The Cornell Law School Federalist Society

Posts Tagged ‘New York State’

Sacrificing the First Amendment to catch “Cyberbullies”

Monday, October 10th, 2011

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.

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