoy, alarm, intimidate, offend,
abuse, threaten, harass, frighten, or disrupt the electronic communications of another, the person: (a) makes
repeated contact by means of electronic communications, whether or not a conversation ensues; or after the
recipient has requested or informed the person not to contact the recipient, and the person repeatedly or
ahUtah code § 76-9-201continuously contacts the electronic communication device of the recipient; or causes an electroniccommunication device of the recipient to ring or to receive other notification of attempted contact by means of
electronic communication; (b) makes contact by means of electronic communication and insults, taunts, or
challenges the recipient of the communication or any person at the receiving location in a manner likely to
provoke a violent or disorderly response; (c) makes contact by means of electronic communication and threatens
to inflict injury, physical harm, or damage to any person or the property of any person.
Disturbing peace by use of telephone or other electronic communications: A person who, with intent to terrify,

13 V.S.A. § 1027intimidate, threaten, harass or annoy, makes contact by means of a telephonic or other electronic communicationwith another and (i) makes any request, suggestion or proposal which is obscene, lewd, lascivious or indecent; (ii)

threatens to inflict injury or physical harm to the person or property of any person; or (iii) disturbs, or attempts to

CRS-37
CitationSelected Statutory Language
disturb, by repeated anonymous telephone calls or other electronic communications, whether or not conversation
ensues, the peace, quiet or right of privacy of any person at the place where the communication or communications
are received.
Harassment by computer: If any person, with the intent to coerce, intimidate, or harass any person, shall use a
iaVa. Code 18.2 § 152.7.1computer or computer network to communicate obscene, vulgar, profane, lewd, lascivious, or indecent language,or make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act, he shall be guilty
of a Class 1 misdemeanor.
Wash. Rev. Code §A person is guilty of harassment if: The person by words or conduct places the person threatened in reasonablefear that the threat will be carried out. “Words or conduct” includes, in addition to any other form of

9A.46.020communication or conduct, the sending of an electronic communication.

Obscene, anonymous, harassing and threatening communications by computer: It is unlawful for any person,
with the intent to harass or abuse another person, to use a computer to: (1) Make contact with another without
ⁱ^{ki/CRS-RL34651}irginiaW. Va. Code § 61-3C-14Adisclosing his or her identity with the intent to harass or abuse; (2) Make contact with a person after beingrequested by the person to desist from contacting them; (3) Threaten to commit a crime against any person or
^g/wproperty; or (4) Cause obscene material to be delivered or transmitted to a specific person after being requested to
^s^.ordesist from sending such material.
^le^ak
A person is guilty of harassment when: (a) With intent to frighten, intimidate, threaten, abuse or harass another
^://wikiperson, sends a message to the person on an electronic communication system and in that message threatens to
^h^ttpinflict injury or physical harm to any person or the property of any person or sends a message on an electronic
communication system with the reasonable expectation that the person will receive the message and in that
message threatens to inflict injury or physical harm to any person or the property of any person. (c) With intent to
frighten, intimidate, threaten or abuse another person, sends a message to the person on an electronic
Wis. Stat. § 947.0125communication system and in that message uses any obscene, lewd or profane language or suggests any lewd orlascivious act or sends a message on an electronic communication system with the reasonable expectation that the
person will receive the message and in that message uses any obscene, lewd or profane language or suggests any
lewd or lascivious act or sends a message to the person on an electronic communication system while intentionally
preventing or attempting to prevent the disclosure of his or her own identity... (f) While intentionally preventing or
attempting to prevent the disclosure of his or her identity and with intent to frighten, intimidate, threaten or abuse
another person, sends a message on an electronic communication system with the reasonable expectation that the
person will receive the message.