For some reason, a handful of Democratic New York State senators think that the First Amendment should be treated “not as a right but as a privilege”, implying that the right to free speech should essentially be revocable to prevent “abuses” of free speech including “flaming” (sending angry, rude, or obscene messages to people online) and other forms of “cyberbullying”. I only wish I was kidding.
The report in question, “Cyberbullying: A Report on Bullying in a Digital Age“, generally indicates that NY State Senators Jeff Klein, Diane Savino, David Carlucci, and David Valesky want NY citizens to be criminally prosecuted for cyberbulling, where they define cyberbullying as a plethora of allegedly offensive acts on the Internet. Hilariously, the Senators include “trolling” (posting deceptive information to trick or provoke people online) and “exclusion” (“intentionally and cruelly excluding someone from an online group”) as part of their definition of cyberbullying. Thus, in a sense, the Senators seem to imply that they want to not only criminally prosecute harassment and deceptive tricks posted online, but they also want to punish people for not allowing NY citizens to join their online clubs. The Senators quite scarily conclude:
The perceived protections of free speech are exactly what enable harmful speech and cruel behavior on the Internet. It is the notion that people can post anything they want, regardless of the harm it might cause another person that has perpetuated, if not created, this cyberbullying culture. But ‘hate speech’ that causes material harm to children should have consequences.
As you can probably imagine, I find this absolutely ridiculous.
First of all, the Senators are simply mistaken about the First Amendment. Indeed, the First Amendment is regularly limited by legislation in various ways, but this does not make it some sort of nebulous “privilege” such that hurt feelings justify its abridgement. The last time I checked, hurting someone’s feelings — even in real life — never justified criminal prosecution. Hell, it usually doesn’t justify civil litigation without constituting outright slander or libel. Like it or not, implicit within the text of the First Amendment is the right to be as cruel as one wants, right up to the point of libel or slander.
Moreover, it is patently offensive that these Senators wish to essentially regulate the Internet. As I will (attempt to) argue in a forthcoming note, regulation of the Internet to “protect” children is incredibly stupid and pointless, and a ridiculous attempt to assert US jurisdiction over the Internet generally. The idea that one could be criminally prosecuted for refusing to allow someone to join, say, a guild in a video game, is preposterous. Moreover, the idea that hurt feelings justify criminal prosecution at all is an offensive use of the criminal justice system to prosecute minor crimes, ultimately wasting judicial time and taxpayer resources.
The real solution to cyberbulling isn’t criminal prosecution, it’s education and selective participation. Children should be educated to manage and avoid offensive situations on the Internet. If the child in question can’t handle that, they should not use the Internet. It’s that simple.
Tags: children, cyberbullying, First Amendment, flaming, Free Speech, Internet, New York, New York State, trolling
Ah, the view from the ivory tower…
“..they should not use the Internet.” Problem solved.
Except that they do. And one child posts hurtful things on the Internet about another that are magnified and inflamed to an extent beyond the comprehension of a child.
In the real world, the consequence of children who “can’t handle that” is that other children kill themselves.
Before you offer a “simple” solution, I suggest you start by understanding the problem.
Google until you have a reasonable estimate of the number of children who kill themselves every year.
Google until you find the research that describes the physiological and psychological toll that cyberbullying imposes on children, and the social and economic costs that result.
Then begin your note by describing the human, social and economic costs of those hurtful actions.
Follow that with a detailed narrative describing what led any one of the children who killed themselves to do so.
You shouldn’t have any trouble finding an example, but if you do, let me suggest the story of Kameron Jacobsen, a 14 year old boy who hung himself in his bedroom last January.
http://www.cbsnews.com/stories/2011/09/15/earlyshow/living/parenting/main20106690.shtml
Then feel free to share your simple solution to that problem.
NB. Kameron Jacobsen’s parents share the view that education is the real way to prevent this behavior.
However, the reality is that some will be educated and still behave badly, and many will never be educated at all. There has to be a consequence for behavior.
I think I should probably respond to the above.
As a general matter, harms like that of which you describe do not justify criminal statutes. I entirely agree that cyberbullying is a problem, but the fact that children are committing suicide does not justify imprisoning someone who “cyberbullies” children. This is because, as I infer in the article, if we balance the First Amendment against the desire to punish “cyberbullies,” the First Amendment wins. This is, of course, ignoring the glaring problem that it is nearly impossible to objectively define what “cyberbylling” is without inadvertently prosecuting harmless behavior.
You seem to infer that “bad[]” behavior should always be punished because it causes some sort of harm, but this is not and has never been US law. We allow plenty of maladaptive behaviors — breaches of contract, adverse possession, insulting words that do not constitute slander or libel, etc — that harm society as a whole but are nonetheless justified on other grounds. The idea that US law should punish behavior because other people react to it negatively is a slippery slope indeed — what happens when a book, albeit innocently, allegedly encourages numerous people to attempt to assassinate public figures? Under your logic, the presence of such violent reactions may justify creating a criminal statute against the publication and distribution of such a book.
I agree with you that the problem is egregious, I simply don’t agree that criminal law is necessary. The US is a country where people have the right to offend each other because we value the right of a citizen to speak his or her mind over the listener’s right to not be offended.