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]
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
Oops….Did I break some cyber law by outing your friend…..
I bet your friend is Sheriff Andy Taylor….Right…
Mostly OT: A friend who wishes to remain anonymous shared this with me and now I’m sharing it with you . . .
Gene H.,
Excellent article….
AN and Blouise…..That those are funny…….TY…
Dredd…..Cattlus….Excellent points…..
The first amendment right as opposed to a privilege was Gene H’s focus here.
Probably where the dilution of using that as a defense in statutory attacks on it will more likely continue to come through the already established “no right is absolute” so we are not allowed to yell “fire” in a movie theater when there is no fire.
And as Gene pointed out about already existing law, there is already a law against lying (if there is no fire then one lies when one yells or whispers that there is a fire) in the form of fraud, misrepresentation, and perjury for instance.
How that got lost in the “you can’t yell fire” episodes that associate themselves with free speech is probable psuedolaw.
Catullus,
In re YouTube video of cops beating someone down, yes, I think that could fall under this proposed vague law.
angrymanspeaks,
As those were not my words, you don’t have a bone to pick with me, but rather with Law.com’s legal dictionary and the summation included therein for the definition of Constitutional rights. Admittedly, it’s the definition I chose to use to provide as a framework for this article, however, the 2nd Amendment not being the focus of this article there was nothing in that short definition I found inappropriate to making the point that there is a difference between rights, privileges and Constitutional rights.
In re liberals can’t seem to get behind the 2nd Amendment? If you think all people with liberal viewpoints are against the Right to Bear Arms, you’d be mistaken. Now the Right to Arm Bears? That’s another story (much like the topic of the 2nd Amendment in general to the topic at hand).
Great article.
I do have one tiny little bone to pick with you. It’s the way you have of stating the second amendmant.
You write:
“state militia to bear arms” (Second Amendment)
The actual wording is: A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed
My political opinions run pretty far left and I see this kind of perversion of this amendment frequently, usually from the left.
I am not familiar with you or your credentials but I do know that the quotation I have sited is from the US government web site
http://www.archives.gov/exhibits/charters/bill_of_rights.html. One of the things I find so reprehensible about the Tea Party and other conservatives is their tendency to twist things around to look as though their position is stronger than it is.
Your per”version” of the text of this amendment is just such an act. I don’t mind that you disagree with me. I don’t even mind that you insist on “interpreting” the Constitution rather than accepting it as written. But I do mind and I think it undignified to change the words of a historical document of such import to the American people to make it look as though the Constitution supports the idea that a government sponsored Militia are the only persons with the right to bear arms when the actual text says clearly the right of the people to keep and bear Arms, shall not be infringed.
This is a scary idea I know especially for those who don’t use or want guns. But the fact that one person finds the idea of millions of Americans armed frightening, doesn’t change the wording or intent of the Constitution as written.
I fail to understand how a liberal can say he’s a liberal and yet be in opposition to the right to bear arms. It is obvious from the unadulterated amendment that the intention was for the citizens to bear arms to keep their state free. State as in Maryland, Virginia, not the larger sense of a nation. The people were assured this right in order to be able to defend themselves from invasion by a foreign country or by the federal government. Militias were not standing troops attached to the federal government or the army. They kept their weapons at home and were counted on to defend the colony or state.
The National Guard is not the same thing. It is far too much under the control of the government both federal and state.
It is interesting that the only liberal position taken by the Conservative party is the right to bear arms.
And that the one right the liberals don’t seem to be willing to support is the right to bear arms but I submit that defense of that right is a liberal, not a conservative stance.
Liberals are the ones who seek to assure the people their rights.
Conservatives seek to take those rights away. Except in this case.
I find that very strange.
My opinions run so far left that I make Democrats look like Fascists.
I support the right of every American to own and carry openly a firearm of their choice; just as I support their right to peaceably assemble, recognizing that such an assembly can turn violent at a moment’s notice.
The assembly is not the crime. The violence is. We have a right, recognized and guaranteed by the Constitution to assemble.
Carrying a gun is not the crime. Shooting someone with it, other than in self defense is. We have a right recognized and guaranteed by the Constitution to keep and bear arms.
I would feel hypocritical indeed if I defended a person’s right to speak freely or chose their own religion or smoke marijuana or have multiple spouses or commit suicide, but did not defend their equal and clearly stated right to keep and carry.
I tell many conservatives, many of whom are conservatives because of this issue and only because of this issue, that the conservatives only support the right o bear arms to get the money and votes that come with the Gun Lobby. That they as supporters of this right are not really conservatives but have been fooled into thinking they are because of the Liberals refusal to take this cause on and the Conservatives willingness to do so as though supporting this one, of the peoples many rights makes them the peoples champion.
I think by not supporting this very basic right of the American people we have missed out on a huge amount of support for our other positions. And we should have that support not because we falsely cultivate it but because we genuinely support the rights of gun owners just as vigorously as we defend and support the rights of people who wish to speak their unpopular opinions or build a mosque or burn the flag or any of the other things that have often been the victim of the Conservative Party.
anon,
If they would add logocide and verbicide to this law I might be for it.
Root word + -cide
========================
dickicide – what Cheney did to us.
… and bad idea that needs no refinement … into the trash
Stupidcide – killing intelligence
anon,
Please add ecocide to your list, because it has the potential to kill the most of living things.
Nevertheless, very good points.
If they would add logocide and verbicide to this law I might be for it.
Root word + -cide
homicide – killing a person
patricide – killing dad
matricide – killing mom
fratricide – killing your brothers
sororicide – killing your sister
filicide – killing your son or daughter
senicide – killing the elderly
infanticide – killing babies
spermicide – someone explain this one to Gene.
felicide – killing cats
canicide – killing dogs
regicide – killing the king
tyrannicide – killing the tyrant
deicide – killing a god
suicide – killing one’s self
genocide – killing large groups of people (like a race of people) gen, genome, genus)
insecticide – killing insects
pesticide – also means killing pests (*)
herbicide – killing plants
fungicide – killing fungus
So
bullycide – WHAT THE FUCK DOES BULLYCIDE MEAN?
I did. As Jo asked yesterday, how do you spell that sound you make when you are choking on your own snot?
OS,
consider the source!
If all of the alleged offenses that these State Senators are trying to protect against arer already covered by State and Federal statutes, why in the hell do they need to water down the First Amendment? Incredible. Thanks Gene.
I see that the House Judiciary Committee passed a bill yesterday that would make US law on drugs enforceable worldwide. The Chairman, Lamar Smith (R-Texas) seems to think it is a good idea that US drug laws should be enforced on everyone, in every country.
Rep. Smith seemed to be unclear on how it would be enforced. He also did not indicate any concern about what the governments of all those foreign countries would think if this bill were passed into law. He also fails to mention what he would do if foreign governments passed similar laws affecting US citizens living in the US.
Typical.
http://www.huffingtonpost.com/2011/10/06/us-drug-policy-war-congress_n_998993.html
Gene H—I hope you weren’t intimidated by my insight on incitement…that would be criminal under the proposed law.
The more you study this, the more it seems like an Onion article and the thought comes to mind that they really can’t be serious, but they are.
I love this gem:
•“HAPPY SLAPPING” (RECORDING PHYSICAL ASSAULTS ON MOBILE PHONES OR DIGITAL CAMERAS, THEN DISTRIBUTING THEM TO OTHERS);
This could be used by a prosecutor to punish citizens who use mobile phones and digital cameras to record physical assaults by the police.
All that is required is:
A. A physical assault.
B. Someone using a digital camera or mobile phone to record it.
C. Distributing the recording to others.
If this becomes law and I use my cell phone to record the police beating the tar out of someone and I post that video to YouTube, it seems I have satisfied all three requirements to be in violation of the law. Or am I reading too much into this?
Catullus,
Your insightful comments about incitement are appreciated.
•“FLAMING” (HURTFUL, CRUEL, AND OFTENTIMES INTIMIDATING MESSAGES INTENDED TO INFLAME, INSIGHT, OR ENRAGE);
I thought this may have been an error on the part of Gene Howington, but I read the actual text and they really did use the word INSIGHT.
I know it is sometimes considered poor form to criticize improper application of words, but lawmakers really should have a better proof-reader.
Ooops! There I go, cyberbullying..er ah wait..since I’m an adult I guess this would be considered cyberstalking?
Good points. The Crosby, Stills, Nash, & Young song has a better solution: “teach your children well” …