Proposed Virginia Criminal Ban on “Bullying”

Just introduced today by Delegate Mark Keam:

If any person, with the intent to coerce, intimidate, or harass any person, … uses a computer, including an electronic communication device, or computer network to … engage in bullying, as defined in § 22.1-276.01, he is guilty of a Class 1 misdemeanor.

[§ 22.1-276.01:] “Bullying” means any aggressive and unwanted behavior that is intended to harm, intimidate, or humiliate the victim; involves a real or perceived power imbalance between the aggressor or aggressors and victim; and is repeated over time or causes severe emotional trauma. “Bullying” includes cyber bullying. “Bullying” does not include ordinary teasing, horseplay, argument, or peer conflict.

So if a high school student posts several Facebook items on her own page harshly castigating her ex-boyfriend for cheating on her, and this is seen as “intended to … harass” and “humiliate” the ex-boyfriend (not implausible) and “involv[ing] a real or perceived power imbalance” — whatever that means — that would be a crime. Likewise if some students post Facebook items harshly castigating a classmate for committing a crime or some other misdeed, unless of course this qualifies as “ordinary … peer conflict.”

But wait: While the definition of “bullying” in the statute is drawn from a statute that is targeted at schoolchildren, nothing in the definition itself is limited to such children. And the statute that Del. Keam’s proposal would modify applies to everyone, not just adults. So it may well be that the proposal, if enacted, would also apply to speech about adults. If someone harshly criticizes — on a blog, or on one’s facebook page, or in a newspaper article posted online — a businessperson, a low-level government official, an academic, or anyone else in a way that is seen as “inten[ded] to … harass” and “humiliate,” is “repeated over time,” and “involves a real or perceived power imbalance between the aggressor or aggressors,” that too would be a crime.

This strikes me as unconstitutionally overbroad (even if limited to speech about schoolchildren), and extraordinarily vague. What counts as a “perceived power imbalance”? Given the context from which the definition of “bullying” came — behavior by students — the “power” may involve social influence and not just economic or governmental power (since alleged student bullies don’t generally have such power) or physical power. If the target of the speech is disliked enough, and the speaker popular enough, does that make otherwise permitted speech into a crime? And of course what qualifies as “ordinary teasing, horseplay, argument, or peer conflict”?

Such phrases might be constitutional when applied to academic discipline, though even there the vagueness doctrine would apply in some measure. But I think they are far from being precise enough to form the basis for criminal punishment, especially given the absence of any legal tradition of using the terms and clarifying them in the course of using them.

So this is a dangerous and deeply unsound proposal, which I hope Del. Keam’s colleagues block. Thanks to Hans Bader for the pointer.

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