[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]




                               BEFORE THE

                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES


                             FIRST SESSION


                        H.R. 1966 and H.R. 3630


                           SEPTEMBER 30, 2009


                           Serial No. 111-76


         Printed for the use of the Committee on the Judiciary

      Available via the World Wide Web: http://judiciary.house.gov

52-547                    WASHINGTON : 2009
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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida               STEVE KING, Iowa
STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
  Georgia                            JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
MIKE QUIGLEY, Illinois               JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois          TOM ROONEY, Florida
BRAD SHERMAN, California             GREGG HARPER, Mississippi
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California

            Perry Apelbaum, Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel

        Subcommittee on Crime, Terrorism, and Homeland Security

             ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

JERROLD NADLER, New York             TED POE, Texas
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee               TOM ROONEY, Florida

                      Bobby Vassar, Chief Counsel

                    Caroline Lynch, Minority Counsel

                            C O N T E N T S


                           SEPTEMBER 30, 2009


                               THE BILLS

H.R. 1966, the ``Megan Meier Cyberbullying Prevention Act''......     4
H.R. 3630, the ``Adolescent Web Awareness Requires Education 
  (AWARE) Act''..................................................     8

                           OPENING STATEMENTS

The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Chairman, Subcommittee 
  on Crime, Terrorism, and Homeland Security.....................     1
The Honorable Louie Gohmert, a Representative in Congress from 
  the State of Texas, and Ranking Member, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................    19


The Honorable Linda T. Sanchez, a Representative in Congress from 
  the State of California
  Oral Testimony.................................................    21
  Prepared Statement.............................................    24
The Honorable Debbie Wasserman Schultz, a Representative in 
  Congress from the State of Florida
  Oral Testimony.................................................    33
  Prepared Statement.............................................    35
Mr. Robert M. O'Neil, Law Professor Emeritus, University of 
  Virginia, Charlottesville, VA
  Oral Testimony.................................................    38
  Prepared Statement.............................................    41
Ms. Judi Westberg Warren, President, Web Wise Kids, Santa Ana, CA
  Oral Testimony.................................................    47
  Prepared Statement.............................................    49
Mr. Harvey A. Silverglate, Attorney, Zilkind, Rodriguez, Lunt & 
  Duncan, LLP, Cambridge, MA
  Oral Testimony.................................................    56
  Prepared Statement.............................................    58
Ms. Nancy Willard, M.S., J.D., Director, Center for Safe and 
  Responsible Internet Use, Eugene, OR
  Oral Testimony.................................................   102
  Prepared Statement.............................................   107
Mr. John Palfrey, Law Professor, Harvard Law School, Cambridge, 
  Oral Testimony.................................................   126
  Prepared Statement.............................................   128


Material Submitted for the Hearing Record........................   145



                     WEDNESDAY, SEPTEMBER 30, 2009

              House of Representatives,    
              Subcommittee on Crime, Terrorism,    
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 3:34 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Robert 
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
    Present: Representatives Scott, Wasserman Schultz, Gohmert, 
and Lungren.
    Staff Present: (Majority) Bobby Vassar, Subcommittee Chief 
Counsel; Karen Wilkinson, Federal Public Defender Office 
Detailee; Joe Graupensperger, Counsel; Veronica Eligan, 
Professional Staff Member; and (Minority) Caroline Lynch, 
    Mr. Scott. The Subcommittee will now come to order.
    I am pleased to welcome you today to the hearing before the 
Subcommittee on Crime, Terrorism, and Homeland Security on 
``Cyberbullying and Other Online Safety Issues for Children.''
    The term ``cyberbullying'' has many different definitions 
and can cover many different types of speech. It can consist of 
rumors or lies, a publication of something meant to be private, 
or the impersonation of another person. Or it can encompass 
more problematic speech, involving threats, stalking, or 
predatory behavior.
    The cyberbully can reveal his or her identity or remain 
anonymous. While perpetrators may appear anonymous, however, 
reports indicate that targets often know who their perpetrators 
are. And the perpetrators are often friends or, more likely, 
former friends.
    The term ``cyberbullying'' commonly is used to refer to 
communications among children and youth. Adults may be involved 
in cyberbullying, either as bullies or targets, but studies 
indicate that the majority of those involved in cyberbullying 
are children and youth.
    Bullying and harassment can occur both online and offline. 
On the playground, bullying may take the form of pushing, 
hitting, threatening, or other assaultive conduct. On the 
Internet or on cell phones, bullying comes in the form of 
speech. Targets of cyberbullying may also be targets of offline 
bullying. One report found that over 42 percent of youth who 
reported being cyberbullied also reported being bullied at 
    Because cyberbullying has no clear definition, it is 
difficult to measure. Lack of an agreed-upon definition also 
makes it difficult to compare studies or determine trends. 
According to the Internet Safety Technical Task Force, directed 
by the Berkman Center for Internet and Society at Harvard 
University, bullying and harassment by peers are most 
frequently threats that minors face both online and offline.
    All seem to agree that cyberbullying and harassment happens 
to a significant minority of youth. Bullying appears to be more 
common than harassment. Sibling-based harassment also occurs, 
with one study reporting that 30 percent of 7th- through 9th-
graders reported online victimization from a non-parent family 
    Some children and youth are involved in cyberbullying as 
both victims and bullies. A recent study found that 27 percent 
of girls who were bullied online retaliated back with their own 
    Much cyberbullying conduct is typical adolescent behavior, 
but when it occurs online it is taken to a new level. Insults, 
harassing, and bullying statements are broadcast to thousands 
of others in seconds. Once it is out, statements cannot be 
taken back. Cyberbullying can be devastating to youth and, for 
some teenagers, can result in tragic endings, such as Megan 
Meier's suicide.
    Unchecked, the problem of cyberbullying likely will only 
grow worse. We have two bills before us today that take two 
different approaches to the problem.
    H.R. 1966, the ``Megan Meier Cyberbullying Prevention 
Act,'' addresses the problem by creating a new Federal crime 
prohibiting communications made with the intent to coerce, 
intimidate, harass, or cause substantial emotional distress 
that use electronic means to support severe, repeated, and 
hostile behavior. The new crime provides for a felony penalty.
    We want to do all we can do to protect our children and 
youth, but we don't want the unintended consequences of 
converting many of our youth into criminals, particularly 
felons. The label ``felon'' lasts a lifetime, and we need to be 
extremely careful before proceeding down this path.
    Finally, as with any attempt to regulate speech, we must be 
careful not to violate the constitutional right to free speech 
and due process. So I look forward to hearing what our experts 
have to say about these concerns.
    H.R. 3630, the ``Adolescent Web Awareness Requires 
Education Act,'' the ``AWARE Act,'' seeks to address the 
problem of online safety issues for youth, including 
cyberbullying, through education and prevention. It creates a 
grant program to be implemented by the Attorney General in 
accordance with best practices and authorizes $125 million for 
grants to carry out Internet crime awareness and cyber-crime 
prevention programs.
    While we don't have any bills before us that focus on how 
technology companies can help with this problem, I am also 
interested from hearing from our witnesses on this issue. We 
may need to revisit the immunity portion of section 230 of the 
``Communications Decency Act'' to determine whether the law 
went too far in providing immunity to service providers who 
intentionally allow or even encourage cyberbullying and 
harassment to flourish on their sites.
    This is a serious problem, and there is no easy solution. 
And I appreciate the efforts taken by both the gentlelady from 
California, Ms. Sanchez, and the gentlelady from Florida, Ms. 
Wasserman Schultz, to address the problem. And I look forward 
to hearing from our experts on how we can and should work 
together to address the problem.
    [The bills, H.R. 1966 and H.R. 3630 follow]:


    Mr. Scott. I now recognize the Ranking Member of the 
Subcommittee, the gentleman from Texas, Judge Gohmert.
    Mr. Gohmert. Thank you, Chairman Scott.
    As long as there have been children in this world, there 
have been bigger, meaner children who pick on them. As a small 
child, often the smallest in my class, youngest in my class in 
elementary school and junior high, I certainly know about that 
and about being picked on by bullies.
    But when I was in school, the bully could be found in the 
lunchroom or the school yard, teasing kids, pushing others, or 
even taking things from them because they were big enough to do 
so. Times have changed. Now we have chat rooms, social 
networking sites, and use terms like ``cyberbullying'' and 
``cyberstalking.'' It appears the school bully has found a new 
    According to the National Crime Prevention Council, 
cyberbullying affects nearly half of all American teenagers. 
Cyberbullies send mean text messages, broadcast insulting or 
degrading comments on the Internet, and even post pictures of 
the victim for others to see.
    My own family has been bullied on the Internet by political 
bloggers trying to hurt me and my family because of my 
political positions. Liberal blogs have called me all kinds of 
names and made efforts to harass me. Some letters to the editor 
intended to intimidate and harass have been sent by e-mail. So 
perhaps this would be a way of stopping that.
    But 13-year-old Megan Meier, we know her tragic case in 
which she committed suicide after being told by a boy she had 
been talking to on MySpace that the world would be a better 
place without her. As we know, the boy, ``Josh,'' was really 
the mother of one of Megan's classmates seeking retribution 
against Megan for allegedly spreading rumors about the woman's 
    Ryan Patrick Halligan, also 13, committed suicide after 
receiving taunting and insulting messages from his middle 
school classmates questioning his sexuality.
    These tragedies are symptomatic of a much larger problem. 
Why do our teenagers and even their parents think this is 
acceptable behavior? What are we teaching our young people in 
our homes and schools about treating others with respect, as 
you would want to be treated?
    Today we will be examining two bills that seek to address 
this new issue of cyber harassment. In the first, H.R. 1966, it 
proposes a new Federal criminal offense for cyberbullying. 
Under this law, a person could face up to 2 years in Federal 
prison for sending a communication intended to coerce, 
intimidate, harass, or cause substantial emotional distress to 
another person.
    This proposal raises several significant concerns, not the 
least of which is its encroachment on protected speech. The 
Supreme Court has identified those categories of speech that 
fall outside the protections of the first amendment, including 
fighting words, obscenity, or what the court characterizes as, 
quote, ``true threats,'' unquote.
    True threats of bodily harm are not protected. They are 
already crimes. But statements intended to coerce, intimidate, 
harass, or cause substantial emotional distress, however 
unsavory, likely do not fall within the category of true 
    Moreover, are Federal criminal penalties warranted for 
cyberbullying? Criminal law is or should be the purview of the 
States because the Federal Government lacks a general police 
power. As the Supreme Court noted back in 1903 in Champion v. 
Ames, ``To hold that Congress has general police power would be 
to hold that it may accomplish objects not entrusted to the 
general government and to defeat the operation of the 10th 
amendment.'' And, according to the Congressional Research 
Service, 26 States have already enacted cyberbullying statutes, 
the majority of which carry misdemeanor, not felony, penalties.
    Unlike cyberstalking crimes, which typically involve a 
credible threat of harm to the victim, cyberbullying does not. 
Cyberbullying is characterized as intending embarrassment, 
annoyance, or humiliation to the victim. This conduct is 
deplorable, but the question is whether or not it is criminal.
    Most cyberbullies are teenagers or middle-school-age 
children. The legislation proposes sending these young people 
to Federal prison for embarrassing or humiliating a classmate. 
In fact, under-age cyberbullies tried under this statute would 
most likely be adjudicated as juveniles and not tried as 
adults. And since there is no juvenile detention facility in 
the Federal system, these juveniles would be housed in State or 
private detention facilities, if at all.
    The second bill before us today, H.R. 3630, creates a new 
grant program within the Justice Department to fund Internet 
crime awareness and cybercrime prevention programs. But I have 
to question whether a new grant program is what we really need. 
A number of organizations with expertise in this area already 
operate Web sites to combat cyberbullying. The tips and tools 
offered by these sites are free to parents, teachers, and 
    H.R. 3630 requires the Justice Department to first 
undertake a study on the nature, prevalence, and quality of 
Internet crime awareness and cybercrime prevention programs. 
Then the Department must consult with education groups, 
Internet crime awareness, and cybercrime prevention groups and 
prepare detailed guidance for the grant program. This seems 
like a burdensome task, when we already have in place guidance 
from organizations like the National Crime Prevention Council 
and others.
    The question is whether we need to spend another $125 
million of Chinese money that we will have to borrow in order 
to insert the Federal bureaucracy into a problem whose true 
resolution begins at home. Congress should not try to replace 
the parent or the teacher.
    We are currently involved in a truly bipartisan effort that 
includes efforts by the ACLU, with the Heritage Foundation and 
Chairman Scott and I, attempting to begin dismantling the vast 
overcriminalization under Federal law of between 4,000 and 
5,000 Federal crimes.
    Consider this: The playground still has bullies. When a 
bully beats up a smaller student and the smaller student goes 
home, gets on the Internet and says the playground bully is 
mean, ugly, and stupid, it is the smaller student victim that 
has now probably committed a Federal felony under this proposed 
    In our desire to address the problems of the day, Congress 
all too often legislates without first getting to the bottom 
about any unintended consequences and potential damages to the 
    What happened to Megan Meier and Ryan Halligan is tragic, 
is devastating. But Federal legislation does not seem to be the 
answer. Responsible parenting would be a good answer. 
Accountability for our actions is the answer. Arming young 
people with confidence and sense of self-worth to ignore the 
school Internet bully may be the answer.
    Although it is tempting because the proposal before us 
would allow me to pursue and seek indictment and arrest for 
mean-spirited liberals who have been exceedingly mean to me and 
my family, it appears to be another chapter in 
    I look forward to the discussion on these issues, and yield 
back the balance of my time.
    Mr. Scott. Thank you.
    We have two distinguished panels of witnesses here to help 
us consider the issues today. Our first panel consists of 
Members of Congress.
    The first panelist is the gentlelady from the 39th District 
of California, Representative Linda Sanchez. She is in her 
fourth term and is a Member of the Judiciary Committee and the 
Ways and Means Committee. She is a primary author of H.R. 1966, 
the ``Megan Meier Cyberbullying Prevention Act.''
    Our next panelist is the gentlelady from the 20th District 
of Florida, Representative Debbie Wasserman Schultz. She is in 
her third term and is a Member of the Judiciary Committee and 
the Appropriations Committee, where she serves as Chair of the 
Legislative Branch Subcommittee of the Appropriations 
Committee. She is the lead sponsor of H.R. 3630, the ``AWARE 
    And our final panelist, we expected the gentleman from the 
Seventh District of Texas, Representative John Culberson, but 
he was unavoidably detained, and we will have his statement 
entered into the record.*
    *Due to unforeseen events prior to the hearing, Mr. Culberson did 
not submit a statement to the Subcommittee.
    Each witness' written statement will be entered in the 
record in its entirety, so I ask our witnesses to summarize 
your testimony in 5 minutes or less.
    And we will begin with the gentlelady from California.


    Ms. Sanchez. Thank you, Mr. Chairman and Ranking Member 
Gohmert, for allowing me the opportunity to testify today about 
this piece of legislation. I am pleased to be here talking 
about the critical issue of child online safety because it is a 
relatively new form for Congress to be grappling with.
    When I was first elected to Congress, I held a series of 
meetings with local school superintendents and law enforcement 
leaders to learn more about the challenges that they face in 
keeping kids in school and on the right track to becoming 
productive citizens. And, unfortunately, I heard a recurring 
theme during this series of meetings, and that is that bullying 
isn't a harmless prank or some kind of right of passage; it is 
dangerous, both physically and mentally, for students.
    Bullying leads to things like poor school performance, 
absences from school, or even dropping out of school 
altogether. The prospect of assault and harassment can lead a 
child to join a gang for protection. Not only can bullying 
cause physical injuries in the form of wounds, bruises, and 
broken bones, but it can also lead to depression and even 
    That is why I have been working to change Federal law so 
that schools can use Federal funds to address and prevent 
bullying and harassment. But over the last several years, I 
have learned that that approach isn't going to be enough, 
because bullying has gone electronic. It occurs in text 
messages and G-chat, on Facebook and MySpace, on cell phones 
and on the Internet. This literally means that kids can be 
bullied any hour of the day and night and even in their own 
homes, which is a marked contrast to the bullies of yesterday 
that could only bully on the playground.
    Today's kids are so wired into their electronic social 
networks that they type more messages than they speak each day. 
Their virtual world is more real to them than the so-called 
``real world'' is. For those of us over 30, this can be 
difficult to comprehend, so I want to give you an example to 
illustrate the problem.
    Imagine, if you would, in our day when we went to school, a 
student brought out a jumbo-size TV into the school quad and 
played for the entire student body a videotape in which he 
threatened and harassed a second student. By the end of the 
day, everyone--and I mean everyone--would have seen or heard 
about it. Well, that is exactly what cyberbullying is.
    Because of the anonymity and deception in the Internet, 
this form of bullying is particularly dangerous. If Bobby posts 
a video--and I don't mean the Chairman--on his Facebook page 
that harasses and threatens to rape and kill Ashley, that video 
isn't private. It is not buried on Bobby's profile page 
somewhere. It is public. It appears when any of Bobby's 
Facebook friends log in, right up there in front of their 
homepage so they can't miss it. And this story isn't just 
hypothetical. It happened to a brave young woman named Hail 
Ketchum-Wiggins, who lives in southern California near my 
congressional district.
    Similar bullying incidents are happening every day to young 
people across our Nation. Cyberbullying is always mean, ill-
mannered, and cruel, but some cyberbullying is so harmful that 
it rises to the level of criminal behavior.
    My bill, the ``Megan Meier Cyberbullying Prevention Act,'' 
is named to honor a young woman who was a victim of such 
criminal behavior. Three years ago, 13-year-old Megan Meier of 
Missouri hanged herself after being tormented and harassed by 
her 15-year-old MySpace friend ``Josh.'' Josh told her, among 
other things, ``The world would be better off without you.''
    Eventually, Megan's family learned that ``Josh'' was really 
a creation of Lori Drew, the parent of one of her classmates. 
However, local prosecutors in Missouri couldn't bring charges 
against Lori Drew because, at the time, Missouri had no law to 
punish that kind of cruelty. A Federal prosecutor in a similar 
bind got creative and charged Drew with computer fraud. And 
even though a jury convicted her, a judge through out the 
conviction. The result is that Drew, an adult and one who 
should have been setting an example of good behavior, will 
never be punished for her outrageous behavior toward her 13-
year-old victim, Megan.
    These are just a few brief examples of why Congress needs 
to address new crimes like cyberbullying. Words that didn't 
even exist a couple years ago, including ``sexting'' and 
``textual harassment,'' describe the new ways that people use 
technology to hurt, harass, and humiliate others. When these 
behaviors become serious, repeated, and hostile, we can no 
longer ignore them and turn a blind aye.
    While Missouri has since enacted a cyberbullying statute, 
the children of other States are waiting for Congress to act. 
That is why I am grateful that the Committee is considering the 
``Megan Meier Cyberbullying Prevention Act.''
    Before I conclude, I do want to acknowledge how difficult 
it is to craft a prohibition on cyberbullying that is 
consistent with the Constitution. But I believe that, working 
together for the sake of our children, we can and must do so.
    The Supreme Court has already recognized that some 
regulation of speech is consistent with the first amendment. 
For example, the Court has approved restrictions on true 
threats, obscenities, and some commercial speech. But it has 
been more hostile to attempts to limit political speech.
    I don't intend anything in the ``Megan Meier Cyberbullying 
Prevention Act'' to override Supreme Court jurisprudence. 
Instead, I want the law to be able to distinguish between an 
annoying chain mail, a righteously angry political blog post, 
or a miffed text to an ex-boyfriend, all of which should remain 
legal. But serious, repeated, and hostile communications made 
with the intent to harm are different. When the latter rises to 
a criminal level, as it did in the case of Lori Drew, 
prosecutors should have a tool at their disposal to allow them 
to punish the perpetrator.
    I believe that we can protect our right to free speech and 
protect victims of cyberbullying at the same time. And I look 
forward to working with my colleagues on both sides of the 
aisle to do so. I thank you for the opportunity to testify 
today and hope that you will join me in supporting that 
    [The prepared statement of Ms. Sanchez follows:]
         Prepared Statement of the Honorable Linda T. Sanchez, 
       a Representative in Congress from the State of California


    Mr. Scott. Thank you.
    Ms. Wasserman Schultz?


    Ms. Wasserman Schultz. Thank you, Chairman Scott and 
Ranking Member Gohmert and distinguished Members of the 
Committee, for allowing me to testify today beside my friend 
and fellow Committee colleague, Representative Linda Sanchez. 
And I want to acknowledge my colleague, Representative John 
Culberson, who has taken ill and was not able to join us today.
    It is always an honor to appear before this Subcommittee, 
and I am pleased that we continue to make protecting children 
online a high priority.
    You know, Mr. Chairman, as proud as I am to represent south 
Florida in the House of Representatives, the job closest to my 
heart is being a mother to my 10-year-old twins and my 6-year-
old daughter. And, as one of only a handful of mothers with 
young children in Congress--and Representative Sanchez has 
recently joined our ranks, and we welcome her and congratulate 
her on that--I can assure you that we have no higher priority 
than keeping our children safe from harm.
    Now, for me, I approach today's topic as a Web-savvy mom 
with Web-savvy kids. In fact, as of yesterday, literally, my 6-
year-old daughter now has an e-mail address which she uses on 
her iPod Touch--with strong parental control software fully 
engaged, I might add. Clearly, parents and teachers already 
know that our children are growing up in a completely different 
world than we did, as Representative Sanchez acknowledged.
    The Internet is a wonderful tool, but it has also become a 
pathway for risky behavior. The same Internet that helps our 
children create, study, and explore the world also enables 
minors to post nude photos online or text them to friends. The 
same Internet that allows children to organize clubs and 
volunteer for after-school activities also provides a way for 
children to harass their fellow students relentlessly, 
anonymously, publicly, and after the school day has long ended.
    As legislators, we have to get real. We must accept that 
our kids spend more time online than in front of the 
television. We have to own up to the fact that 89 percent of 
teenagers have profiles on social networking sites like MySpace 
and Facebook. We must understand that nearly four in 10 kids 
have used the Internet to make fun of or post lies about their 
fellow students. We must understand that we live in an era when 
four out of five teenagers have cell phones, most of which have 
cameras. And we must know that more than one in five teenagers 
admit to sexting nude photos of themselves to peers.
    These behaviors, often done on impulse or in boredom, have 
devastating real-life consequences. This May, I had the honor 
of meeting Cynthia Logan, a young mother from Ohio. She told me 
her story, and it truly broke my heart.
    Her daughter, Jesse, was only 18 years old when she sent 
nude photos of herself to her boyfriend. After the young couple 
broke up, the ex-boyfriend sent them to other high school girls 
all over the school. They called Jesse names I can't repeat in 
this hearing. They passed around her pictures as casually as 
they would notes in a classroom. And they made Jesse's life a 
living hell. What began as a private communication turned into 
a public humiliation. Jesse became miserable and depressed. She 
eventually took her own life.
    Sadly, her case is not unique. Megan Meier, the young teen 
from Missouri that is the namesake of Congresswoman Sanchez's 
legislation, also committed suicide after being bullied online. 
It is not surprising that researchers at the Yale School of 
Medicine have found significant links between bullying and 
    There are other dire consequences to these behaviors. An 
18-year-old boy in my own home State of Florida was convicted 
on child pornography charges for sexted photos. He must now 
register as a sex offender for the rest of his life.
    So what do we do about it? There is no one answer or one 
silver bullet, but we can either continue to shut our eyes to 
the reality or we can tackle this problem head-on.
    I believe that we must usher in a new era of Internet 
safety education and cybercrime awareness. We must teach 
children how to be good cyber citizens. Unfortunately, most 
parents and most teachers don't feel comfortable teaching kids 
how to be safe online. This means most children receive no 
training whatsoever in the safe, smart, and responsible use of 
the Internet. I, myself, have held three Internet safety town 
halls in my district. But as individuals and parents, we can't 
do this alone. We need a consistent and national approach.
    Last week, with Congressman Culberson, I was proud to 
introduce H.R. 3630, the ``Adolescent Web Awareness Requires 
Education Act,'' or the ``AWARE Act.'' Our bill will establish 
a competitive grant program so that nonprofit Internet safety 
organizations can work together with schools and communities to 
educate students, teachers, and parents about these online 
    Our bill authorizes up to $125 million over 5 years to 
establish age-appropriate, research-based programs that will 
encourage the safe, smart, and responsible use of the Internet 
and teach cybercrime awareness and digital literacy in the new 
media to our children.
    Education is important because it helps teach both parents 
and children how to act in all kinds of real-life situations. 
Education is vital because it can reinforce new norms between 
students. Education gives children lessons, teaches skills, and 
builds strength that can last a lifetime.
    We can teach children to treat their fellow students the 
same way online that they would in person. We can teach them 
not to bully or harass their peers and how to report dangerous 
our threatening activity when they see it. We can teach them 
not to post inappropriate material about themselves or others. 
We can teach them about privacy settings and about the risks of 
talking to strangers or posting personal information online. We 
can teach them that what they put online stays online. And we 
can teach them that the minute they hit that send button, they 
not only lose control over where their photos go next, they can 
also lose control of their future.
    We can and we must teach children how to be safe on the 
Web. Jesse Logan's death was a tragedy, but it also is a 
powerful reminder about the lives that we can save. Knowledge 
truly is power, and with the ``AWARE Act,'' it is my hope that 
we make knowledge our children's first line of defense.
    Thank you.
    [The prepared statement of Ms. Wasserman Schultz follows:]
     Prepared Statement of the Honorable Debbie Wasserman Schultz, 
         a Representative in Congress from the State of Florida


    Mr. Scott. Thank you very much.
    Do you have questions for the witnesses?
    Mr. Gohmert. No.
    Mr. Scott. We want to thank you for your testimony, and we 
are going to go on with the other witnesses. Thank you very 
    If the other witnesses will come forward.
    Our second panel of witnesses consists of five 
distinguished witnesses.
    Our first panelist will be professor Robert O'Neil. In 
1990, he founded the Thomas Jefferson Center for the Protection 
of Free Expression and was director until 2007. Though 
officially a professor emeritus from the University of 
Virginia, he continues to teach a first amendment clinic. He is 
the author of several books, including ``Free Speech in the 
College Community,'' ``The First Amendment and Civil 
Liability,'' and ``Academic Freedom in the Wired World.''
    Our next panelist is Judi Westberg Warren. Since 2004, she 
has served as president of Web Wise Kids, a national nonprofit 
organization that implements educational programs to help our 
youth stay online safely. She serves on numerous committees, 
including the Congressional Internet Caucus Advisory Committee 
and the Internet Safety Advisory Board for the Attorney General 
of Virginia.
    Our next witness is Harvey Silverglate. He is the counsel 
to the Boston law firm of Zalkind, Rodriguez, Lunt & Duncan, 
LLP, specializing in criminal defense, civil liberties and 
academic freedom, and student rights law. He currently serves 
as an adjunct professor with the Cato Institute and is speaking 
on its behalf today.
    Our next panelist is Nancy Willard. She is the director of 
the Center for Safe and Responsible Internet Use and has 
degrees in special education and the law. She is author of two 
books, ``Cyberbullying and Cyberthreats: Responding to the 
Challenge of Online Social Cruelty, Threats, and Distress;'' 
and ``Cyber-Safe Kids, Cyber-Savvy Teens: Helping Young People 
Use the Internet Safety and Responsibly.''
    And our final panelist is John Palfrey, professor of law 
and vice dean for library and information resources at Harvard 
Law School. He is the co-author of ``Born Digital: 
Understanding the First Generation of Digital Natives'' and 
also ``Access Denied: The Practice and Politics of Internet 
Filtering.'' He recently chaired the Internet Safety Technical 
Task Force directed by the Berkman Center for Internet and 
Society at Harvard University.
    Each of the witnesses' written statements will be entered 
into the record in its entirety. And I would ask each of our 
witnesses to summarize your testimony in 5 minutes or less.
    And to help you, there is a timing device on the table. It 
will start off green, will go to yellow when there is 1 minute 
remaining, and will turn red when your 5 minutes have expired.
    Professor O'Neil, it is good to see you again.


    Mr. O'Neil. Thank you, Mr. Chairman and Representative 
Gohmert. I am delighted and honored to have an opportunity to 
come to discuss with you a vital but also an exceedingly 
difficult issue of national policy. This is my 47th year of 
teaching constitutional law, free speech, and press, and this 
is one of the toughest issues I think I have ever encountered.
    Of those 47 years, I spent much of the last 25 teaching at 
the University of Virginia and, most recently, this past 
spring, at the University of Texas. So, from those experiences, 
nearly a half-century, I had hoped to share four or five fairly 
basic points, which are more fully developed in the written 
statement that I had filed.
    First, it seems to me this issue has recently acquired a 
new kind of urgency, in part because of the graphic, sometimes 
cruel, brutal, and devastating experiences that the two earlier 
witnesses described so graphically and vividly. For me, as the 
grandfather of an Internet-savvy young lady who just turned 13, 
it is hard to avoid the potentially personal impact of such 
    It also acquires an urgency because, within the past month, 
the Federal district judge in southern California, by 
dismissing the charges against Lori Drew under the ``Computer 
Fraud and Abuse Act,'' essentially left Federal prosecutors 
with no viable recourse against even the most cruel form, the 
most extreme form of cyberbullying.
    Obviously, as Representative Gohmert pointed out earlier, 
any solution this Subcommittee or the full Committee or the 
Congress may craft must be compatible with the first amendment 
to the Constitution, must recognize the protections of free 
speech and press.
    Obviously, that requires finding some exception to those 
protections, the more urgent in this country because uniquely 
we, in the United States, and our courts presume that speech is 
protected until and unless it is shown to fall within one of 
several rather narrowly defined exceptions. Several exceptions 
have been suggested in this context--incitement, defamation, 
deception, true threats, invasion of privacy, fighting words--
but for one reason or another, none of those exceptions really 
seems to be viable in this context.
    The one that potentially works is the one on which H.R. 
1966 is premised, and that is intentional infliction of 
emotional distress. It is not a perfect fit, but that is a 
well-recognized tort remedy which has never been thought to 
violate or abridge free speech or free press.
    It hasn't traditionally been applied in the criminal 
context, and that is one of the variations that requires 
consideration in this instance. But, for a whole lot of 
reasons, it seems to me that intentional infliction of 
emotional distress is by far the most promising of the various 
and potentially available exceptions to first amendment 
    It seems to me that H.R. 1966 is certainly on the right 
track. It is a very promising approach to this problem. I 
would, however, respectfully suggest consideration of three 
ways in which 1966 might be strengthened: The first would be to 
look at all possible types of intent which ought to be 
potentially punishable. The second would be to require proof 
that a particular person or victim has been targeted or singled 
out for special attention as a critical element of 
    The third is to require some evidence of impact or effect. 
In most cases, this would not be anything nearly as drastic as 
Megan Meier's suicide. But I would suspect that, in a viable 
Federal prosecution, there would be evidence at least of time 
lost from school, of physical or other illness, consequences to 
the family, and so on.
    So I would respectfully urge consideration by the 
Subcommittee of possibly strengthening H.R. 1966 in those three 
    Thank you. I would be happy to answer questions, but I very 
much appreciate this opportunity.
    [The prepared statement of Mr. O'Neil follows:]
                 Prepared Statement of Robert M. O'Neil


    Mr. Scott. Thank you.
    Ms. Warren?

                  WEB WISE KIDS, SANTA ANA, CA

    Ms. Warren. Thank you, Mr. Chairman and Members of the 
Committee, for inviting me to speak on this very important 
issue of children's safety.
    I represent Web Wise Kids, which is a national nonprofit 
organization which has reached over 7 million kids within the 
United States with our programs. We are very thankful that 
Congress is addressing the issue of the growing need for 
Internet safety among our youth.
    Increasing online safety for children requires a 
comprehensive solution involving diverse stakeholders, 
including youth, parents, law enforcement, educators, mental 
health professionals, industry, and community-based 
organizations. Web Wise Kids believes strongly that Internet 
safety education is the most effective way to resolve problems 
and dangers relating to misuse of the Internet.
    In the United States, more than 35 million children in 
kindergarten through grade 12 have Internet access, and, each 
year, children are starting to use the Internet at a younger 
and younger age.
    The Internet is a powerful and growing medium, with more 
than 1 billion Internet users worldwide. The Internet is an 
invaluable tool, critical to America's ability to compete in a 
global economy. At the same time, it also poses great 
challenges to keeping kids safe in a new cyber world.
    This dramatic rise in children's use of Internet has led to 
an increase in risky behaviors, such as cyberstalking and 
cyberbullying and sexting. Research indicates that youth are at 
risk online. For example, 43 percent of teens were victims of 
cyberbullying in 2008, and 33 percent of teenagers have been 
approached online by a stranger.
    Web Wise Kids strongly supports legislation to provide 
funding for Internet safety programs. New investments in our 
educational infrastructure will train and equip teachers and 
law enforcement with the tools they need to teach children to 
use the Internet and other technologies safely.
    Children are integrating technology into their lives at 
lightning speed. While this is a positive development, State 
and Federal funding is inadequate to meet that growing need. 
Students receive little education on safe and ethical Internet 
use. The majority of responsibility for teaching Internet 
safety falls on educators, who are often unprepared to provide 
this type of education.
    Federal law mandates that elementary and secondary schools 
receiving E-rate funding must have an Internet safety education 
program. However, no funding has been provided to meet this 
Federal requirement.
    Clearly, parents play a significant role. Providing 
targeted resources to the school system would also effectively 
help us to reach parents.
    Web Wise Kids strongly supports passage of the ``AWARE 
Act'' sponsored by Congresswoman Wasserman Schultz and 
Congressman Culberson, as well as its Senate counterpart 
sponsored by Senator Menendez. This legislation is carefully 
crafted and will provide much-needed funding to support 
collaborative, comprehensive, and diversified approaches to 
online safety education in our schools.
    The bill's centerpiece is a competitive Internet safety 
education grant program for State and local education agencies 
and nonprofit organizations to promote the safe use of digital 
technologies. The ``AWARE Act'' identifies clear uses of the 
funding and includes safeguards to assure an effective research 
and evaluation component of the program. This legislation will 
go a long way to protect children and families online.
    While administered by the Department of Justice, Web Wise 
Kids strongly urges the concurrence of the Departments of 
Education and Health and Human Services in implementing this 
legislation. Interagency cooperation will allow for sharing 
insights and information.
    We applaud Congresswoman Sanchez for raising awareness of 
cyberbullying as a significant problem for children in the U.S. 
Cyberbullying, like offline bullying, can cause substantial 
harm to our youth, including serious and long-term emotional 
and behavioral problems. For the victim of cyberbullying, there 
can be literally no place to run. Prevention of cyberbullying 
through educating kids on how to respond to online harassment 
is paramount, in our view.
    Imposing punitive sanctions requires careful examination. 
Targeted criminal penalties against severe forms of harassment 
might be appropriate if the legislation is able to withstand 
constitutional scrutiny. The most effective impact Congress can 
have is providing greater resources to promote Internet safety 
education in our schools and prevent harm from happening in the 
first place.
    Passage of this legislation, sponsored by Congresswoman 
Wasserman Schultz and Congressman Culberson, would be a first 
major step forward. Education builds lessons for a lifetime. 
With this legislation, we have an opportunity to enhance the 
skills of educators and provide students with hands-on 
opportunities to use technology safely and ethically for 
generations to come.
    Thank you.
    [The prepared statement of Ms. Warren follows:]
               Prepared Statement of Judi Westberg Warren


    Mr. Scott. Thank you.
    Mr. Silverglate?


    Mr. Silverglate. Thank you for the opportunity to testify 
this afternoon.
    My main occupation is that of a criminal defense and civil 
liberties trial lawyer, as well as an author. So I have done 
it, and I have written about it. And I have a certain 
perspective that I have gained from the enforcement of statutes 
like this out in the real world.
    In 1998, I published the book, ``The Shadow University: The 
Betrayal of Liberty on American Campuses.'' The book was 
largely about the enforcement of speech and harassment codes in 
American campuses of higher education.
    In 2009, earlier this year, I published another book, 
called ``Three Felonies a Day: How the Feds Target the 
Innocent.'' I am leaving a copy of each book here when I leave. 
You can use it as you wish, or not.
    But the impetus to publish these two books grew out of my 
observations in some of the cases that I tried. There are two 
problems that I noticed, both of which are present in this 
bill, the ``Cyberbullying Prevention Act.''
    First of all, there is a problem with the vagueness in the 
definition of the criminal conduct. And vagueness, 
incidentally, is distinct from overcriminalization. I have 
problems with overcriminalizing too many things, but at least 
if the statute is clear, you know where the lines are drawn. 
This statute has a significant vagueness problem, and that 
vagueness problem is exacerbated by the fact that it impinges 
on protected speech.
    I beg to differ with Professor O'Neil, but if one looks at 
the Supreme Court's decision in Hustler Magazine v. Falwell, 
that was a case where the court, 8 to 0, unanimously overturned 
a verdict for Reverend Falwell against Hustler Magazine for the 
intentional infliction of emotional distress. The 
constitutional issue here is hardly clear. You don't usually 
get eight-to-nothing opinions of the Supreme Court, where there 
is no constitutional problem.
    But my experience with harassment codes on college campuses 
tells me that this statute is going to cause a lot of problems, 
not only legal, but also it is going to prevent a lot of speech 
which is and should be constitutionally protected.
    I actually, after publishing ``The Shadow University,'' I 
had to start a nonprofit foundation called the Foundation for 
Individual Rights in Education in order to help the hundreds 
and hundreds--in fact, it is more than hundreds, it is 
thousands--of students who were, themselves, harassed by their 
colleges because they deigned to say things which were deemed 
by somebody else to be harassing or exceedingly unpleasant.
    Now, in ``Three Felonies a Day,'' I have catalogued scores 
of cases in the criminal justice arena where this same problem 
arises, people who are convicted for doing things that a lot of 
us would look at and say, well, wait a minute, how could that 
be a crime? And the cyberbullying bill uses the same kinds of 
terms that have caused such problems on campuses: 
``intimidate,'' ``harass,'' ``cause substantial emotional 
distress.'' These are terms that ordinary people, intelligent 
people, would differ as to what falls within one or another 
    Essentially, this bill would criminalize communications 
that are very unpleasant, very annoying to the recipients. It 
will doubtless result in the charging of a substantial number 
of people whose activities are protected or should be by the 
first amendment. And, by its mere existence on the statute 
books, it will deter a vast number of people from exercising 
speech in a vast number of circumstances where we would all 
agree it should be protected.
    I am not making a case here for harassment. I don't 
consider it our friend. True harassment is already covered more 
than adequately by State and even by Federal law via statutes 
outlawing and punishing true threats and other extreme conduct.
    All this bill would do, in my view, is criminalize existing 
tort law and federalize a perfectly adequate array of State 
statutes that criminalize true threats that are well understood 
within the common law tradition. So this bill would really, I 
fear, confuse citizens while deterring a vast array of 
constitutionally protected speech.
    Thank you.
    [The prepared statement of Mr. Silverglate follows:]
              Prepared Statement of Harvey A. Silverglate

                               APPENDIX 1

                               APPENDIX 2

                               APPENDIX 3


    Mr. Scott. Thank you.
    Ms. Willard?


    Ms. Willard. Thank you very much.
    I have prepared and provided you a joint statement of 
opposition to the Megan Meier cyberbullying bill signed by 
every author of a book on cyberbullying in the United States, 
as well as many other risk-prevention professionals. This bill 
will not effectively address cyberbullying, for many of the 
reasons which you already outlined.Information 
included as attachment with prepared statement deg.
    [The information referred to follows:]

    Ms. Willard. We also acknowledge the good intentions of Ms. 
Wasserman Schultz in addressing this through education, but we 
have significant concerns about this bill as currently drafted. 
So I would like to go into those.
    First of all, we have to understand that there is a lot of 
mistaken understanding in this area. In fact, the Lori Drew-
Megan Meier case was inaccurately reported. Lori did not create 
that profile, she did not engage in or direct the 
communications, and she wasn't even home when the harmful 
communications were sent. My information comes from the 
prosecutor in the community who presented at a MAG conference 
that I presented at.
    One in five teens have not been sexually solicited by adult 
sexual predators. That was primarily teen-on-teen sexual 
harassment, which they handled effectively. The incidence of 
online predation in 2006, from Crimes Against Children Research 
Center, was around 600 incidents, about 1 percent of all 
arrests for sexual abuse of minors.
    We have a significant amount of techno panic going on here. 
And until we get to an accurate understanding of the actual 
risks, we are not going to proceed effectively. So the actual 
risks include electronic aggression. I was going to say more, 
but, Mr. Scott and Mr. Gohmert, you have a great understanding 
of these issues.
    Risky sexual personal relationship issues. There is sexual 
solicitation going on. It is primarily among teens. We have 
unsafe cyber-dating. Abusive partners are using this technology 
for control. And we have the sexting issue.
    We also have issues that haven't even percolated up in our 
understanding. Unsafe communities, where kids are encouraging 
self-harm, anorexia, self-cutting; and also dangerous groups, 
online gangs and hate groups. And, Mr. Scott, we could do some 
amendments to your really excellent ``PROMISE Act'' to address 
some of these issues.
    The research has indicated that the young people who are at 
greater risk in the offline world are at greater risk online. 
These issues involved incidents between known peers. The 
majority of young people are actually making good choices 
online. And teens whose parents are actively and positively 
engaged are engaging in less-risk behavior.
    We have to stop the negativity that we have, the fear, the 
kind of ``reefer madness,'' ``just say no'' approach to these 
issues. To address these, we have a three-part program that we 
need to be doing.
    We need to make sure that we have Web 2.0 technologies in 
schools, because we can't teach kids how to swim unless we get 
the swimming pools in school, okay? One of the major barriers 
to doing that is the fear that is generated about youth risk 
online that is grounded in an inaccurate understanding of these 
    In risk prevention, we look at things from a universal 
approach and a targeted approach. We need universal digital 
safety and media literacy in schools. Some of the challenges 
include: A lot of the curriculum that out there is this 
``reefer madness,'' ``just say no'' approach. And there is a 
lack of accurate understanding among teachers.
    But this new requirement to the ``Children's Internet 
Protection Act'' is causing a shift. Schools are mobilizing to 
address these issues, and there is new curriculum coming out 
that is really excellent and actually very low-cost to address 
these issues. We could reinforce this in the reauthorization of 
the ``Elementary and Secondary Education Act,'' but, Mr. 
Gohmert, I do not believe there is a significant need for the 
funding of the creation of curriculum in this area.
    The next issue is targeted youth risk prevention and 
intervention. We have to address these more significant risks. 
One of the biggest challenges is that you eliminated the block 
grants for State and local Safe Schools funding at exactly the 
time that we need to mobilize these people to address these new 
risks. We need to ensure that our schools are addressing youth 
risk online in the context of their Safe School planning.
    We could have a discretionary grant program to target funds 
to risk prevention and intervention programs, much like what 
you have tried to do. But we absolutely have to have a triad of 
leadership in this area, not the Department of Justice in 
consultation with the Department of Mental Health and the 
Department of Education; a joint program similar to the Safe 
Schools and Healthy Students Program, where all three agencies 
are working in joint collaboration.
    And we also need to recognize that there will never be 
evidence-based best practices in this area. It takes about a 
decade to get an evidence-based best practice. The research is 
just emerging. These technologies are changing rapidly.
    There are provisions within the Safe School program to get 
a waiver from the principles of effectiveness if you establish 
an appropriate needs assessment, a plan that has a reasonable 
likelihood of success, and effective evaluation. So we need to 
tie this program to those existing requirements to ensure 
continuous improvement.
    Thank you very much. And I have offered my assistance to 
your staff to seek to improve this legislation. Thank you.
    [The prepared statement of Ms. Willard follows:]
                  Prepared Statement of Nancy Willard



    Mr. Scott. Thank you.
    Professor Palfrey?


    Mr. Palfrey. Mr. Chairman, thank you so very much for the 
honor of the invitation to be here. Ranking Member Gohmert and 
Members of the Subcommittee, thank you for focusing attention 
on this important issue. I want to speak first to the research 
that has been done in this area and then speak to a few of the 
solutions discussed today.
    I think that, Mr. Chairman, you described the state of the 
research extremely well. I have spent the last few years in the 
field doing research myself, talking to kids, parents, 
teachers, social workers, and others, but also, as the Chair of 
the Internet Safety Technical Task Force, which was 
commissioned by the Attorneys General, reviewed much of the 
research done by others in this field.
    I think that the state of affairs is that bullying online 
is on the rise. No matter how you define it, no serious 
observer disputes that fact. I think that one of the key 
aspects of this is that what we are seeing is that public 
spaces have moved from playgrounds to online spaces, online 
spaces often owned by private companies and online spaces that 
are often highly distributed.
    So, as we think about this, I think we need to think about, 
how do we want to govern behavior in these online spaces, and 
noting that kids don't distinguish between their online lives 
and offline lives; it is mostly just life. So it urged us, in 
thinking about this, to focus less on the cyber part of 
cyberbullying and think of it as bullying, which is, I think, 
how most kids do.
    I think part of the problem, too, is this gulf that many 
have acknowledged between parents and teachers, social workers, 
and others who don't feel that they have the tools to help, and 
the kids themselves who are engaging in risky behaviors in 
these online spaces, just as they do in the offline. And I 
think that any solution that we look at needs to address this 
problem of the gulf to put the right tools in the hands of 
parents, teachers, social workers, pediatricians, and others 
who are touching our kids' lives.
    Turning to potential solutions, I think the Committee has 
done a great job at identifying potentials in this area. I 
think no one disputes the notion that this will require a 
series of different solutions, a series of different solutions 
with education at the core. I think it also goes without saying 
that parents have the greatest obligation here, and kids 
themselves. This is something that is most sensibly dealt with 
in the home.
    But I think we should also look to opportunities like using 
technologies as part of the solution and working with companies 
who are, in a way, the overseers of these playgrounds in many 
respects, and, of course, looking to the law.
    I would share the view that criminalization is not the 
answer, with due respect to Ms. Sanchez. I won't go into that 
since others have touched on the constitutionality, but also 
the effectiveness of that. I think it is crucial that law 
enforcement play a role in this space, but it needs to be, I 
think, a backstop.
    I think the education support described in the ``AWARE 
Act'' is precisely the right place to start from here. I think 
that, in reading the ``AWARE Act,'' one thing it does very well 
is to track the research in the field. It talks about public 
and private-type partnerships. It looks at at-risk kids, where 
we know many of the problems are.
    And I think it has been drafted in such a way as to support 
those kinds of activities that need supporting. And, as someone 
working in this field, I am keenly aware of the fact that there 
is not sufficient support for exactly this kind of work and 
that it is the most promising, even though even that will not 
get the entire job done.
    I would point to one other potential approach that, Mr. 
Chairman, you mentioned, about revisiting section 230 of the 
``Communications Decency Act.'' I say this with some 
trepidation. There are many I respect who think this is a 
terrible idea, what I am about to say, and these are smart 
    There is a statute on the books that exempts from liability 
online intermediaries, and that has been a very important part, 
I think, over the last decade or so of Federal legislation in 
this area. It has allowed for a great deal of innovation and so 
    But I do think that there are instances where this immunity 
is broad enough that bad actors are able to hide behind it in a 
way that disincentivizes the ``good samaritan'' behavior that 
you in the Congress thought about when you were passing this 
    Again, I would urge great caution in tinkering with this 
statute. Again, the costs, the demerits of this are with 
respect to innovation, and they might be very great in some 
cases. But I think we need to make sure that the law overall is 
incentivizing the kind of behaviors that we see in many good 
companies, Facebook and other social networks, that really 
exemplify good behavior here, while disallowing the bad actors 
from hiding behind a shield that we didn't mean to give them. 
So I would urge a look in that direction.
    But, again, no one approach is going to solve the problem. 
I think that the community-based approaches that have been 
discussed today are precisely the right angle. And, again, I 
commend the Committee for focusing attention on this important 
    Thank you.
    [The prepared statement of Mr. Palfrey follows:]
                   Prepared Statement of John Palfrey

    Mr. Scott. Thank you, Professor Palfrey.
    We will now recognize ourselves under the 5-minute rule to 
ask questions.
    I will begin with Professor O'Neil. You used an interesting 
term involving the Constitution, ``promising.'' That didn't 
quite get us there. I assume there would be no problems if the 
communications involved threats.
    Mr. O'Neil. That certainly is a recognized exception. The 
Supreme Court has never really defined ``true threat.'' They 
have used that phrase and implied that true threats are not 
constitutionally protected, like fraud and inducement and 
accessory before the fact and a whole other range of uses of 
language that are not protected speech.
    My assumption is that, and I think that both of you pointed 
to this possibility, some elements in a cyberbullying 
communication or a series of cyberbullying messages undoubtedly 
would be threats, but I would think the greater part of the 
kind of cyberbullying message that creates the greatest 
concern, indeed anguish, among those who seek to redress are 
not really threats. They aren't incitement, they aren't 
fighting words, they aren't libel. They don't fit into any of 
these categories.
    Mr. Scott. You suggested that intentional affliction of 
emotional distress is normally a civil action, not criminal.
    Mr. O'Neil. It is.
    Mr. Scott. Can you convert it into a crime?
    Mr. O'Neil. It has not been done, to my knowledge.
    Mr. Scott. Is it protected from criminal, but not protected 
from civil?
    Mr. O'Neil. It is so clearly--the classic case being one 
person as a cruel joke or a hoax sends an e-mail message to 
somebody else saying, so sorry to hear of your brother's death 
last week, when, in fact, the brother is alive and well. It has 
been widely assumed--I have never seen a first amendment 
jurisprudence or scholarship to the contrary--that in a classic 
situation of that kind, a civil recovery would be feasible. The 
Falwell-Hustler case to which Mr. Silverglate referred is in 
some ways troublesome, but the Supreme Court's concern was that 
Reverend Falwell was a very prominent public figure, and as a 
public figure plaintiff, by analogy to the New York Times 
privilege, he was denied recovery.
    Mr. Scott. We don't have that public figure exception in 
criminal law, do we?
    Mr. O'Neil. Probably not, although the context of which we 
are talking, cyberbullying, almost inevitably involves people 
who are not public figures. And until it becomes a media issue, 
for example, or leads to litigation, they are neither public 
figures, nor are they engaged in a matter of public concerns. 
So I am assuming we passed that barrier.
    But as I noted in my prepared testimony, the absence really 
of any either supportive or preclusive reasoning with respect 
to a criminal application of intentional infliction of 
emotional distress is an issue. I just am not aware of any 
jurisprudence or scholarship that argues strongly either way. 
So I guess I would say it is worth a try.
    Mr. Scott. Well, we have dealt with this with telephones. 
You are familiar with, in Virginia, 18.2429, causing telephone 
to ring with intent to annoy----
    Mr. O'Neil. Yes.
    Mr. Scott [continuing]. Where any person with or without 
the intent to communicate, but with intent to annoy, causes a 
telephone to ring is guilty of a misdemeanor crime.
    Mr. O'Neil. I think the intent to annoy may be troublesome 
for different reasons, and that is one of the reasons I 
suggested in 1966 that further attention to sharpening the 
intent elements would be a starting point, as well as 
    Mr. Scott. Well, we differentiate with telephone and mail. 
You can prohibit making somebody's telephone--you can prohibit 
ringing telephone communications that you probably couldn't 
prohibit mailing something because of the intrusion. Do we have 
the same problem with the Internet?
    Mr. O'Neil. We don't really know. When the Supreme Court, 
now 12 years ago, granted full first amendment protection to 
Internet speech, something they had not in decades done with 
respect to any other new medium, they left a lot of issues 
unanswered. And there are some downside implications, 
cyberbullying perhaps the most dramatic of which, we are only 
becoming aware, and on which the Supreme Court really has had 
no occasion to rule. So, again, I would say there have got to 
be some dark shadows in this generally promising penumbra 
called the Internet, and cyberbullying may be the darkest of 
    Mr. Scott. I have other questions, but I will defer at this 
time to the gentleman from Texas Mr. Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman.
    And thank you for all of your testimony. Very thoughtful. 
And it does raise interesting issues.
    Professor O'Neil, when you talk about intentional 
infliction of emotional distress, there are some States like 
Texas and in the legal literature of most places is an ongoing 
debate over whether or not that is sufficient to create a cause 
of action in tort law without some type of physical 
manifestation of the harm. So this would be taking that a 
couple of lightyears further down the road. We are going to 
jump past the physical manifestation of harm and go straight to 
making it a crime, which you say, as I understand you, it may 
fit here, but this is a troublesome horse to ride in for this.
    Mr. O'Neil. It certainly does raise questions. But your 
reference to the requirement of some discernible harm doesn't 
have to be suicide, doesn't have to be injury or heart attack. 
But it seems to me a conscientious prosecutor would never 
charge somebody under a cyberbullying statute without some 
fairly graphic evidence of impact or effect. I don't think that 
undermines the case; I just don't think it will be worth--would 
make sense to bring such a case unless there were evidence of 
effect or impact.
    Mr. Gohmert. Or unless somebody wanted to harass the 
harasser. And there have been prosecutors that went out of 
their way to seek indictments just to harass, as you, I am 
sure, know the old saying, a good prosecutor could indict a ham 
    But without the public figure exception, then it does get 
interesting for us, because all Members of Congress are accused 
of all kinds of things. I get an e-mail my dad forwards 
regularly saying: If you guys would just get on Social 
Security, then it would solve the Social Security problem. They 
don't know we have been on Social Security for a number of 
years. And Ron Paul told me back in July that some liberal blog 
just put up that there was only one Member of Congress crazier 
than Ron Paul, and it was Louie Gohmert. So I don't know if 
that was meant to compliment or harass, but----
    Mr. O'Neil. Truth is a defense.
    Mr. Gohmert. Yeah, there is that.
    And then you have got the situation where most everything 
that is on television or on video ends up on the Internet. And 
Sarah Palin would have all kinds of cause of actions, but do 
you really want to arrest David Letterman for a bad joke?
    It creates troublesome issues here of what is not intended 
to harm, but intended to be humorous. And then practical jokes, 
those abound on the Internet. So it is a troublesome legal 
    Now, I am intrigued, Ms. Willard, by your comments about 
maybe be more assistance through the block grants for the Safe 
Schools. Do you want to comment on that?
    Ms. Willard. Yes. President Obama's budget--I am not sure 
everything that is going on there, but President Obama's budget 
zeroed out the funding for the States and local block grants 
for Safe Schools. They are redoing that program. My concern is 
that we have we have to move forward to address these issues of 
threats on line. The impact of these harmful actions is coming 
to school, and the programs that--the personnel, the expertise 
that is in place at the State and local level to address these 
issues are the Safe School folks.
    Mr. Gohmert. What about the adults that have similar 
    Ms. Willard. Well, my focus is on teens. And maybe if we 
can get it during teens.
    Mr. Gohmert. They can teach their parents.
    Ms. Willard. Yeah. But so within schools, we really need to 
have these Safe School programs, at least the State and local 
infrastructure funded, in order to be able to move forward to 
address these youth risk on-line issues. And then in the 
reauthorization of the Elementary and Secondary Education Act, 
we need to make sure that the Safe School plans are also 
addressing youth risk on line.
    Mr. Gohmert. Well, I see my time is about expired, but I 
really appreciate what you all bring to the debate, and it does 
pose some really interesting issues. But obviously there is a 
problem, as there always has been. And as one who was regularly 
beat up because I was small, but I wouldn't take stuff from the 
bigger guys, I am sensitive to bullying of any kind, and I 
don't want to overreact.
    Ms. Willard. I went through junior high as Weirdo Willard, 
so we share that.
    Mr. Gohmert. Well, actually junior high is when I came out 
of my shell and started being a comedian back in those days. 
Not so funny anymore though.
    But thank you, Mr. Chairman. I yield back.
    Mr. Scott. Thank you.
    The gentleman from California.
    Mr. Lungren. Thank you, Mr. Chairman.
    Mr. Scott. Thank you.
    The gentlelady from Florida has just stepped back in. Thank 
you for deferring. The gentlelady from Florida.
    Ms. Wasserman Schultz. Thank you, Mr. Chairman. I had to 
take a call from our caucus Chairman. I apologize for stepping 
out a minute.
    Ms. Westberg Warren, I, first of all, want to congratulate 
Web Wise Kids on all of the good work that your organization 
does, and I appreciate your assistance with the Internet safety 
education town halls that we have done in my congressional 
district. I can tell you that the way that your presenters 
interact with kids of all ages in age-appropriate ways, and the 
way the breakouts work separating parents and children is 
really a breakthrough for them, and it does lead to safer 
Internet behavior.
    What I wanted to ask you is my good friend from Texas who 
needs truth as a defense made a reference to not thinking that 
we need a competitive grant program for Internet safety 
education, and this is just something that can be left up to 
parents and schoolteachers, and your colleague who is 
testifying with you today seems to imply that there is enough 
curricula out there, and that it isn't necessary to create 
anything else, and that everything is just fine.
    So can you address those two comments, which I don't agree 
with, and I would imagine you don't either.
    Ms. Warren. Thank you for asking the question.
    Yes, I absolutely do not agree with that. First of all, 
children really are our priority. They are our most valuable 
resource in this country, and we not only want to safeguard 
them on the Internet, but we want them to enjoy the Internet 
and thrive on it; and that, being able to thrive on it, is 
threatened if they are having serious consequences to their 
interaction on line.
    The second thing is that there virtually is no funding out 
there. As an organization that has reached 7 million kids over 
the last several years, we are constantly looking for funding. 
Our programs cost a lot of money to produce because we are 
looking for effective ways to reach kids. One of the ways that 
we used to reach kids are using their own medium, computer 
games, and they are very costly to produce. So we are 
definitely as a nonprofit----
    Ms. Wasserman Schultz. But if you can address, why can't 
parents do it on their own? Why is it something that we need to 
be teaching in the schools? Why do we need to be creating 
Internet safety education programs to give tools to teachers 
and to parents to help them understand how they can reach their 
    Ms. Warren. Because there is no current way that teachers 
are educated on how to implement Internet safety.
    Ms. Wasserman Schultz. So there is no comprehensive way?
    Ms. Warren. There is no comprehensive way.
    Ms. Wasserman Schultz. There is no continuing education 
programs. There is no consistent, comprehensive national 
approach to the curricula?
    Ms. Warren. No. But is a mandate. The E-Rate mandates that 
they have safety programs, and yet there is no funding for it. 
So parents are also critically important to this, but are 
oftentimes catching up to their children in their knowledge of 
technology. So empowering parents to be able to talk to their 
kids about Internet safety is critical, too.
    Ms. Wasserman Schultz. Thank you.
    Ms. Willard, I have to tell you, I find it offensive that 
you would suggest that you would split hairs over whether Lori 
Drew was or was not home, was or was not involved in--I mean, 
she was convicted of a crime. It was later overturned, but she 
was--there was enough evidence for a jury and a judge to 
determine that she was culpable and significantly involved in 
events that led to the suicide of a young girl. And as mother 
of young girls, I find it offensive that you would suggest that 
that should just be cast aside and that it was unimportant.
    It is also offensive to me for you to suggest that there is 
only 600 cyberbullying or--you made a reference to there being 
600 instances of a particular type of bullying.
    Ms. Willard. That was arrests for on-line sexual predation.
    Ms. Wasserman Schultz. All the worse then, because if it is 
your child that is the victim of that predation, it doesn't 
matter if it is 600, 6, or 1. If it is your child, it matters a 
whole lot. So I wouldn't--I really think it is offensive that 
you would trivialize the amount of--assuming that your numbers 
are even correct.
    But let me get to your comments on my legislation. In your 
submitted testimony, you labeled it entirely unacceptable, and 
that is pretty strong language. Let me just be clear. I don't 
want to have an ineffective safety net program, and under my 
bill these are concepts that would be taught by Internet safety 
nonprofits, not police officers. You do understand that, right? 
You understand that this is information that would be imparted 
by Internet safety organizations. Okay. And one of the reasons 
that you are opposed to it is because you have--you oppose the 
funding from the Department of Justice.
    Ms. Willard. No.
    Ms. Wasserman Schultz. Correct?
    Ms. Willard. No. This needs to be funded and controlled 
jointly by the Department of Mental Health, by the Department 
of Education.
    Ms. Wasserman Schultz. But you don't want the grant program 
to be through the Department of Justice, correct?
    Ms. Willard. It needs to be funded through all three.
    Ms. Wasserman Schultz. And, again, you think that these are 
concepts that would be taught by police officers? You do 
    Ms. Willard. No. I understand that the intention of the 
bill--the concern I have is----
    Ms. Wasserman Schultz. No. I heard your concern in your 
testimony. But this is not a view that you have always held, 
    Ms. Willard. I have always had concerns with the funding 
through the Department of Justice.
    Ms. Wasserman Schultz. Well, in fact, you supported.
    Ms. Willard. And with the focus on----
    Ms. Wasserman Schultz. Well, in fact, you supported--on 
March 21, 2008, you sent out an action alert to your supporters 
when Senator Coburn put a hold on the very same bill that 
Senator Menendez is sponsoring this year, correct?
    Ms. Willard. Yes.
    Ms. Wasserman Schultz. And in that e-mail, you begged for 
pressure from the field to be placed on Senator Coburn to 
release this hold. This is money that can come through the 
State and local education organizations as well as Internet 
safety organizations to support education. Those are your 
words, yes?
    Ms. Willard. Uh-huh.
    Ms. Wasserman Schultz. And you are aware the bill you 
rallied for was funded through the Department of Justice, Yes?
    Ms. Willard. Yes.
    Ms. Wasserman Schultz. Okay. Now, that was 2008. But, Ms. 
Willard, you supported the Menendez legislation when he and I 
unveiled it at a Senate press conference this May, didn't you?
    Ms. Willard. Yes.
    Ms. Wasserman Schultz. Okay. You also forwarded Senator 
Menendez's office a press release that you sent to the Ed Tech 
Listserv, which again you stated you were exceptionally 
delighted with the language of the bill. Your words, right?
    Ms. Willard. It was a significant improvement over the----
    Ms. Wasserman Schultz. But the words you used was 
``exceptionally delighted.''
    Ms. Willard. Yes.
    Ms. Wasserman Schultz. You don't seem exceptionally 
delighted today. And in that e-mail, you said we were headed in 
the right direction, and you recommended your followers contact 
their Representatives and Senators to support this legislation, 
    Ms. Willard. Uh-huh.
    Ms. Wasserman Schultz. You also e-mailed reporters from the 
Associated Press and the New York Times asking them to write 
favorable stories about that legislation, our legislation, 
    Ms. Willard. Correct.
    Ms. Wasserman Schultz. And that Senator Menendez and I were 
to be congratulated on this very positive step forward.
    Ms. Willard. Yes.
    Ms. Wasserman Schultz. So at the very least, you would 
agree that you have been very inconsistent on this issue.
    Ms. Willard. Correct.
    Ms. Wasserman Schultz. Okay. Well, it is hard for us to 
take your testimony seriously and treat you as an expert when 
you have been all over the board on the same bill with the same 
    Ms. Willard. This bill has been amended. The Menendez bill 
did not focus exclusively on Internet crime. This bill has now 
admitted an involvement with the Department of Education and 
the Department of Mental Health.
    Ms. Wasserman Schultz. The Menendez bill has not been 
amended. It is the same language.
    Ms. Willard. Your bill is focusing solely on Internet 
    Ms. Wasserman Schultz. No, it is not. That is absolutely 
not the case.
    Ms. Willard. We need to address----
    Ms. Wasserman Schultz. Have you read my bill?
    Ms. Willard. Yes. We need to address----
    Ms. Wasserman Schultz. You have read the bill that is 
before this Committee?
    Ms. Willard. Yes. We need to address these issues in a 
collaborative fashion, and it needs to involve the Department 
of Mental Health and the Department of Education.
    Ms. Wasserman Schultz. Well, this bill focuses on Internet 
safety education, not Internet crime. So I think you should 
reread the bill so that you can understand its focus better. 
And I would be more than happy to sit down with you and work 
with you to address some of your concerns. But I think we both 
have to be on the same page first before we haul off and 
criticize legislation that, A, we supported before and, B, we 
don't seem to understand today.
    Thank you. I yield back the balance of my time.
    Mr. Scott. Thank you.
    And we had a couple of other questions. One, it seems to me 
that if we are going to reduce cyberbullying, it is a lot less 
complex dealing with the education program, as the gentlelady 
from Florida has offered, because you don't get into the 
constitutional quagmire.
    Mr. Silverglate, are there constitutional problems in 
reducing cyberbullying with what are essentially education 
    Mr. Silverglate. No. I don't see any constitutional 
problems with that. I didn't even mention it in my testimony. 
That is just a question of whether you are likely to get your 
money's worth, and that is a judgment that I really don't have 
the experience to make.
    Mr. Scott. Now, about every night you have cable news 
commentators insulting each other with the intent to harass or 
cause substantial emotional distress to each other. If they did 
that over the Internet, if that was streamed over the Internet, 
would that be a crime under H.R. 1966?
    Mr. Silverglate. Well, I do think that there are unforeseen 
dangers in this kind of legislation using terms which 
historically have given us a lot of difficulty in definition.
    The thing about State common law jurisprudence is that it 
has been around a long time. Definitions have been honed over 
the centuries, and at various States we have a pretty good idea 
what we mean by ``harassment.'' But the Federal--in Federal 
law, I think it is really an invitation to constitutional 
mischief. And since State law, it seems to me, does deal 
adequately with the problem of harassment, I don't know why we 
would be wanting to get into a whole new jurisprudential arena.
    I think that the transfer, the movement of the harassment 
concept front the civil tort arena to the Federal criminal 
arena, it is just an invitation into what I call constitutional 
mischief, and a lot of people are going to end up convicted of 
crimes that I think most people in this room would agree should 
not be crimes. So it seems to me very problematic and no real 
    Mr. Scott. Now, is there a difference between e-mailing 
somebody directly and posting something somewhere on the 
    Mr. Silverglate. One of the things that concerns me is that 
when Federal law, Federal legislation begins to focus on things 
like harassment or threats, it mostly focuses on the medium 
rather than on the actual act. So I think we are more afraid, 
if I can use that term ``more afraid,'' of communications that 
go over channels that we are less familiar with, that society 
has less experience with. I think there is still a certain 
amount of cyber fear that goes into legislation such as is 
being proposed, and I think we should try to not focus so much 
on the medium and to focus instead on the substance of the 
    You know, we had this idea that children are sitting in 
front of a screen, and Lord knows what they are saying, and 
Lord knows what they are reading and what they are doing. There 
is a certain amount of fear factor in that. If we try to factor 
that out, I think we will get back to the notion that State law 
really does handle this pretty well. It should not be a subject 
of Federal criminal interest.
    Mr. Scott. When does posting things on the Internet become 
so harassing that it becomes a crime? Professor Palfrey, do you 
have a comment on constitutionality of posting things on the 
Internet that may--if somebody goes and looks at it, might be 
insulted and, because of youth, traumatized?
    Mr. Palfrey. I certainly share the view that this is a 
horrible thing, and we should apply many approaches to address 
it. But I share Mr. Silverglate's view on the constitutionality 
    Mr. Scott. Mr. O'Neil, do you have any other comments on 
    Mr. O'Neil. These cautions, I think, are very well taken. 
And the need for sharper definitions seems to me part of the 
next step in the maturation or development of 1966.
    Mr. Scott. Would there a difference between posting 
something on the Internet?
    Mr. O'Neil. Yes. And that is why I specifically urge that 
one of the requirements of any such--one of the elements of any 
such offense should be evidence that a particular person or 
victim was targeted.
    Mr. Scott. But you can have somebody's name posted.
    Mr. O'Neil. I don't think that is enough. It really has to 
be person-to-person evidence not only of the kind of intent 
that is spelled out in 1966, but a following paragraph which 
describes the process for identifying targeting of a particular 
person and then----
    Mr. Scott. If you posted very insulting information on the 
Internet, and even if it is true, it can be traumatizing, 
invasion of privacy. How bad, how--where is the line between 
teasing and criminal?
    Mr. O'Neil. Nothing is said here about truth or falsehood, 
but I would assume that only harassing statements which were 
false and known to be false would satisfy the intent 
requirement of the first paragraph. And if it is simply 
teasing, or if it is true but being misused, if it is, let us 
say, an invasion of privacy, I don't think you ought to get 
beyond the first paragraph even to the consideration of 
targeting and impact or effect in the second----
    Mr. Scott. Well, some things could be--you could be 
racially insensitive, appearance insensitive, and tease someone 
into the point of trauma.
    Mr. O'Neil. I don't think that is nearly enough. And such a 
statute, it seems to me, ought to be structured so that 
statements of that kind could not be caught. I think Mr. 
Silverglate issues a very strong warning, which I fully share, 
that a criminal law of this kind could be abused, it could be 
misused. It could pick up all sorts of just unpleasant adverse 
insults and so on. It has got to be written in such a way that 
that can't happen.
    Mr. Scott. Ms. Warren, can truthful insults get to the 
point where they would be traumatizing?
    Ms. Warren. I believe so, yes, and especially if two 
teenagers. You know, you have to understand that as we are 
talking about teenagers, there are a lot of things still 
developing in their minds and in their hearts, and they are 
especially vulnerable during that time. Some of the things that 
happened, as we have heard today, can affect them for their 
entire lifetime.
    Mr. Scott. Thank you.
    Mr. Gohmert.
    Mr. Gohmert. Just briefly follow up on a couple of things. 
To follow up on that, one of the comments that has been--one of 
the things that has been discussed is the conveyance of naked 
pictures and then those being broadcast throughout the 
Internet. They are true pictures, they are accurate pictures, 
and yet the purpose was clearly to harass, intimidate, and 
belittle, hurt the individual who was in the pictures. So I get 
the impression that those--even though they are true and 
accurate, that that is not something that is going to be 
excluded under what is being proposed here, which, again, opens 
the door to a great deal of danger. So that is a concern.
    I also wanted to make----
    Mr. Scott. Would the gentleman yield?
    Mr. Gohmert. Yes. Sure.
    Mr. Scott. I think the question would have to be asked in 
such a way that the picture was taken of an adult and 
transmitted to adults. Once you get into children, you have 
some opportunity to deal with it as child pornography. So long 
as it is not obscene for adults, you would have the 
constitutional problems.
    Mr. Gohmert. But the example being given is a juvenile 
having naked pictures of themselves transferred or sent to a 
boyfriend. So they are the ones that took them, they sent them. 
But then it was the release of those pictures publicly that was 
intended to harass and belittle, and that is a problem.
    But I want to make sure everybody understood, under Federal 
laws, 18 U.S.C. 2261(a) prohibits an individual from using the 
mail, any interactive computer 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. 18 U.S.C. 875 
makes it a crime punishable by up to 5 years in prison to 
transmit any communication in interstate or foreign commerce 
containing a threat to injure another person.
    So there are some bills--some laws out there dealing with 
this issue to some extent. But I did want to make clear that my 
position was not mischaracterized. My friend Ms. Wasserman 
Schultz, I believe, has the very noblest of intentions with 
this proposal here. No question about her intent. It is nothing 
but noble and good. But I believe I understood her to 
characterize part of my position is, quote, that everything is 
just fine. And that is not my position. There is nothing fine 
about people being belittled, harassed, intimidated over the 
Internet or any other way.
    So this is a rhetorical question that I would conclude 
with. But is this really an issue of lack of technical 
understanding of the Internet, or is it a lack of morality? 
Chuck Colson once said, you can't demand the morality of 
Woodstock and not expect a Columbine. If the morality is if it 
feels good, do it, then somebody is going to wonder if it feels 
good to belittle somebody over the Internet or shoot somebody 
or harm somebody. That will happen. We have got to come back 
around to a sense of morality that has been a problem 
throughout the ages.
    But I thank you for the time and yield back.
    Mr. Scott. Thank you.
    Mr. Gohmert was reading the stalking prohibition, and it 
says: Causes substantial emotional distress or what we would 
call threats of serious bodily harm, which would be easy. But 
``causes substantial emotional distress.'' I think Professor 
O'Neil was saying that you would have to connect it with actual 
harm. And if you have actually caused substantial emotional 
distress, that would--that psychological damage would qualify 
for what you were talking about?
    Mr. O'Neil. It would have to be, I think, medically 
certified. It really would have to be provable, and it would 
have to be significant. Otherwise I just don't think it is a 
viable case.
    Mr. Scott. Thank you.
    I would like to thank our witnesses for their testimony 
today. Members may have additional written questions for the 
witnesses, which we will forward to you and ask that you answer 
as promptly as you can so that the answers may be part of the 
    We have received written testimony from the ACLU and from 
Baron Zoker and Adam Thayer, which will be included in the 
record, without objection.
    Without objection, the hearing record will remain open for 
1 week for the submission of additional materials.
    And, without objection, the Subcommittee stands adjourned.
    [Whereupon, at 5:05 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X


               Material Submitted for the Hearing Record