NY State Senators Say We've Got Too Much Free Speech; Introduce Bill To Fix That

from the i-find-this-offensive dept
techdirt.com

We've been pointing out a variety of attempts to push back on the First Amendment lately. One fertile ground for such attacks are local politicians carrying the "cyberbullying" banner, in various attempts to magically outlaw being a "jerk" online, usually by making it illegal to offend someone online. Of course, making someone's action illegal based on how someone else feels about it is all kinds of crazy. It also would seem to violate the very principles of the First Amendment, which bar Congress (and local governments) from passing any laws that take away one's right to free speech.

In the past, lawmakers pushing these laws have tended to simply ignore the First Amendment issue, and focus on screaming "protect the children!" as loudly as possible (never mind the fact that kids seem much less concerned about "bullying" than all these adults seem to think). However, it appears that some state Senators in NY are trying a new line of attack: going directly after the First Amendment and suggesting that current interpretations are way too broad, and it's not really meant to protect any sort of free speech right. In fact, it sounds as though they're trying to redefine the right to free speech into a privilege that can be taken away. Seriously:

Proponents of a more refined First Amendment argue that this freedom should be treated not as a right but as a privilege — a special entitlement granted by the state on a conditional basis that can be revoked if it is ever abused or maltreated.

Yes, that totally flips the First Amendment on its head. It is not a "more refined First Amendment." It's the anti-First Amendment. It suggests, by its very nature, that the government possesses the right to grant the "privilege" of free speech to citizens... and thus the right to revoke it. That's an astonishingly dangerous path, and one that should not be taken seriously. Of course, given their right to speak freely, state senators Jeff Klein, Diane Savino, David Carlucci and David Valesky have every right to put forth that argument -- but similarly, it allows others to point out their rather scary beliefs.

If you'd like to see the full report (pdf), I warn you that it is almost entirely written IN ALL CAPS (for no clear reason, there are a few chunks that revert to normal capitalization -- including a big chunk in the middle, that starts mid-section). I have no idea why so much of the paper is in ALL CAPS, but I'm kind of offended by it. Can we please remove their "privilege" to put out such things until they've learned to not maltreat capital letters?

The paper attempts to list out various examples of types of cyberstalking and cyberbullying -- some of which seem pretty ridiculous:

LEAVING IMPROPER MESSAGES ON ONLINE MESSAGE BOARDS OR SENDING HURTFUL AND DAMAGING MESSAGES TO OTHERS;

"Improper"? Seem a little broad to you? Does that mean the next person who comments here about something off-topic is a cyberbully?

“FLAMING” (HURTFUL, CRUEL, AND OFTENTIMES INTIMIDATING MESSAGES INTENDED TO INFLAME, INSIGHT, OR ENRAGE);

Whoo boy. An awful lot of you in the comments better watch out...

“HAPPY SLAPPING” (RECORDING PHYSICAL ASSAULTS ON MOBILE PHONES OR DIGITAL CAMERAS, THEN DISTRIBUTING THEM TO OTHERS);

Holy crap. 2005 wants its silly "crazy children" meme back. Yes, there were a few instances of this extremely brief "fad" that came and went in like a month half a decade ago. Then the next internet meme came along.

"TROLLING” (DELIBERATELY AND DECEITFULLY POSTING INFORMATION TO ENTICE GENUINELY HELPFUL PEOPLE TO RESPOND (OFTEN EMOTIONALLY), OFTEN DONE TO PROVOKE OTHERS);

Ooh, once again. Commenters beware.

EXCLUSION (INTENTIONALLY AND CRUELLY EXCLUDING SOMEONE FROM AN ONLINE GROUP).

Seriously? If we don't let you into the club, it's now a form of cyberbullying? It makes you wonder what happened to these particular Senators when they were kids.

The paper also attacks "anonymity," again ignoring how anonymity can often be extremely helpful to kids who wish to discuss things and ask questions without revealing who they are.

As for where they're going with this? Well, you guessed it: they're planning to introduce new laws to deal with cyberbullying (even though NY already has such a law). The plan is to extend two existing areas of law: "stalking in the third degree" will now include cyberbullying, and "manslaughter in the second degree" will be expanded to "include the emerging problem of bullycide."

This is basically a "Lori Drew" law. And it's ridiculous. If I say something to someone and they then go commit suicide, should I be guilty of manslaughter? Do the folks behind this not realize that this doesn't help prevent suicides, but it encourages them in giving people who are upset by something someone said extra incentive to kill themselves to "get back" at the person who was mean to them.

The cyberstalking part is no less ridiculous. It's ridiculously broad. It does not require that the person accused of cyberstalking initiate the activity, it does not require intent to harm or frighten, and a single message can be a cause of action. Think about that for a second. Someone could send you a message, you could do a single reply with no ill will or bad intent... and be guilty of the crime of cyberstalking. Damn. Do the folks writing this bill not realize how widely this will be abused?

Hopefully no one is so offended in reading such a dangerous proposal that they go out and commit suicide. At least be comforted in knowing that it won't allow for the authors to be accused of manslaughter until after the bill passes.

Related: dailytech.com