The Volokh Conspiracy
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N.Y. Senate Bill 2318, just unanimously passed by the state Senate this week, would make it a crime for any person (adult or minor) to "knowingly engage in a repeated course of cyberbullying of a minor." The new provision would become § 12-a of the New York Education Law, and § 11 of the Law defines "cyberbullying" as "harassment or bullying" "through any form of electronic communication," and defines "harassment or bullying" in turn as
the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying, that
(a) has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional or physical well-being; or
(b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety; or
(c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student; or
(d) occurs off school property and creates or would foreseeably create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property.
Acts of harassment and bullying shall include, but not be limited to, those acts based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex. For the purposes of this definition the term "threats, intimidation or abuse" shall include verbal and non-verbal actions.
What will this cover? (The definition applies for purposes of all of article II of the Education Law, which would include the new 12-a.)
[1.] A 16-year-old girl is cheated on by her 17-year-old boyfriend. She's angry, so she sends several e-mails to her girlfriends disclosing this and calling him names. One of them forwards it to someone who then forwards it to the ex-boyfriend. The boyfriend feels humiliated. That's a crime on the girls' part: She engaged in "repeated" "verbal" "abuse" using "any form of electronic communication," and this "would reasonably be expected to cause … emotional harm" to the ex-boyfriend, and makes him feel like school is a "hostile environment" (since everyone now knows his misconduct). The girl is a criminal.
[2.] If you think the ex-boyfriend just wouldn't reasonably be "emotionally harm[ed]" by being publicly labeled as a cheater, modify this by imagining that the girl got gonorrhea from the ex-boyfriend, and tells that to her girlfriends, accompanied by insults ("verbal" "abuse") of the boyfriend. Surely that would reasonably be expected to cause emotional harm to many an ex-boyfriend.
[3.] A popular local blogger harshly condemns an under-18-year-old accused of crime, calling him a thug or other words that are viewed as "verbal abuse." The blogger knows that opinion among high schoolers about the accused criminal is sharply divided (perhaps on ethnic, racial, or religious lines), with some people stridently defending him and others condemning him. The article is foreseeably read on school property, as students pull it up on their phones or computers. The article also foreseeably leads some students to again condemning the accused criminal, and others to defend it; foreseeably, a fight breaks out, or threatens to break out, which means the article "foreseeably create[d] a risk of substantial disruption within the school environment." The blogger is a criminal.
[4.] An under-18-year-old high school student becomes a nationally known activist, for instance for gun control or transgender rights or some such. People repeatedly mock his arguments online, and condemn his as an idiot, which a prosecutor thinks is "verbal abuse" and "would reasonably be expected to cause … emotional harm" to him. The people can be prosecuted, and will be convicted if the jury agrees with the prosecutor.
[5.] One of those online mockers is a classmate of the activist. The online mockery foreseeably causes a classmate to get angry at him at school, and threaten a fight or some such, which shows "a risk of substantial disruption within the school environment." The mocker is a criminal.
Now some such speech by students, if it's vulgar or disruptive, can be restricted by school authorities, using the threat of administrative discipline. It's possible that even off-campus speech by students can lead to discipline if it creates disruption on campus; there's been a hot debate in lower courts about whether the school's administrative discipline powers extend to students' behavior 24/7, so long as it causes harm on campus. But the premise of the cases that authorize such discipline (such as Tinker v. Des Moines Indep. School Dist. (1969)) is precisely that the government is acting as educator, simply imposing disciplinary sanctions, rather than as sovereign, threatening people with jail. This bill slips down the slope all the way to outright criminalizing the speech.
I understand the desire to protect minors, including older teenagers, from insults. Humans are social animals, and the good opinion of those around us matters a lot to us; seeing evidence that people think ill of us can be devastating. But I don't think that can justify suppressing the speech that I describe above, under vague and potentially very broad standards such as "verbal" "abuse," "risk of substantial disruption," or "emotional harm."
Nor can we rely on prosecutorial discretion when it comes to such broad and vague speech restrictions: As the Court has held, "[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly." And that is especially so given the inevitable politics behind many such disputes: Is the ex-boyfriend's family connected to city government or the police department or the prosecutor's office? Do people think the ex-girlfriend is a slut? Have prominent national figures argued that the accused criminal is being railroaded? Does the prosecutor or his constituency sympathize with the activist's idoelogy?
Thanks to Eric Turkewitz (New York Personal Injury Attorney Law Blog) for catching this, and Scott Greenfield (Simple Justice) and Techdirt (Tim Cushing) for publicizing this.