Cyberbullying and the Constitution

The Maryland Senate has unanimously approved a new bill (“Grace’s Law 2.0”) expanding the state’s “cyberbullying” law. The bill would increase maximum penalties for violation to three years in prison while removing “requirements in current law that a harassing message must be sent directly to a victim and language that required a continuing course of conduct. The new law would allow prosecution for a single, significant act that has the effect of intimidating, tormenting or harassing a minor and which causes physical injury or serious emotional distress to a minor to be prosecuted if the actions were malicious and had the intended effect.”

In response to ongoing concern that the measure infringes the First Amendment, chief bill sponsor and Judiciary Committee Chair Sen. Bobby Zirkin (D-Baltimore County) said, “… If we’ve overstepped our bounds in any part of this, then we’ll find out when the Court of Appeals says so.” Put differently, we’re passing a bill parts of which may be unconstitutional, but we’re going to leave that to the courts to spot and fix.

One problem with this “it’s not our department” view is that it’s not just the judges on the Court of Appeals who take an oath to support the Constitution, it’s also the members of the Maryland General Assembly (related, federal). I was critical of the original “Grace’s Law” at the time; see also here.