Archive | “Bullying” Bans

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,” [...]

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The Crime of “Annoy[ing]” Local Governments Through “Offensively Repetitious” Threats of Litigation

From Tennessee House Bill 540, which has been recommended for passage by the House Local Government Committee:

A person commits an offense who intentionally, without or prior to the filing of a [lawsuit] … communicates, in writing or by electronic communication, with a local government unit or local public servant in an offensively repetitious manner with the intent to influence, persuade, or induce the local government unit or local public servant to terminate, halt or cease a particular policy, practice, action or custom and the person:

(1) (A) Intends the communication to be a threat of initiating legal action against the local government unit or local public servant challenging the particular policy, practice, action or custom, and a reasonable person would perceive the communication to be a threat of initiating legal action; or

(B) Makes a threat within the communication to initiate legal action against the local government unit or local public servant challenging the policy, practice, action or custom; and

(2) Makes the communication knowing that it will alarm or annoy the local government unit or local public servant.

The proposal was apparently prompted by a desire to restrict Establishment Clause challenges — that’s what the rest of the bill is about — but this section would cover all threats of litigation.

The proposal is clearly an unconstitutional content-based restriction on freedom of speech to government officials, and on the right to petition the government for redress of grievances. Petitions need not be just “please be so kind as,” but may also include “or else we’ll petition another branch of government — the courts — to vindicate our rights.” And neither the Free Speech Clause or Petition Clause excludes speech that’s annoying or said “in an offensively repetitious manner.” Narrowly crafted restrictions on certain manners of communications, [...]

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Would New Jersey Bill Criminalize the Speech in Hustler v. Falwell?

I’m sure the legislatures aren’t thinking of the bill this way, but it might well be what this bill — which cleared one New Jersey Senate committee by a 5-0 vote this summer, and which unanimously passed another committee today — would do. The bill provides, in relevant part,

1. a. A person commits the crime of cyber-harassment if, while making a communication in an online capacity via any electronic device or through a social networking site and with the purpose to harass another, the person …

(2) sends, posts, comments, requests, suggests, or proposes any lewd, indecent, or obscene material to or about a person ….

If Larry Flynt had posted his nasty attack on Jerry Falwell online in New Jersey — assuming the Internet and this law were around back then — he would likely have been committing a crime. He might have had “the purpose to harass” Jerry Falwell, whatever that precisely means. The scurrilous parody said “about” Falwell, which talked about Falwell supposedly having sex with his mother, may well have been “indecent,” again whatever that precisely means.

Seems pretty certainly unconstitutional to me. For an example of a similar Washington law being used to try to uncover the identity of someone who published a YouTube cartoon satire of City of Renton police officers — an attempt that was premised on the theory that such publication was indeed criminal harassment, because of its supposedly lewd, indecent, or obscene references to sexual goings-on among the officers. (The matter was ultimately dropped after a public outcry.) [...]

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The Colorado Recalls Explained

Yesterday voters in Colorado recalled two State Senators. One result was not a surprise, and the other is a shock. Of course the votes are Second Amendment victories for the right to arms, but more fundamentally, they are Fourteenth Amendment victories for Due Process of Law.

Former State Senate President John Morse represented Colorado Springs, plus the somewhat hipster mountain community of Manitou Springs. While El Paso County is strongly Republican, the interior city of Colorado Springs has been center/center-left for years. Senate District 11 was carved to make the election of a Democrat possible, and it worked. Voter registration in SD 11 is about a third, a third, and a third among Democrats, Republicans, and Independents, with Democrats having the largest third and Republicans the smallest. Morse barely won re-election in 2010, and might have lost if not for the presence of a Libertarian on the ballot.

As the conventional wisdom expected, voter turn-out was relatively low. Morse was recalled by  51-49%. The conventional wisdom of Colorado politics had been that Morse would probably lose, but that the election would be tight, and there was a chance that he might win. As things turned out, Republicans turned out greatly in excess of their registration percentage, and that was probably the difference.

Both sides had hard-working GOTV programs, but apparently the Democrats did not succeed in convincing enough of their less-enthusiastic voters to vote. This is in contrast to 2012, when Obama won the district by 21%.

Pueblo, the largest city in southern Colorado, delivered the result that stunned almost everyone. For more than a century, Pueblo has been a Colorado stronghold of working-class union Democrats. Like most of southern Colorado, it has a large Hispanic population. Obama won Senate District 3 by 19% in 2012. In 2010, Democratic Senator [...]

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Crime to “Disparag[e]” an Under-18-Year-Old “With Intent to Harass”?

That’s what Pennsylvania HB1163, which passed the Judiciary Committee by a 25-0 vote in May, would provide:

(1) A person commits the crime of cyber harassment of a child if, by means of an electronic communication and with intent to harass a child, he repeatedly communicates or, on at least one occasion, makes available to a user of an electronic social media network or service, information about a child under 18 years of age which, whether true or not, includes any of the following:

(i) A statement or opinion about the child’s sexuality or sexual activity.

(ii) A disparaging statement or opinion about the child’s physical characteristics, mental or physical health or condition.

(iii) A threat of unlawful harm.

(2) Nothing under this subsection shall prohibit a communication made for medical, educational or other legitimate purposes, if the actor is an adult….

(f) Definitions. —

“Disparaging statements or opinions.” A statement or opinion which significantly ridicules, demeans or in the context or circumstances, would cause serious embarrassment to the victim….

“Electronic social media network or service.” A form of electronic communication such as Internet websites for social networking through which a user creates an online community to share information, an idea, a personal message and other content through print, photograph and video….

“Repeatedly communicates.” To convey more than one message over a period of time.

So the following would be crimes under this law, if a jury found that the posting was done “with intent to harass”:

  1. A 17-year-old girl posting on Facebook that she broke up with her boyfriend because he cheated on her.
  2. A 13-year-old posting on Facebook that the person bullying him is sociopathic (an opinion about the child’s mental condition), if that can be said to “significantly … demean[]” the bully.
  3. Someone posting the same
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NY appellate court rules 5-0 against Bloomberg soda ban

The First Department of the Appellate Division of the New York Supreme Court has ruled 5-0 against NYC Mayor Michael Bloomberg’s soda ban, in the case of  In re New York Statewide Coalition of Hispanic Chambers of Commerce, et al. v. The New York City Department of Health and Mental Hygiene, et al. (The Hispanic Chambers opinion begins on page 22, following two other opinions released the same day.)

In New York State, the trial courts of general jurisdiction are the Supreme Court. The intermediate courts of appeal are the Appellate Division, which are divided into four geographic Departments, similar to the U.S. Circuit Courts of Appeal. The highest court is the Court of Appeals. Thus, Mayor Bloomberg has the option of trying to bring the case to the Court of Appeals.

The Appellate Division’s decision is quite straightforward: “[T]he Board [of Health] did not bring any scientific or health expertise to bear in creating the Portion Cap Rule. Indeed, the rule was drafted, written and proposed by the Office of the Mayor and submitted to the Board, which enacted it without substantive changes.” If the Board’s ban on the sale of sodas larger than 16 ounces were actually a health rule (similar, for example, to a ban on the sale of infected meat), there would not be so many exemptions for certain types of vendors.

The Appellate Division applied the four-part separation of powers test from Boreali v Axelrod, 71 NY2d 1 (1989). The Appellate Division summarized the four Boreali factors:

First, Boreali found the PHC [Public Health Council] had engaged in the balancing of competing concerns of public health and economic costs, “acting solely on [its] own ideas of sound public policy”. Second, the PHC did not engage in the “interstitial” rule making typical of administrative

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Court Orders Father to Stop Publicizing Complaints About the Guardian Ad Litem in His Child Custody Case

Fortunately, the New Mexico Court of Appeals has reversed this order — at least unless and until the trial court finds that the material was libelous, something the trial court had not so far done — in Kimbrell v. Kimbrell (N.M. Ct. App. Mar. 13, 2013, though just put on Westlaw in the last day or two) (some paragraph breaks added):

At the time divorce proceedings commenced, Mother and Father had four children (the Children), including Daughter. A year into the divorce case, at Father’s request, the district court appointed the GAL to represent the interests of the Children. Shortly thereafter, the GAL [Guardian Ad Litem] issued her report and recommendations in which she advised reinstating contact between Mother and the Children, as well as placing one of the Children with Mother. With some modifications, the court largely adopted the GAL’s recommendations.

Thereafter, Father became displeased with the GAL and the court’s order. During the following three years of highly contentious custody proceedings, Father made five attempts to have the GAL removed. Each request was denied by the district court. Father also filed two lawsuits against the GAL, one in federal court in June 2009, and another shortly thereafter in state district court. In addition, Father filed complaints against the GAL with the Disciplinary Board of the New Mexico Supreme Court. Father’s lawsuits were subsequently dismissed. …

In May 2010, the district court denied Father’s fifth motion to remove the GAL. In its written order of denial, the court found that (1) Father’s motion to remove the GAL raised issues previously addressed by the court; (2) the motion was an attack on the GAL’s ability to represent the Children; (3) Father inappropriately viewed the GAL as an opponent; (4) Father’s continuing attacks on the GAL were becoming problematic for the

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Removing High School Student from Class for Saying “I Don’t Accept Gays” Violates First Amendment

So holds yesterday’s decision in Glowacki v. Howell Public School Dist. (E.D. Mich. June 19, 2013):

Members of the Howell High School Gay Straight Alliance wanted to participate in a national campaign aimed at raising awareness of the bullying of gay, lesbian, bisexual, and transgendered youth on October 20, 2010. As such, the student group submitted a flyer its members hoped to post around the high school with information about Anti-Bullying Day to Principal Aaron Moran. The flyer, which was ultimately approved and placed throughout the school, identified October 20, 2010 as Anti-Bullying Day and asked students and teachers to wear the color purple in recognition of the day. Other than approving the posting of the flyer, the school did not sanction activities or events in connection with Anti-Bullying Day.

[Defendant Jay McDowell, one of plaintiff Daniel Glowacki’s teachers] wore a purple … t-shirt to school on Anti-Bullying Day. Before proceeding with his lesson plans that day, McDowell engaged his students in a brief discussion about bullying and showed a short video about an individual who committed suicide as a result of being bullied due to his sexual orientation. This presentation caused no problems until McDowell’s sixth hour class.

As students began filtering into McDowell’s economics class, McDowell noticed a female student wearing a Confederate flag belt buckle and asked that she remove it. Daniel, who arrived to class a “little late,” witnessed this interaction. From this point forward, the events in question become muddled as the participants and witnesses have different versions.

During his deposition, Daniel testified that after the student removed her belt buckle, class began and McDowell “started to explain about … his purple shirt, what it represented and what it meant.” At this time, Daniel “calmly raised [his] hand” and asked McDowell why the female

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Crime to Post “Indecent” Speech “About a Person” with “Purpose to Harass”?

The bill is what New Jersey Senate Bill 2469, introduced by Senator Donald Norcross (who is the Assistant Majority Leader) and Senator Nicholas Sacco, would provide:

A person commits the crime of cyber-harassment if, while making a communication in an online capacity via any electronic device or through a social networking site and with the purpose to harass another, the person …

(2) sends, posts, comments, requests, suggests, or proposes any lewd, indecent, or obscene material to or about a person ….

Now recall that “indecent … material” is a broader category than just unprotected obscenity, and could include vulgarities and sexual innuendo; see FCC v. Pacifica Foundation (1978) (the “Seven Dirty Words” case), which interpreted a ban on “obscene, indecent, or profane language”:

The words “obscene, indecent, or profane” are written in the disjunctive, implying that each has a separate meaning. Prurient appeal is an element of the obscene, but the normal definition of “indecent” merely refers to nonconformance with accepted standards of morality.

It seems quite likely that courts would likewise interpret “indecent” in “lewd, indecent, or obscene material” as similarly referring to more than just hard-core pornography, so long as the words “[do not conform] with accepted standards of morality.” And “purpose to harass” seems to be treated by New Jersey courts as simply meaning, purpose “to annoy or alarm,” as the New Jersey pattern jury instruction for criminal harassment cases, NJ-JICRIM 2C:33-4, states (“the defendant’s purpose was to harass (name of victim), in other words, to annoy or alarm (name of victim)”).

So if Larry Flynt had posted online the infamous Hustler magazine attack on Jerry Falwell (see Hustler Magazine, Inc. v. Falwell (1988)), and this law was in effect, the material might well lead to a criminal conviction: A jury might well find [...]

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Ban on Behavior that “Emotionally Abuse[s]” or “Is Likely to Create an … Offensive Environment” and “Which Serves No Legitimate Purpose” + Liability for Parents Who “Allow[]” Such Speech

That’s what a new ordinance from Monona, Wisconsin provides (as posted on the amusingly named

(a) … Bullying is a form of harassment and is defined as an intentional course of conduct which is reasonably likely to intimidate, emotionally abuse, slander, threaten or intimidate another person and which serves no legitimate purpose.

“Course of conduct” is defined as a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.

“Harassment” is defined as [any intentional course of conduct] whether verbal, physical, written, or by means of any mode of communication … which is likely to create an intimidating, hostile or offensive environment, and which serves no legitimate purpose….

(b) … It shall be unlawful for any person to engage in any bullying or harassment of a person or induce another person to engage in such bullying or harassment.

(c) … No person shall retaliate against any person who reports any conduct which is prohibited by this section.

(d) … This section shall not be construed to apply to any constitutionally protected activity or speech.

(e) … It shall be unlawful for any custodial parent or guardian of any unemancipated person under eighteen (18) years of age to allow or permit such person to violate the provisions of subsection (b) above. The fact that prior to the present offense a parent, guardian or custodian was informed in writing by a law enforcement officer of a separate violation of subsection (b) by the same minor occurring within ninety (90) days prior to the present offense shall constitute a rebuttable presumption that such parent, guardian or custodian allowed or permitted the present violation.

The penalty is a fine of $50 to $1000 (plus “the costs of prosecution”) for a first offense, [...]

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Minnesota Bill to Ban K-12 Speech That Denies Fellow Students a “Supportive Environment”

That’s H.F. No. 826, which requires schools — including private schools that get any “public funds or other public resources” — to ban, among other things, “bullying” at school, defined as

use of one or a series of words, images, or actions, transmitted directly or indirectly between individuals or through technology, that a reasonable person knows or should know, under the circumstances, will have the effect of interfering with the ability of an individual, including a student who observes the conduct, to participate in a safe and supportive learning environment. Examples of bullying may include, but are not limited to, conduct that:

  1. places an individual in reasonable fear of harm to person or property, including through intimidation;
  2. has a detrimental effect on the physical, social, or emotional health of a student;
  3. interferes with a student’s educational performance or ability to participate in educational opportunities;
  4. encourages the deliberate exclusion of a student from a school service, activity, or privilege;
  5. creates or exacerbates a real or perceived imbalance of power between students;
  6. violates the reasonable expectation of privacy of one or more individuals; or
  7. relates to the actual or perceived race, ethnicity, color, creed, religion, national origin, immigration status, sex, age, marital status, familial status, socioeconomic status, physical appearance, sexual orientation, gender identity and expression, academic status, disability, or status with regard to public assistance, age, or any additional characteristic defined in chapter 363A of a person or of a person with whom that person associates, but the conduct does not rise to the level of harassment.

First, what does interfering with “the ability of an individual … to participate in a … supportive learning environment” mean, exactly? Say that students are talking over lunch about how a classmate committed a crime, cheated, said racist things, treated his girlfriend cruelly, or [...]

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A New Civility Standard

Prof. Brian Leiter is apparently grossly offended that an attorney sent him an email stating “You’re a ‘Law and ______’ Professor, not a lawyer.  How would you know how to ‘think like a lawyer’?”  Leiter not only sent his correspondent a pointed lengthy response criticizing his “impertinent,” “juvenile,” and “insolent” email,  but added at the end that “I will be sure to send a copy of this entire correspondence to the name partners of your firm,” suggesting that the attorney should be punished, or at least formally reprimanded.

Of course, being a philosopher who values reason and consistency, I’m sure Prof. Leiter would seek to have the same standard of civility applied to everyone, including himself.  And writing “how would you know how to ‘think like a lawyer?'” in private correspondence, by a rather anonymous chap no less, seems relatively tame compared to some of what gets stated publicly in the blogosphere by prominent individuals, such as calling one’s professional colleagues “morally deranged,” “crazies“, “instaignorance”, and so forth and so on–the kind of statements Leiter, certainly henceforth, would never, ever make.  But if he does, you know whom to contact to complain about “impertinent,” “insolent,” and “juvenile” postings.

Of course, unlike young attorneys, tenured law professors are largely immune from sanctions when engaging in speech related to public issues.  But that, of course, wouldn’t stop any upstanding professor from voluntarily waiving such protections and allowing himself to be penalized for the same kind of conduct he would want others punished for, now would it?  Thanks to Brian’s standard-setting, we can now look forward to a much more civil blogosphere.

UPDATE: Here is Leiter’s response, in full:

Meanwhile, the poster boy for the Dunning-Kruger Effect, David Bernstein, thinks this is all about civility and manners as opposed to

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Crime to Create a “Hostile Environment” That “Substantially Interferes” with Person’s “Psychological Well-Being” Based on Race, Religion, Sex, Etc.?

That’s what this New Mexico bill would provide:


A. Bullying consists of a pattern of intentional conduct, including physical, verbal, written or electronic communication, that creates a hostile environment and substantially interferes with another person’s physical or psychological well-being and that is:

(1) motivated by an actual or perceived personal characteristic, including race, national origin, marital status, sex, sexual orientation, gender identity, religion, ancestry, physical attribute, socioeconomic status, familial status or a physical or mental ability or disability; or

(2) threatening or seriously intimidating.

B. Whoever commits bullying is guilty of a petty misdemeanor. Whoever commits bullying that results in bodily harm or substantial emotional distress is guilty of a misdemeanor.

Note that this is not limited to speech said to a person, but could cover speech about a person — for instance, harsh attacks on a politician, community leader, academic, journalist, and the like based on the person’s religion, wealth, sexual orientation, and the like. And though the bill is being marketed as protecting children, it is not at all limited to speech about children. Indeed, the speech is not on its face limited to speech about any particular individual, and might cover offensive speech about groups as well, though it would be bad enough even if it were limited to speech about a particular person.

Such restrictions are troubling enough (and, I’ve long argued, unconstitutional when not limited to unwanted speech said to the person), when it comes to “hostile work environment harassment” law. But this bill would broaden this to cover speech everywhere, and make it a crime as well. [...]

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Now There’s a Speech Restriction for You

A new Vernon County, Wisconsin ordinance provides a $50 to $500 fine — or, if the fine isn’t paid, up to 30 days in jail — for

send[ing] information to another person by electronic means with the intent to annoy, offend, demean, ridicule, degrade, belittle, disparage, or humiliate any person

if the information “serves no legitimate purpose,” whatever that means. (A city ordinance in the Vernon County seat, Viroqua provides the same, but requires “repeatedly send[ing] information”; the Vernon County ordinance omits the “repeatedly.”)

This isn’t limited to offensive e-mail sent to a particular person that’s intended to offend that person. If you post a message about me on your Facebook page with the intent to annoy, offend, demean, ridicule, degrade, belittle, disparage, or humiliate me, that would be covered — if it “serves no legitimate purpose” — since you’re sending information “to another person” (any reader of the Facebook page) intended to annoy etc. “any person” (me). Indeed, a lawyer who spoke in favor of the law at the hearing at which it was enacted specifically stressed that the law would cover Facebook.

Likewise, if you just send an e-mail to a friend ridiculing or disparaging me, that personal e-mail is a crime, if it “serves no legitimate purpose.” What constitutes a “legitimate purpose” is never explained. Is venting about a friend who you think has betrayed you a “legitimate purpose”? Is telling a friend about an enemy’s faux pas? What about posting Mohammed cartoons, or a video of a burning Koran? Neither the ordinance nor, to my knowledge, Wisconsin caselaw defines what “legitimate purpose” would mean in this context.

Vernon County is in the Western District of Wisconsin, the district in which Madison, Wisconsin is located. I would think that challenging the ordinance would be an interesting [...]

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Crime for Student to Post Image of Teacher (or Principal) “With Intent to … Torment”

That’s what’s provided by N.C. Gen. Stat. § 14-458.2, which will go into effect in North Carolina this coming Dec. 1. The law also bans discussing school employees’ sex lives online “with intent to … torment,” posting other “personal … information” about them with such an intent, and posting “an unauthorized copy of any data pertaining to a school employee” with such an intent:

(b) Except as otherwise made unlawful by this Article, it shall be unlawful for any student to use a computer or computer network to do any of the following:

(1) With the intent to intimidate or torment a school employee, do any of the following:

a. Build a fake profile or Web site.

b. Post or encourage others to post on the Internet private, personal, or sexual information pertaining to a school employee.

c. Post a real or doctored image of the school employee on the Internet….

(3) Copy and disseminate, or cause to be made, an unauthorized copy of any data pertaining to a school employee for the purpose of intimidating or tormenting that school employee (in any form, including, but not limited to, any printed or electronic form of computer data, computer programs, or computer software residing in, communicated by, or produced by a computer or computer network)….

(c) Any student who violates this section is guilty of cyber-bullying a school employee, which offense is punishable as a Class 2 misdemeanor.

What “intent to … torment” exactly means is hard to say, because the term isn’t defined anywhere . The dictionary doesn’t help much; does the statute require an intent “to afflict with great bodily or mental suffering,” an intent “to worry or annoy excessively,” or an intent “to throw into commotion; stir up; disturb”?

Say a student learns that the principal whom [...]

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