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Privacy Rights in the Digital Age

Harassment

by Mary M. Penrose

On social media, a form of behavior targeting, embarrassing, threatening, or otherwise exposing an individual to ridicule and shame via email, text messages, Instagram photo-sharing, Twitter, Facebook, or other digital platforms. Harassment generally requires some pattern of continuing behavior. A single, egregious act—particularly one that is shared repeatedly by others—can also constitute harassment. Harassment does not require sexual exploitation, but such exploitation is increasing becoming a common form of harassment through sexting, the sharing of sexually graphic photos and information not intended to be shared with a wider audience. With the advent of social media, and constant advancements in technology, harassment has become a serious issue for schools, parents, and employers. Another phrase used to describe digital harassment, particularly when a child or minor is targeted, is cyberbullying.

Not all forms of harassment are unlawful. Many social media campaigns target individuals—and companies—by depicting (and forwarding, or sharing) a particular story to cause humiliation or to bring about change. This type of harassment can be hurtful and damaging to an individual. In response, many schools, including colleges, and employers have enacted social media or online harassment policies to minimize disruptions at school and work. Such policies may be subject to First Amendment challenge for stifling free speech and expression; however, the First Amendment only applies to governmental actors. Private schools and private employers have broad ability to sanction speech without breaching the First Amendment.

When harassment is severe or pervasive, there can be legal—even criminal—consequences. Several high-profile cases of cyberbullying have resulted in teen suicides. These tragedies have helped shape state legislation regarding harassment and cyberbullying. Two notable cases include the deaths of Megan Meier, a Missouri adolescent who hung herself after being bullied through a fake MySpace account, and Tyler Clementi, a Rutgers University freshman who jumped to his death after his roommate secretly filmed him kissing another man and then discussed the episode via Twitter. Both cases resulted in criminal prosecutions and garnered significant media and legislative attention. The line between criminally sanctionable conduct and free expression in a technologically advancing world is sometimes difficult to discern, and the legal landscape in this area keeps evolving.

Still, not all speech receives protection under the First Amendment. For example, speech that defames, libels, is obscene, or threatens has been ruled low-value speech by the U.S. Supreme Court and is not protected. Individuals can be sued civilly for monetary damages if they defame or libel another individual. Defamation and libel generally require a false statement of fact, not an opinion, that is published (which can mean merely spoken to another person) that causes injury to that person's reputation. Public figures, such as political leaders and certain entertainers, have less protection than ordinary individuals under defamation and libel laws. Violations against public figures require actual malice. In contrast, an ordinary factual misstatement published on social media (or reposted on social media) can constitute defamation or libel.

In addition to civil penalties, harassment can lead to criminal penalties. The federal government criminalizes “any communication containing any threat … to injure the person of another,” 18 United States Code § 875 (c). The Supreme Court recently clarified the parameters of this statute in Elonis v. United States, 135 S.Ct. 2001 (2015). The decision, issued in 2015 by the Roberts Court, analyzed the criminal conviction, and nearly four-year prison sentence, of a man who had used Facebook to communicate what he characterized as rap-style lyrics. Anthony Douglas Elonis, writing under the pseudonym “Tone Dougie,” posted several communications with violent undertones. Elonis allegedly targeted his coworkers, ex-wife, Federal Bureau of Investigation (FBI) agents, and an unknown elementary school with his posts. The case recounted several of Elonis's posts.

Elonis's posts regarding his wife, including a satirical posting about killing his wife, resulted in her receiving a protective order against Elonis. Thereafter, Elonis posted the following:

Fold up your [protection-from-abuse order] and put it in your pocket

Is it thick enough to stop a bullet?

Try to enforce an Order that was improperly granted in the first place

Me thinks the Judge needs an education on true threat jurisprudence

And prison time'll add zeros to my settlement …

And if worse comes to worse

I've got enough explosives to take care of the State Police and the Sheriff's Dept.

At the bottom of this post was a link to the “Freedom of Speech” article on Wikipedia. A later post suggested that Elonis was willing to attack an elementary school:

That's it, I've had about enough

I'm checking out and making a name for myself

Enough elementary schools in a ten mile radius

to initiate the most heinous school shooting ever imagined

And hell hath no fury like a crazy man in a Kindergarten class

The only question is … which one?

Following reports of Elonis's posts to police, the FBI began monitoring Elonis's Facebook account. After the school posting appeared, FBI agents went to Elonis's home to talk with him. Once the agents left, Elonis made another violent post:

You know your shit's ridiculous

when you have the FBI knockin' at yo' door

Little Agent lady stood so close

Took all the strength I had not to turn the bitch ghost

Pull my knife, flick my wrist, and slit her throat

Leave her bleadin' from her jugular in the arms of her partner

So the next time you knock, you best be serving a warrant

And bring yo' SWAT and an explosive expert while you're at it

Cause little did y'all know, I was strapped wit' a bomb

Why do you think it took me so long to get dressed with no shoes on?

I was jus' waitin' for y'all to handcuff me and pat me down

Touch the detonator in my pocket and we're all goin'

[BOOM!]

Are the pieces comin' together?

Shit, I'm just a crazy sociopath that gets off playin' you stupid fucks like a fiddle

And if y'all didn't hear, I'm gonna be famous

Cause I'm just an aspiring rapper who likes attention

who happens to be under investigation for terrorism

cause y'all think I'm ready to turn the Valley into Fallujah

But I ain't gonna tell you which bridge is gonna fall into which river or road

And if you really believe this shit

I'll have some bridge rubble to sell you tomorrow

[BOOM!] [BOOM!] [BOOM!]

Based on these and other postings, the federal government prosecuted Elonis under the federal statute prohibiting communications threatening another. Elonis was charged with five felony counts of violating the federal statute and convicted on four counts. He appealed based on the trial and appellate court's failure to require proof of specific intent—or mens rea—that Elonis's posts were intended to communicate an actual threat. The Supreme Court overturned Elonis's conviction but did not clarify whether the required mens rea is recklessness (that the defendant knew or should have known the language communicated an actual threat) or actual knowledge.

Elonis nevertheless is a reminder that online harassment, even if packaged as satire or music, can result in criminal prosecution and, possibly, jail time.

Elonis is the first Supreme Court case addressing criminal culpability for digital harassment. The Court did not address the First Amendment's applicability as a defense to digital harassment statutes. State courts have analyzed such statutes under the First Amendment, often finding that legislatures have gone too far in suppressing speech despite their laudable desire to protect individuals against harassment. One notable example is People of New York v. Marquan M., 24 N.Y.3d 1 (2014), 19 N.E.3d. 480 (2014), which was decided by the New York Court of Appeals in July 2014. The court, in striking down Albany County's antibullying statute, noted that the “problem of bullying continues, and has been exacerbated by technological innovations and the widespread dissemination of electronic information using social media sites.” Nonetheless, and despite recording its disdain for the defendant's bullying tactics, the court found the county's legislation facially invalid due to its overbroad application.

In contrast, a North Carolina appellate court upheld a cyberbullying statute against a First Amendment attack, distinguishing conduct of a criminal nature from the expression of ideas. In State of North Carolina v. Robert Bishop, 774 S.E.2d 337, 2015 N.C. App. LEXIS 522 (2015), the North Carolina Court of Appeals analogized the North Carolina statute criminalizing “use of a computer or computer network to ‘[p]ost or encourage others to post on the Internet private, personal or sexual information pertaining to a minor’ with ‘the intent to intimidate or torment a minor’ to harassment using a telephone. Both statutes targeted conduct, not speech. Thus, the North Carolina statute and the defendant's conviction (resulting in a suspended jail sentence and forty-eight months of probation) were both upheld.

Legislatures wanting to protect individuals against digital harassment must be cautious in the drafting process to ensure that enacted criminal statutes do not offend the First Amendment. Harassment may be wrong, and it may be hurtful, but it is not always illegal.

Further Reading

1 

Baker, Patricia. “Sexual Harassment: High School Girls Speak Out.” Canadian Review of Sociology and Anthropology 34, no. 1 (February 1997): 114.

2 

Cullina, Matt. “Broadband Bullies: Homeowners Insurers Are Being Asked to Pay Damages for Social Media Harassment.” Best's Review, November 1, 2013.

3 

Laer, Tom Van. “The Means to Justify the End: Combating Cyber Harassment in Social Media.” Journal of Business Ethics 123, no. 1 (August 2014): 85–98.

4 

Levmore, Saul. The Offensive Internet: Speech, Privacy, and Reputation. Cambridge, MA: Harvard University Press, 2010.

5 

“Mainstream Neglect of Sexual Harassment as a Social Problem.” Canadian Journal of Sociology 21, no. 2 (March 22, 1996): 185–203.

6 

Volokh, Eugene. “Freedom of Speech, Cyberspace, Harassment Law, and the Clinton Administration.” Law and Contemporary Problems 63, nos. 1 and 2 (Winter/Spring 2000): 299–335.

See also: First Amendment to the U.S. Constitution; Obscenity; Sexting; Social media

Citation Types

MLA 9th
Penrose, Mary M. "Harassment." Privacy Rights in the Digital Age, edited by Christopher T. Anglim & JD, Salem Press, 2016. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA_0108.
APA 7th
Penrose, M. M. (2016). Harassment. In C. Anglim & JD (Ed.), Privacy Rights in the Digital Age. Salem Press. online.salempress.com.
CMOS 17th
Penrose, Mary M. "Harassment." Edited by Christopher T. Anglim & JD. Privacy Rights in the Digital Age. Hackensack: Salem Press, 2016. Accessed May 30, 2026. online.salempress.com.