Archive | “Bullying” Bans

It’s Now a Crime in Louisiana to Electronically Communicate With “Intent to … Abuse [or] Torment” a Minor

A newly enacted statute, Rev. Stat. 14:40.7 provides, in relevant part:

A. Cyberbullying is the transmission of any electronic textual, visual, written, or oral communication with the malicious and willful intent to coerce, abuse, torment, or intimidate a person under the age of eighteen.

B… (2) “Electronic textual, visual, written, or oral communication” means any communication of any kind made through the use of a computer online service, Internet service, or any other means of electronic communication, including but not limited to a local bulletin board service, Internet chat room, electronic mail, or online messaging service….

F. The provisions of this Section shall not be construed to prohibit or restrict religious free speech pursuant to Article I, Section 18 of the Constitution of Louisiana.

The penalty is up to 6 months’ in jail (or an up to $500 fine or both), except that under-17-year-old offenders are routed to the juvenile justice system.

This is not bad as the earlier version, which also applied to speech intended to “embarrass, or cause emotional distress.” But it’s still pretty bad, especially because it leaves unclear what exactly is a “malicious and willful intent to … abuse [or] torment.”

Would publishing an online editorial — or a blog post — condemning an underage criminal for his crimes qualify as “malicious and willful intent to … abuse [or] torment”? Or would it not be “malicious” because it would be justified by righteous indignation (in which case I take it courts would have to decide what indignation is righteous and what is not)? Note that the law isn’t limited to messages sent only to the target, but includes speech published to the world at large as well.

Would sending a message castigating an ex-lover for cheating (assuming both the ex-lover and the sender are 17) [...]

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Proposed Louisiana Law Would Ban Any Online Speech Intended to “Embarrass, or Cause Emotional Distress” to an Under-17-Year-Old

The bill (HB1259) — which passed the state House of Representatives by a 78-16 vote , and has cleared the state Senate Committee on Judiciary C — would make it a misdemeanor to transmit any Internet communication or other computer communication “with the intent to coerce, abuse, torment, intimidate, harass, embarrass, or cause emotional distress to a person under the age of seventeen.” This applies without regard to whether the message is communicated to the person, to some other individuals, or to the public at large. So under the law, all of these would likely be criminals (though, under a recent amendment the adults could be jailed for up to a year, while the minors could be jailed for up to six months):

  • A girl who sends her under-17-year-old boyfriend an e-mail telling him what a schmuck he is for having cheated on her, and hoping that he feels ashamed of himself.
  • A blogger, or a newspaper columnist, or an online commentator, who publishes something condemning an under-17-year-old criminal, hoping the criminal feels embarrassed and ashamed as a result.
  • A public or private school official e-mailing the parents of an under-17-year-old student a message about the student’s misbehavior, hoping that the student will feel embarrassed and change his ways.
  • Parents e-mailing their under-17-year-old children telling the children that they should feel ashamed of some misbehavior.
  • A professional or amateur music critic or sports reporter writing a harsh review of an under-17-year-old performer’s or athlete’s behavior, hoping that the review will embarrass the performer or athlete into behaving more ethically, professionally, or competently.

If a legislature thinks there’s a particular class of highly dangerous speech to or about children that needs to be criminalized, it should identify that class, and we can discuss whether a ban on that class of speech [...]

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Louisiana Bill Would Outlaw Insulting an Under-17-Year-Old By E-Mail

The Louisiana House bill — passed by a 12-0 vote in committee, and scheduled for floor debate this Wednesday — would make it a crime (up to 6 months in jail for the first offense, up to a year for the second, and up to three years for the third), to transmit by “any … means of electronic communication”

any electronic textual, visual, written, or oral communication with the intent to coerce, abuse, torment, intimidate, frighten, harass, embarrass, or cause emotional distress to a person under the age of seventeen.

So if a 16-year-old e-mails her boyfriend telling him that he’s a scumbag for cheating on her, and that he should feel ashamed of himself, she would be a criminal: She would be transmitting a written communication with the intent to cause emotional distress to a person under the age of seventeen.

If a newspaper or blog publishes an article harshly condemning a 16-year-old criminal, its writers and editors would also be criminals: They would be transmitting a written electronic communication (assuming the newspaper’s content is available online), and probably done so with the intent to embarrass or cause emotional distress to the 16-year-old.

If someone writes a newspaper article or blog post seeking to “scare kids straight,” and away from sex, drugs, gangs, or what have you by frightening them by the possible consequences of their conduct, they would probably be criminals: They would be transmitting a written communication with the intent to frighten persons under the age of seventeen.

Naturally, some people might try to defend this on the grounds that prosecutors won’t apply the statute as broadly as it’s written, but will instead focus just on “extreme” cyberbullying; but I think Chief Justice Roberts’ majority opinion in last week’s United States v. Stevens is instructive here: [...]

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A Crime to Repeatedly Insult a Minor

That’s what draft Suffolk County Resolution No. 1390-2010 would do (some line breaks added):

“CYBER-BULLYING” shall mean

[(a)] engaging in a course of conduct or repeatedly committing acts of abusive behavior over a period of time

[(b)] by communicating or causing a communication to be sent by mechanical or electronic means, posting statements on the internet or through a computer network.

[(c)] Acts of abusive behavior shall include, but not be limited to, taunting; threatening; intimidating; insulting; tormenting; humiliating; disseminating embarrassing or sexually explicit photographs, either actual or modified, of a minor; disseminating the private, personal or sexual information, either factual or false, of a minor; or sending hate mail….

No person shall engage in cyber-bullying against a minor [i.e., someone under the age of 18] in the County of Suffolk….

Any person who knowingly violates the provisions of this article shall be guilty of … [a] misdemeanor punishable by a fine of up to $1,000 and/or up to one year’s imprisonment.

So let’s see:

1. You post several items on your Web site about how some juvenile criminal is an awful person. You’re guilty of “repeatedly committing acts of abusive behavior” — namely, “insulting” ” — “against a minor” by “posting statements on the internet.”

2. A 17-year-old finds that her 17-year-old boyfriend is cheating on her. She sends him two e-mails calling him a “lying, cheating scum.” She’s guilty of repeatedly “insulting” the other person, and perhaps “sending hate mail.”

3. A 17-year-old e-mails her friend several times about her having had sex with a 17-year-old boy. She is guilty of “disseminating the private … sexual information” (even though “factual”) “of a minor” — the fact that the boy had had sex with her.

4. A 17-year-old reveals to several of her friends, in separate e-mails, that her [...]

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“Cyberbullying Bill Gets Chilly Reception”

Some folks say that Congress will do anything that resonates with the public, and that Congress doesn’t care about the Constitution — especially if the Constitution gets in the way of “protecting the children.” If you think that, you should read this report about Wednesday’s House Judiciary subcommittee hearing on the proposed Megan Meier Cyberbullying Prevention Act that Eugene blogged about a few months ago. A taste:

  Proposed legislation demanding up to two years in prison for electronic speech meant to “coerce, intimidate, harass or cause substantial emotional distress to a person” was met with little enthusiasm by a House subcommittee on Wednesday.
  Rep. Linda Sanchez (D-California) lobbied fellow lawmakers of a House Judiciary subcommittee to back her proposed legislation dubbed the “Megan Meier Cyberbullying Prevention Act.” In its first congressional hearing, Sanchez said the proposal was designed to target the cyberbullying that led to the 2006 suicide of the 13-year-old Meier of Missouri.
  “Bullying has gone electronic,” Sanchez testified before the Subcommitttee on Crime, Terrorism and Homeland Security. “This literally means kids can be bullies at any hour of the day or the night, or even in the victims’ own home.”
  From the outset of the 90-minute hearing, however, committee members from the left and the right said they thought the measure was an unconstitutional breach of free speech. “We need to be extremely careful before heading down this path,” Bobby Scott, a Democrat from Virginia and the committee’s chairman, said during the hearing’s opening moment.
  Rep. Louie Gohmert (R-Texas) said the legislation “appears to be another chapter of over-criminalization.” He quipped, however, that the law could target the “mean-spirited liberals” in the blogosphere that are attacking himself and his family regularly.
  About 30 minutes later, Gohmert said that not all prosecutors would exercise good judgment, that they might

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Rep. Linda Sanchez Defends Proposed Outlawing of Using Blogs, the Web, Etc. To Cause Substantial Emotional Distress Through “Severe, Repeated, and Hostile” Speech:

Last week, I cricitized Rep. Linda Sanchez’s bill that says,

Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both….

[“Communication”] means the electronic transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received; …

[“Electronic means”] means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.

I gave several examples of the kinds of speech the law might turn into a federal felony, but for now let me just give two of them, merged into one:

I try to coerce a politician into voting a particular way, by repeatedly blogging (using a hostile tone) about what a hypocrite / campaign promise breaker / fool / etc. he would be if he voted the other way. Or I repeatedly blog the same after the vote, because I want the politician to feel ashamed and publicly condemned. I am transmitting in interstate commerce a communication with the intent to coerce or substantially distress using electronic means (a blog) “to support severe, repeated, and hostile behavior” — unless, of course, my statements aren’t seen as “severe,” a term that is entirely undefined and unclear.

Others criticized the bill as well.

Yesterday, Rep. Sanchez defended her bill, on the Huffington Post. Check out her response, and see what you think. Here’s what I think:

1. Sanchez’s post nine times mentions the need to protect children (or “young” people). But the proposed [...]

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The Crime of Severe, Repeated, and Hostile Communication with the Intent to Cause Substantial Emotional Distress?

That’s what a proposed federal statute — the Megan Meier Cyberbullying Prevention Act, HR 6123, introduced two weeks ago by Reps. Linda Sanchez (D-CA) and Kenny Hulshof (R-MO) — would create:

Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means [“including email, instant messaging, blogs, websites, telephones, and text messages”] to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.

Wow. So if I harshly criticize Reps. Sanchez and Hulshof (“hostile”) at least twice (“repeated”) in a way that a jury finds “severe,” whatever that exactly means, and if I do that “with the intent to … cause substantial emotional distress,” I could go to prison for up to two years. My criticism could be perfectly accurate. It could be an expression of my opinion, including on political, social, or religious issues. The desire to cause substantial emotional distress could be prompted by the target’s reprehensible actions or political views, and could be coupled with a genuine attempt to persuade the public. Doesn’t matter: My actions would be a crime.

This is clearly unconstitutional. In Hustler v. Falwell, the Supreme Court held that even civil liability for “outrageous” (not just “severe”) behavior that recklessly, knowingly, or purposefully causes “severe emotional distress” (not just “substantial emotional distress”) violates the First Amendment when it’s about a public figure and on a matter of public concern. Many, though not all, lower courts have held the same whenever the statement is on a matter of public concern, even about a private figure.

I would go further and reject the emotional distress tort altogether whenever it’s premised on the content of speech that [...]

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