By Brendan McHugh
Are they bullying the First Amendment?
Bronx/Westchester state Senator Jeff Klein’s Independent Democratic Conference (IDC) has released a new report and an accompanying bill that could restrict the freedom of speech in hopes of curbing online bullying, or “bullycide.”
The new bill aims to make online bullying directed at those under 21 years old by adapting current stalking and manslaughter laws to the Internet.
|An example of cyberbullying.|
“What we’ve found out is that laws aren’t written with Facebook and Twitter in mind, and every teen has a cell phone now,” said Rich Azzopardi, spokesman for the IDC.
The bill states that someone who conducts electronic communications about or to someone under 21, whether intentionally harmful or not, that causes emotional harm or suicide can be convicted of stalking in the third degree or, in the case of suicide, manslaughter in the second degree. The penalty for manslaughter in the second degree can be as much as 25 years in prison.
For First Amendment advocates, this new bill is extremely troublesome.
“The point of free speech is speaking without having our purposes evaluated without fear of being prosecuted by a judge and jury, even when we know those views are offensive to people,” said Eugene Volokh, a law professor at UCLA. “It’s too bad that these legislators are trying to restrict free speech.”
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He offers a number of examples that would create serious dilemmas with Klein’s bill. First and foremost is the grey area the bill allows for. “…THERE NEED NOT BE INTENT TO CAUSE A SPECIFIC RESTULT, SUCH AS FEAR (sic).” Volokh offers the anecdote of a minister trying to talk to the family of a young boy that is gay. If the minister “outs” the boy to his family through an email or Facebook message, and the boy finds out about the communication and commits suicide, the priest could be held responsible for the suicide.
“A prosecutor could argue that the minister reasonably should have known that this would cause material harm to the emotional health of the child,” Volokh said. “Again, the minister gets convicted unless the jury concludes that his purpose was ‘legitimate.’”
Under Klein's proposed legislation, because this was sent online rather than say, through snail mail, it is enough to attempt to prosecute the minister.
The American Civil Liberties Union says the bill is misguided; the focus needs to be on education, not prosecution.
“This bill identifies a very serious problem. But instead of criminalizing speech, we need to train teachers and students to recognize and respond to the early signs that a student is being bullied. As we’ve seen, by the time law enforcement gets involved, it’s too late,” said New York Civil Liberties Union Executive Director Donna Lieberman.
Message boards and bloggers are quick to note the irony of the report as well. Most of it is written as all capitalized, which, on the Internet, would suggest a person is yelling. They’ve also pegged this report as nothing more than another one of the IDC’s publicity stunts, similar to Klein’s war against the fruity alcoholic drink Four Loko, in which they ride the wave of what’s making the front pages until they jump onto the next hot topic.
Furthermore, they note that the report identifies “happy slapping,” where people would record physical assaults on cellphones or cameras and distribute them to others. The fad existed in the early part of the millennium and quickly died down when law enforcement’s own adaption to the Internet allowed them to start identifying perpetrators and arresting them for the physical crimes.
Azzopardi says the bill is not only doing nothing more than adapting old laws to new technology, but it is also narrowly drafted to avoid conflicting with the First Amendment.
“There is a legal threshold for stalking. That threshold is not changing, just being modernized,” he said.
Though in the report, they offer reasoning for restricting the first amendment. After presenting one paragraph arguing for the First Amendment, they follow up with: “AND YET, PROPONENTS OF A MORE REFINED FIRST AMENDMENT ARGUE THAT THIS FREEDOMS SHOULD BE TREATED NOT AS A RIGHT BUT AS A PRIVILEGE—A SPECIAL ENTITLEMENT GRANTED BY THE STATE ON A CONDITIONAL BASES THAT CAN BE REVOKED IF IT IS EVER ABSUED OR MALTREATED (sic).”
They go on to suggest that in the case of cyberbullying, restrictions on the First Amendment are warranted. “THE PERCEIVED PROTECTIONS OF FREE SPEECH ARE EXACTLY WHAT ENABLE HARMFUL SPEECH AND CRUEL BEHAVIOR ON THE INTERNET. IT IS THE NOTION THAT PEOPLE CAN POST ANYTHING THEY WANT, REGARDLESS OF THE HARM IT MIGHT CAUSE ANOTHER PERSON THAT HAS PERPETUATED, IF NOT CREATED, THIS CYBERBULLYING CULTURE. BUT “HATE SPEECH” THAT CAUSES MATERIAL HARM TO CHILDREN SHOULD HAVE CONSEQUENCES (sic).”
The bill also defines a number of situations that are more than just an extension of current stalking or manslaughter laws.
“Flaming,” the process of sending intimidating, hurtful or cruel messages intended to enrage the recipient, is an everyday practice for political pundits.
“Exclusion,” the process of intentionally excluding someone from an online group, is in every right of a group, Volokh says. “Being in an online group is a basic right of who we want to include in our conversation,” he said, adding that jails wouldn’t be big enough to accommodate all who are prosecuted under the cyberbullying umbrella.
Senate Democrat insiders say the bill is well intentioned, but has almost no percent chance of become law without serious debate and reform, as the Democratic controlled Assembly would have to “tear it down and build it back up."
"Nothing’s ever easy in the Senate," they added.