Submitted by Gene Howington, Guest Blogger

How many of you know the difference between a right and a privilege?  As most of the audience for Res Ipsa Loquitur have an interest in law and/or politics, I’m going to hazard the guess that most of you have at least a rudimentary understanding of the difference in terms although it is a deceptively complicated subject on a philosophical level.  However, just so there is no mistake in fundamental terms, we’ll start with basic relevant definitions.

rights, n.,

1) plural of right, which is the collection of entitlements which a person may have and which are protected by the government and the courts or under an agreement (contract).

privileges and immunities, n.,

the fundamental rights that people enjoy in free governments, protected by the U.S. Constitution in Article IV: “The citizens of each state shall be entitled to all privileges and immunities in the several States,” and specifically to be protected against state action by the Constitution’s 14th Amendment (1868): “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The definition of “privileges and immunities” was first spelled out by Supreme Court Justice Bushrod Washington in 1823: “protection by the government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole.” However, the exact nature of privileges and immunities which the state governments could limit has long been in dispute, with the U.S. Supreme Court gradually tipping toward protecting the individual rights of citizens against state statutes that might impinge on constitutional rights. [emphasis added]

Constitutional rights, n.,

rights given or reserved to the people by the U.S. Constitution, and in particular, the Bill of Rights (first ten amendments). These rights include: writ of habeas corpus, no bill of attainder, no duties or taxes on transporting goods from one state to another (Article I, Section 9); jury trials (Article III, Section 1); freedom of religion, speech, press (which includes all media), assembly and petition (First Amendment); state militia to bear arms (Second Amendment); no quartering of troops in homes (Third Amendment); no unreasonable search and seizure (Fourth Amendment); major (“capital and infamous”) crimes require indictment, no double jeopardy (more than one prosecution) for the same crime, no self-incrimination, right to due process, right to just compensation for property taken by eminent domain (Fifth Amendment); in criminal law, right to a speedy trial, to confront witnesses against one, and to counsel (Sixth Amendment); trial by jury (Seventh Amendment); right to bail, no excessive fines, and no cruel and unusual punishments (Eighth Amendment); unenumerated rights are reserved to the people (Ninth Amendment); equal protection of the laws (14th Amendment); no racial bars to voting (15th Amendment); no sex bar to voting (19th Amendment); and no poll tax (24th Amendment). Constitutional interpretation has expanded and added nuances to these rights. [emphasis added]

Now what would you say if you knew that state senators were proposing legislation that would convert Freedom of Speech from a right to a privilege?  This is not a theoretical question.  Four state senators from New York are currently considering proposing such legislation.  Fortunately, the 1st Amendment gives us the right to discuss what a bad and scary idea it is that they propose.

Like a lot of bad legislation, this one is rooted in fear.  Namely, fear for the safety and well-being of children or the “My God! THINK OF THE CHILDREN!” school of spin.  This time the bad idea is rooted the boogeyman de jour of “cyberbullying”.  New York State Senators Jeff Klein (D-Bronx/ Westchester), Diane Savino (D-Staten Island/ Brooklyn), David Carlucci (D-Rockland/Orange) and David Valesky (D-Oneida) have unveiled their proposals in an innocuously titled document, Cyberbullying: A Report on Bullying in a Digital Age.

The proposed legislation seems innocuous enough on the surface and the two key elements are:

1) Updating the crime of Third-Degree Stalking (a Class A Misdemeanor) to include cyberbullying. This behavior is identified as a course of conduct using electronic communications that is likely to cause a fear of harm, or emotional distress to a person under the age of 21.

2) Expanding the charge of Second-Degree Manslaughter (a Class C Felony) to include bullycide. This is defined as when a person engages in cyberbullying and intentionally causes the victim of such offense to commit suicide.

The paper attempts to define cyberbullying and this is where the Constitutional (and other) problems become manifest.  I apologize for the all caps, but that is the document’s original formatting.  Apparently no one told the drafters of this paper that all caps is the cyber-equivalent of shouting . . . or maybe they did.  One must be shouting to be shouting “Fire!” in a crowed theater.  All author commentary below is properly capitalized and in bold face type for ease of identification.

“BOTH CYBERBULLYING AND CYBERSTALKING CAN TAKE PLACE IN INTERNET CHAT ROOMS, ON SOCIAL NETWORKING WEBSITES, AND VIA EMAIL, BBM (BLACKBERRY MESSAGES) OR TEXT MESSAGE, AMONG OTHERS. WITH RAPIDLY EVOLVING TECHNOLOGY, IT IS ONLY A MATTER OF TIME UNTIL THE NUMBER OF VENUES AND OPPORTUNITIES FOR CYBERBULLYING INCREASE EVEN FURTHER.

CYBERBULLYING AND CYBERSTALKING CAN CONSIST OF THE DIRECT SENDING OF THREATENING OR HARASSING EMAILS TO THE VICTIM, THE PROLIFERATION TO OTHERS OF A SINGLE MESSAGE, IMAGE OR VIDEO ABOUT THE PERSON, OR THE MORE COMPLEX ACT OF INFECTING THE VICTIM’S COMPUTER WITH ELECTRONIC VIRUSES AND HACKING PROGRAMS IN ORDER TO GAIN CONTROL OF AND ACCESS INTO THE VICTIM’S LIFE.”

All of which are covered by existing state and Federal laws.

“TYPICAL METHODS OF CYBERSTALKING INCLUDE:

• SENDING INTIMIDATING, THREATENING, OBSCENE AND/OR UNSOLICITED EMAILS, TEXT MESSAGES, OR OTHER ELECTRONIC COMMUNICATION;
• “SPAMMING” (SENDING COUNTLESS EMAILS OR TEXT MESSAGES CONTAINING PORNOGRAPHIC OR MARKETING MATERIAL);
• “HATE MAIL” (HATE-INSPIRED AND OPPRESSIVE HARASSMENT, BASED ON RACE, ETHNICITY, RELIGION, SEX, GENDER, SEXUALITY, SOCIOECONOMIC CLASS, AND OTHERS);
• LEAVING IMPROPER MESSAGES ON ONLINE MESSAGE BOARDS OR SENDING HURTFUL AND DAMAGING MESSAGES TO OTHERS;
• INFECTING THE VICTIM’S COMPUTER WITH VIRUSES OR SPYWARE; AND TRACING THE VICTIM’S ACTIVITY ON THE INTERNET, THEN STEALING HIS OR HER IDENTITY.”

Again, all of these items are covered by existing law.

“CYBERBULLYING EXHIBITS SIMILAR CHARACTERISTICS AS CYBERSTALKING, YET ALSO ENCOMPASSES BEHAVIOR THAT IS MORE REFLECTIVE OF A YOUNGER AGE GROUP:

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

There is no right be free of offense and intimidation is subjective unless it involves physical or a known and quantifiable psychological threat.   What is hurtful to one may simply be the truth to another.  What is cruel to one can be a kindness to another.  Being intimidated by someone else’s intelligence or the prospect of climbing a mountain or meeting someone that a person considers a hero is not the same thing as being intimidated by someone threatening to beat you to a bloody pulp, rape your dog, or cook and eat your relatives.  This is a vague definition ripe for abuse.

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

Once again, already covered by existing laws prohibiting assault.  One would think law enforcement would be glad of the copious evidence such recordings provide rather than criminalizing it.

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

Do I really need to point out the best way to deal with deceit is to expose it with facts, logic and sometimes even ridicule?

• “POSTING MALICIOUS STATEMENTS OR COMPROMISING PICTURES OF THE VICTIM ON A WEBSITE (“BASH BOARD”);
• “OUTING” (SHARING ANOTHER PERSON’S SECRETS OR EMBARRASSING INFORMATION/IMAGES ONLINE);
• “DISSING” (SENDING OR POSTING GOSSIP OR RUMORS ABOUT A PERSON TO DAMAGE HIS/HER REPUTATION OR FRIENDSHIPS);
• IMPERSONATION (PRETENDING TO BE SOMEONE ELSE AND SENDING OR POSTING MATERIAL TO GET THAT PERSON INTO TROUBLE); AND”

Yet again, covered by existing laws.  The odor of redundancy is starting to make me dizzy.

• “EXCLUSION (INTENTNALLY AND CRUELLY EXCLUDING SOMEONE FROM AN ONLINE GROUP).”

As the author of the Techdirt article humorously notes, “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.”

(“Cyberbullying: A Report on Bullying in a Digital Age”, pp. 9-12., commentary added.)

The net effect of this proposed legislation is to turn free speech on its head.  Still don't think so?  Consider this line from the report:

“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.” 

(“Cyberbullying: A Report on Bullying in a Digital Age”, pp. 34., emphasis added, capitalization corrected.)

They follow this gem up with a weak application of strong rule utilitarianism (which as I have stated before is an improper and extremist model for analysis of legislation), misapplication of the words of Justice Oliver Wendell Holmes and a fallacious appeal to Virginia v. Black, 538 U.S. 343 (2003) to rationalize a vague law that leaves speakers of all sorts (public and private) open to the discretion and abuse of discretion by prosecutors and judges.  While free speech is not an absolute right (we do have laws about defamation, direct threats and incitement), it is a right that should be limited on a very narrow and very specific basis.  Trying to stop kids from bullying one another is also as impractical a goal for a law as to write a law legislating the tides.  The solution to bullying to the extent there is one lay in good parenting, not bad law.  Remove the technological aspect of this issue?  And bullying will continue as it has continued for the ages of humanity: in schools, in school yards, in social venues and in private.

We must fight to ensure that when free speech is limited, it is done so in a refined and concise way to limit potential abuses of said laws while addressing a direct and imminent threat, not in some vague manner to address a problem that is not best addressed by the law in the first place.  To do otherwise will surely lead to abuses to oppress dissent and differing opinions not by defeating them in the marketplace of ideas freely exchanged but by the whim of executive fiat misusing the rule of law to enforce their personal and/or political agendas and/or vendettas.  Personally, I question whether this proposal as presented if it should be passed into law would withstand judicial scrutiny based on Constitutional standards, but in this day and age and the questionable composition of the current Supreme Court, I will not take that as a given.

Is this proposed law a good idea, a bad idea, an idea that needs refinement, or an idea that needs to meet the Barney Fife solution by “Nipping it in the bud, Andy”?

What do you think?

~ Submitted by Gene Howington, Guest Blogger

Source(s): Techdirt, nysenate.gov, nysenate.gov/files, Law.com