Four New York Democratic Senators: “Proponents of a More Refined First Amendment Argue That This Freedom Should Be Treated Not as a Right But as a Privilege”

The sentence reads, in a context that shows the authors agree with the argument:

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’s what’s written in the recently released Cyberbullying: A Report on Bullying in a Digital Age, published by the Independent Democratic Conference, a group of four New York state senators — Jeff Klein, Diane Savino, David Carlucci and David Valesky. The theoretical explanation of this “more refined First Amendment” in the report is pretty general and abstract, but the concrete proposal in the report seems quite consistent with the disdain for the First Amendment that the phrase “this freedom [of speech] should be treated not as a right but as a privilege” suggests.

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.

The second part of the proposal is to create a new crime of “bullycide,” defined as (a) engaging in the speech prohibited by the first part of the proposal when (b) such speech intentionally or recklessly (c) causes the victim to commit suicide. Now such a statute would almost never be applicable, because it would only cover situations where the defendant had the conscious objective of causing the victim to commit suicide, or was “aware of and consciously disregard[ed] a substantial and unjustifiable risk” that the victim would commit suicide. While bullies often have the intention of causing emotional distress, and are often aware of a substantial risk that the victim will be seriously distressed, they very rarely intend to cause the victim to commit suicide, and they are very rarely aware of a substantial and unjustifiable risk of this happening — fortunately, suicide is a rare enough action that the chances that it would happen as a result of any particular conduct are very low.

But when a teenager commits suicide, and someone’s actions seem to have helped trigger the suicide, I suspect there will often be likely to be lots of pressure to hold that person responsible — even if in fact there is little evidence that the person intended that the victim cause suicide, or was aware of a substantial risk of such a suicide. So the result, I suspect, will be quite a few prosecutions that should ultimately come to nothing, and that mostly do come to nothing, but that cause a great deal of expense and pain to the targets, without providing much of a deterrent against this sort of activity.

In any event, though, the most significant part of the law is likely to be the first part. And that part does reflect considerably less respect than I think is proper for the First Amendment as a right (even as an insufficiently refined right).

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