From a report on cyber-bullying put out by a small group of Democratic legislators in New York:
And yet, 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.
That statement gave me chills. The report was written in support of a bill to address cyber-bullying, which can be a real problem and certainly can rise to the level of being the kind of harassment that crosses a legal line. But as Volokh points out, the language in the bill is so broad that it could regulate almost anything that makes another person upset.
That proposal has two parts. First, the senators say they’ll introduce a bill that, among other things, would make it a crime to “intentionally, and for no legitimate purpose, engage in a course of conduct using electronic communication directed at a child under the age of twenty-one years” when the actor “knows or reasonably know that such conduct … causes material harm to the mental or emotional health … of such child.” And the bill would “clarif[y] that a single electronic communication can be considered a ‘course of action’ if it is directed at a child under the age of twenty-one years and transmitted to multiple recipients –- even if the child is not one of them.”
So let’s consider this (assume all the actors here are teenagers, unless otherwise specified):
(1) A girl finds that her boyfriend has been cheating on her with her best friend. She e-mails several other friends a message condemning the best friend, who is then humiliated because all her friends know what she’s done. That, under the bill, would likely be a “course of conduct” “directed” at the former best friend (even though the best friend isn’t even a recipient), and the sender probably reasonably should have known (I assume that’s what the proposals means by “reasonably know”) that this could “cause material harm to the … emotional health” of the former best friend. We can’t be sure, of course, since who knows what “material harm” to “emotional health” really requires — but it’s certainly possible that a prosecutor (maybe a friend of the former best friend’s family?) will conclude that humiliation in front of one’s friends qualifies. Now the e-mailer would face a trial at which the jury decided whether she had a “legitimate purpose” for the communication; if the jury says no, the e-mailer gets convicted.
(2) A minister e-mails a gay child’s relatives who are his parishioners, saying that the child is a sinner and faces the risk of damnation if he continues sinning; the child foreseeably learns of the message. That too is a “course of conduct” “directed” at the child, and there too a prosecutor could argue that the minister reasonably should have known that this would “cause material harm to the … emotional health” of the child. Again, the minister gets convicted unless the jury concludes that his purpose was “legitimate.”
(3) A newspaper columnist whose column is published on the newspaper’s Web site — or a blogger — is incensed at what he sees as the misconduct of some high school or college student (maybe some petty crime committed by a star football player, which the community hasn’t yet noticed). He publishes a column condemning the student, or for that matter condemning the school for hushing up the crime. That too is a “course of conduct” “directed” at the child, and there too a prosecutor could argue that the columnist reasonably should have known that the result humiliation would “cause material harm to the … emotional health” of the child. Again, the columnist or blogger gets convicted unless the jury concludes that his purpose was “legitimate.”
I can give more examples, but you get the point: The law would put a wide range of speakers — including those who speak to the public at large, or to a group of willing listeners — at the mercy of a prosecutor’s, judge’s, and jury’s decision about whether the speech has a “legitimate purpose.” That strikes me as a pretty serious First Amendment violation.
Such a law would almost certainly be struck down by the courts as overly broad, as it should. I think there are circumstances where cyber-bullying would rise to the level of being harassment and where the law should step in, but such laws have to be written narrowly and specifically, not so broadly that they could be used to punish clearly protected speech. That’s not a “refined” view of the First Amendment, it’s the negation of it.