Online Bullying May Alter the Future of the First Amendment

The First Amendment affords great protection to citizens ensuring their right to speak freely. However, there are clear limits on what type of speech the Court is willing to protect. For example, speech that incites imminent violence or is obscene is not protected speech.

Doxxing and Swatting are new forms of online harassment. Doxxing is the process of obtaining an individual’s private information, such as phone number, social security number, or home address, and posting this information online without the individual’s permission.[1] Doxxing was first used in the 2000’s and Doxbin, a website used to host files which contains individual’s personal information, launched in 2011.[2]

The reason people “doxx” is to make their victim nervous and scared of what information may be posted next.[3] Doxxing is more about intimidation and less about the availability of the information.[4] Internet users also doxx to combat online bullying. For example, if an individual or a group is being bullied by a single individual online then a group of people can “band together and search the web for personal documents of an online bully in order to ‘out’ the bully by exposing his or her identity.”[5]

Swatting was first considered a type of prank call; however, it is now a form of cyberbullying.[6] When bullies ‘swat’ they “convince a police dispatcher to send an entire SWAT team in response to a violent scenario allegedly in progress.”[7] Swatting is done for bragging rights or to cause harm to the victim by putting them in a violent situation.[8]

For example, in February 2015, Tyran Dobbs was the victim of a swatting situation where an unknown caller claimed to be Dobbs and told police he would kill hostages unless he received $15,000.[9] Police arrived to Dobbs’ house where Dobbs was seen in the living room and ordered to come outside.[10] Dobbs, completely unaware of the potential hostage situation, he turned around in the living room and attempted to get his girlfriend, but was shot between the eyes with a rubber bullet by the police.[11] Dobbs claims to suffer from facial nerve pain where he was shot and intense psychological pain from his experience with the police officers.[12] Dobbs is now seeking damages from the police department and the swatter.[13] Swatting situations puts police officers in uneasy situations with trying to decipher real and fake threats while also balancing public safety and the goal of immediate assistance.

General cyber-harassment is becoming a prevalent social problem. Studies have found that 73% of adults have witnessed a person being harassed online and 40% have personally experienced online harassment.[14] Young women who are between the ages of 18 and 24 experience more severe types of online harassment at higher levels. Twenty six percent of women in that age range have been stalked and 25% have been victims of online sexual harassment.[15] While these statistics indicate a problem, especially for young woman, there has been a lack of response from law enforcement. Amanda Hass, a woman who received death threats from a man via Twitter, explained that law enforcement had a lackluster response and that online harassment, especially for women, has serious consequences including emotional distress, financial distress through legal fees and online protections services, and potentially missed wages.[16]

Online speech becomes the new normal method of communication. With new forms of communication, the Court will have to decide what type of speech is afforded First Amendment Protection and what is not. For more information on the constitutionality of regulating online speech and cyberbullying check out Laura Pavlik Raatjes’ article at http://repository.jmls.edu/cgi/viewcontent.cgi?article=1027&context=lawreview.

[1] Victoria McIntyre, “Do(x) You Really Want to Hurt Me?”: Adapting Iied As A Solution to Doxing by Reshaping Intent, 19 Tul. J. Tech. & Intell. Prop. 111, 113 (2016).

[2] Megan Garber, Doxing: An Etymology, The Atlantic (Mar. 6, 2014), http://www.theatlantic.com/technology/archive/2014/03/doxing-an-etymology/284283/.

[3] Sameer Hinduja, Doxing and Cyberbullying, Cyberbulling Res. Ctr. (Sept. 16, 2015), http://cyberbullying.org/doxing-and-cyberbullying/.

[4] So You’ve Been Doxed: A Guide to Best Practices, Crash Override Network (Mar. 21, 2015), http://crashoverridenetwork.tumblr.com/post/114270394687/so-youve-been-doxed-a-guide-to-best-practices.

[5] Samantha H. Scheller, A Picture Is Worth A Thousand Words: The Legal Implications of Revenge Porn, 93 N.C. L. Rev. 551, 594 (2015) (citing Emily Bazelon, The Online Avengers: Are Antibullying Activists the Saviors of the Internet–or Just a Different Kind of Curse?, N.Y. Times (Jan. 15, 2014), http://www.nytimes.com/2014/01/19/magazine/the-online-avengers.html?_r=0)

[6] See What is Cyberbullying, U.S. Dep’t of Health & Human Servs., http://www.stopbullying.gov/cyberbullying/what-is-it/index.html (last visited Jun 6, 2017) (defining cyberbullying as bullying using devices such as “cell phones, computers, and tablets as well as communication tools including social media sites, text messages, chat and websites.”)

[7] Elizabeth M. Jaffe, Swatting: The New Cyberbullying Frontier After Elonis v. United States, 64 Drake L. Rev. 455, 470 (2016).

[8] Jaffe, supra.

[9] Jennifer Donelan, ABC 7 On Your Side Has Exclusive Interview with Md. Victim Badly Injured at Hands of Police After “Swatting” Prank Nightmare, WJLA. com (July 15, 2015), http://wjla.com/features/7-on-your-side/fbi-says-swatting-is-a-growing-crime-trend-both-locally-and-nationally–115595.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Nancy Leong & Joanne Morando, Communication in Cyberspace, 94 N.C. L. Rev. 105, 126 (2015)

[15] Id.

[16] Id. at 126-27.