By Jules Polonetsky & Stacey Gray
A New Method to Address Cyberbullying in the United States: The Application of a Notice-and-Takedown Model as a Restriction on Cyberbullying Speech
By Brian O’Shea
Cyberbullying is a serious public health problem affecting minors across the United States. Debilitating physical, psychological, and educational consequences are commonplace, and the effects carry on into adulthood. Recently, in the European Union, the European Union Court of Justice formally adopted a “right to be forgotten,” giving Internet users the right to have certain content “erased” from the Internet—for the purpose of maintaining privacy. Some have argued that the right to be forgotten could be used as a tool against cyberbullying.
Thus far, the United States has responded to the issue of cyberbullying at the state -level. The effectiveness of these state responses, however, has, however, been questioned. Furthermore, the First Amendment stands in the way of any formal recognition of the right to be forgotten. If U.S. policymakers do decide to respond to cyberbullying at the national level, however, the notice-and-takedown provisions contained within the Digital Millennium Copyright Act of 1998 (DMCA) could provide an alternative model for implementing a mechanism similar to the right to be forgotten. Under this proposed model, minors could, through their parent or guardian, petition a provider of online services to erase narrow categories of speech associated with cyberbullying, with appropriate safeguards in place to protect speakers’ First Amendment rights.
Freedom of Speech, The War on Terror, and What’s YouTube Got to Do with it: American Censorship During Times of Military Conflict
By Melissa J. Morgans
The population of the United States has historically ignored the tradition of abridging First Amendment speech protections during times of war. While the Supreme Court exhibits restraint in making decisions that create speech restrictions, it has acknowledged the differences between an individual’s rights during times of peace and times of war. The Executive and Legislative branches have continued to limit an individual’s right to freedom of speech during times of war through congressional act and executive orders.
Today, acts of terrorism represent a new, more sinister form of speech that has evolved in tandem with the modern War on Terror. Those acts, videos of terrorist activities, and active recruitment postings, have become physical representations of terrorist entities on American websites—accessed by American web users and influencing American media.
It is now time that the historic tradition of censoring wartime speech transforms into a legally regulated practice that acknowledges an unprotected form of wartime speech susceptible to non-judicial restriction. This goal can be met by proposing a new FCC regulation of speech that outlaws video and photographic representations of acts of terrorism or active recruitment on the Internet and social media websites. The FCC represents an able and practical body, as it is the current regulator of obscene and indecent speech on broadcast media. At the very least, this regulation will spark a much-needed conversation on the discrepancy between historical tradition and the real-world practice of wartime censorship, as well as how the Internet and new media forms have shaped the American War on Terror.
By Laura K. Hamilton
The Internet connects us all in ways the law has yet to fully understand. In recent years, Google has developed into a powerful search engine that effectively functions as a monopoly on indexing Internet content. We have also created an entirely new industry around social media where individual users freely share information, both trivial and profound, about every aspect of their lives. And then we have developed an online memory, with cached data and viral sharing, such that almost nothing on the Internet can ever be truly deleted.
Personal identity has become a twofold construct: an offline identity, which an individual displays in his or her interpersonal interactions; and an online identity, which an individual displays on the Internet in various forms, for friends, family, acquaintances and strangers alike. With new technology has also come new ways to harm others, and because our twofold identities are not always easy to separate, online harms can creep into offline harms in ways the law has yet to anticipate. A federal statute is necessary to update and enforce our cultural understanding of identity and the human rights to which we are entitled under the federal Constitution.