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N.Y. Set to Criminalize Much "Verbal" "Abuse" of Under-18-Year-Olds Online

The N.Y. Senate just unanimously passed a bill that would do that.

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.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Liberaltarian||

    "People mock his repeatedly arguments online,"

    If he didn't repeat himself so much, then maybe he wouldn't be mocked.

  • Eugene Volokh||

    Whoops, fixed.

  • damikesc||

    Funny, fascism is always around the Right, yet it is "Progressive" states that pass unbelievably fascist bills like this.

  • Eugene Volokh||

    Just to be clear, the New York Senate is basically evenly split among the parties. I'm sure most elected New York Republicans aren't generally super-conservative, but I also doubt that many of them are particularly "progressive." This is a bipartisan problem.

  • damikesc||

    I see your point, Professor, but I'm not seeing these types of laws out of deep "red" states. You can criticize a lot of laws from a lot of places, but nonsense like this or fining people for "misgendering" others are a rather blatant frontal assault on the First Amendment and I don't see this from states that do not tend to lean heavily Democratic.

    I don't see Texas, for example, passing laws like this.

  • Eugene Volokh||

    North Carolina passed a similarly broad (though not identical) "cyberbullying" ban, which was truck down in State v. Bishop (2016) (a case in which a student of mine filed an amicus brief). I've seen other such laws from other conservative states.

  • TwelveInchPianist||

    Well, then North Carolina and the other "conservative" states are obviously not true red states.

  • GabrielSyme||

    North Carolina did just elect a Dem governor. But like most states (red and blue and purple) I imagine North Carolina leans liberal in urban centers and conservative in rural areas

  • PoxOnBothYourHouses||

    damikesc: "or fining people for "misgendering" others..."

    That's in New York City. The state you make be thinking of is California, where the penalty for those charged with caring for others is imprisonment. There was heated discussion about that on this site (when it was at WaPo).

  • Eidde||

    In other states, what New Yorkers call "Republicans" are called "Democrats."

  • FlameCCT||

    Basically they are Progressives with a D or R.

    In the words of that great philosopher, Forrest Gump:
    Progressive is as Progressive does!

  • Krayt||

    ===Nor can we rely on prosecutorial discretion when it comes to such broad and vague speech restrictions===

    The people who look at marijuana residue on walls, and say it's not evidence of past possession, but is posession in and of itself? Surely you jest!

    The people who asked for an intrusive law to be passsed under Clinton for the emergency of terrorists, then immediately used it against drugs, not even bothering with the sophistry that drugs are akin to terrorism, but looking straight into the camera and saying the law doesn't say "terrorism only"! "Ha ha ha, you fools in Congress, and you idiot citizens who think you live in a democracy!"

    No freaking way!

    These guys would do this?

  • Stephen Lathrop||

    I understand the desire to protect minors, including older teenagers, from insults.

    No, Professor Volokh. You have shown repeatedly that this topic leads your "understanding" to offer empty free speech nostrums that aren't on point. For 2 instances:

    1. Now some such speech by students, if it's vulgar or disruptive, can be restricted by school authorities, using the threat of administrative discipline.

    2. 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."

    Both of those skip past the most important factor driving all this, and making it different than the world your nostrums used to apply to. This isn't about speech. This is about world-wide publishing. None of your examples could have gotten published before the internet. The damage done scales to the target's understanding that this is a published attack.

    You include enough language to make clear you know that, but ignore it in your response. Absent the internet's publishing power, no such law would happen, or did happen. And if something spoken did happen, the harm, and the perception of harm, would have been far less, for the same reasons courts treat (spoken) slander as a lesser offense than (published) libel.

    Until you get out of the habit of referring to published remarks as if they were just speech, you have some catching up to do before claiming you know what's going on.

  • Scarecrow Repair & Chippering||

    So it's ok, even required, to suppress speech if it reaches too many people?

    There's you on the hook, right now, right here, because your insulting speech has been published on the internet.

    Shame, really, for such a silly post to make you a criminal,, but the law's the law.

  • Stephen Lathrop||

    So it's ok, even required, to suppress speech if it reaches too many people?

    You bypassed important points, but still, that enunciates a fundamental principle of libel law.

  • David Nieporent||

    That's not even a principle, let alone a fundamental principle, of libel law.

  • Stephen Lathrop||

    Well, that didn't take long. You're the guy who said, "Published remarks are just speech." Why don't you check that one out with an actual libel expert, and see what you learn? Be sure to include your boldface, it's useful context.

  • David Nieporent||

    Not sure what your point is; are you trying to allude to the distinction between written speech and oral speech in defamation law? The old libel/slander issue? I mean, there are some minor technical differences, depending on what state you're in, but it's mostly unimportant (in some states there's no distinction, and in many states it's not even settled which category broadcast or online speech would fall into), and it's in no way relevant to anything I wrote.

    I don't think you, someone who has repeatedly shown you don't grasp the whole NYT v. Sullivan line of cases, are really in a position to talk about "actual libel experts."

  • DjDiverDan||

    Alright, Stephen Lathrop, you now have me thoroughly confused. As I recall, the First Amendment guaranties BOTH free speech and a free press. But, if I understand your comment correctly, when the press becomes TOO effective - i.e., "world-wide publishing", that, in your view justifies greater restrictions on speech?

    And when you claim that "[T]he damage done scales to the target's understanding that this is a published attack," can we clear about just exactly what "damage" you are speaking of? Because it seems to me that the "damage" is little more than hurt feelings. Call it what you will, embarrassment, humiliation, reputational damage, it all amounts to the same thing - hurt feelings. And even putting a fancy-sounding label on it, calling it cyber-bullying, does not change its essential character - it is still no more and no less than someone got their feelings hurt. I don't recall a "hurt feelings" exception to the First Amendment in any of the case law I've ever read. Did I miss that? And while civil law, the common law of defamation, does offer some limited protections from hurt feelings, but ONLY in certain limited circumstances (i.e., false allegations of FACT, actual damages, etc.), with no cause of action for statements of mere opinion, and an absolute defense for true statements, criminalizing mere name calling, even really nasty name-calling, strikes me as highly problematic under the First Amendment.

  • Stephen Lathrop||

    Dan, in many, many instances the damage includes being driven from the school. Or sometimes suicide.

    This nation is loaded with private schools which are basically being operated as refuges for bullying victims. Mostly, those schools are educationally inferior to the schools the bullying victims get driven out of—sometimes after compiling superior academic records, which get sacrificed in the process.

    And yeah, until the internet, there were greater restrictions on published speech. Much greater. Some were legal restrictions. Most were customary. Or a blend of customary and legal.

    Speech law specialists, for reasons I could never figure out, mostly didn't notice that. Without crediting the work private publishers were doing keeping damaging material—both false AND true—from getting published, private publishers kept hard cases out of courts. Lawyers took credit, "Okay, our legal system works great!"

    Now, with the internet, the nation is either going to enlarge the legal system to do the work the private publishers previously did, or, lawyers will use courts to force society to become accustomed to living neck deep in swill and malice. Lawyers may think that's fine. Society doesn't want it. Which is why these cases keep coming up.

    A third alternative would be better. Put it back the way it was. Hold internet publishers to the same standards as legacy publishers.

  • TwelveInchPianist||

    Stephen, if you think being made fun of is bad, maybe you should try being incarcerated. Do you think you'd like it any better?

  • Stephen Lathrop||

    TwelveInch, don't you suppose a bullying target who is seriously contemplating suicide might be glad for the relative safety of incarceration?

    More generally, bullying targets lose real personal liberty when they lose access to the public schools, and get shipped instead to distant private refuge schools. Their families will be subject to expense, despite laws to the contrary. They lose friends, if they have them. They lose access to (typically) better curriculum. They lose extra-curricular activities. They lose time getting back and forth. They lose the educational value of associating with cognitively typical peers. They get stigmatized as special needs students, especially when it's time for college applications.

    That's not incarceration, but it's a tall pile of negatives. The willingness to accept it all tells you something about the severity of the situations that drive them to it. So please, not "being made fun of."

    Setting aside, for the moment, that incarcerating people for bullying would only happen in horrific cases that obviously called for it, what about justice? Why should the targets be the ones to bear the burden, instead of the instigators? The unwillingness of school administrators to consider that question as a school governance priority is a principal reason why demands for laws of this sort keep coming up. Where is your concern for justice?

  • Absaroka||

    "The unwillingness of school administrators..."

    If your school admins are incompetent (which is sadly fairly common) wouldn't replacing them with competent people be the logical approach? If they can't handle bullying they probably aren't much good on a bunch of other things either.

    As an aside: we had a local ... gentleman ... violate the protective order and show up at his ex's house. As she fled in her car he emphasized his displeasure by loosing off a dozen odd rounds in the general direction of her car, hitting several houses but fortunately no people. He was out on bail in a couple of days, because jail overcrowding. Who should have priority on those scarce jail beds - him or some teen bully saying really nasty things?

  • Stephen Lathrop||

    Absaroka, as you can see from comments here, there is a numerous downplay-the-bullying constituency. It finds particular expression among folks who think mandated special education funding takes too much money from general curriculum. Many in that group believe also that dollars spent on educating the disabled are mostly just feel-good, otherwise pointless expenditures.

    School superintendent candidates who agree with those kinds of notions find a natural market among similarly inclined school committees. That kind of superintendent knows how to find a like-minded special education director. They all get multi-year contracts. So there are a lot of folks, often majorities, who don't agree with you about incompetence. They are getting what they want.

    It takes mobilizing differently-motivated school political oversight to even get rid of those administrators at contract renewal time. Assuming that can happen, it takes years, while the damage goes on and on. For any but the luckiest bullying targets, relief will come way too late.

  • Michael Ejercito||

    These are just words.

    I am a regular participant in the Usenet newsgroup soc.culture.israel.

    click here

    Read the messages. I regularly get called a gook and a needledick and accused of sucking men's rectums.

    Just words.

  • FlameCCT||

    "...don't you suppose a bullying target who is seriously contemplating suicide might be glad for the relative safety of incarceration..."

    Does it hurt being this ignorant Stephen?
    Or just normal for a Progressive?

    BTW: the answer to your question is NO!

  • GabrielSyme||

    >TwelveInch, don't you suppose a bullying target who is seriously contemplating suicide might be glad for the relative safety of incarceration?

    That would have been me back in middle school. No, I don't ever recall thinking "You know this daily bullying I experience sucks, I sure wish I was in juvie instead!"

  • David Nieporent||

    Dan, in many, many instances the damage includes being driven from the school. Or sometimes suicide.

    No. You're making these "facts" up.

    This nation is loaded with private schools which are basically being operated as refuges for bullying victims.

    These too.

    A third alternative would be better. Put it back the way it was. Hold internet publishers to the same standards as legacy publishers.

    They are. And, no, shutting down the Internet is not a "better" alternative to free speech.

  • Stephen Lathrop||

    Nor is shutting down the internet even remotely necessary, any more than shutting down legacy publishing was necessary.

  • David Nieporent||

    If Facebook and Twitter and Amazon and Google and Reason.com and... well, you get the idea, were liable for everything that anybody anywhere published on their sites, they would all be out of business in short order.

  • Stephen Lathrop||

    Fine with me, Nieporent. Those private companies aren't the internet. They are a particular grotesque manifestation of bad legal policy with regard to the internet. They are government-coddled monopolists. Put them out of business with monopoly-restrictive polices—policies which make the publisher read everything before it's posted, for instance—and the monopolists would be replaced by a plethora of smaller, more responsible, more accurate publishers, publishers who could and would do the required reading. That would be good, not bad.

    Nobody would have to worry anymore that internet monopolists are about to destabilize the national political system. And you and EV wouldn't have to worry constantly about ordinary folks trying to pass laws (admittedly often bad, over-reaching laws) to protect themselves from all the other grotesque consequences the present policies unleashed.

  • David Nieporent||

    Fine with me, Nieporent.

    I know. Because you're pro-censorship.

  • Stephen Lathrop||

    By the way, Dan, what you call "hurt feelings," is often accurately interpreted by the bullying target as being stripped of every kind of social protection, formal and customary alike, including protection from assault—or maybe just minor assaults, repeated constantly. Make a mob large enough and civil society tends to yield (large enough can be pretty small—it varies by place and context—four or five bullies bold enough to torment a victim openly and continuously during a class period will defeat the resolve of many teachers).

    And school administrators are quite often of the DiverDan "hurt feelings," school of thought, which adds another layer of vulnerability. That kind of administrator will not hesitate to punish a teacher who sends too many students to the office for discipline. Do you really think a bullying target who is being assaulted repeatedly, verbally and physically, and who has had to figure out that the school administration is protecting the bullies, is just someone with "hurt feelings?"

    And please, don't tell me if it's assault, there is already a law. Almost every instance of school assault will seem too trivial for criminal law enforcement. Which is why the larger pattern, which is anything but trivial, needs recognition.

  • PoxOnBothYourHouses||

    But Stephen -- and we've had similar discussions in the past -- would you actually support the law under discussion?

    I find that hard to believe. It seems /so/ over-broad that it could be used against people who say almost anything that almost anyone considers "hurtful."

    And it will. It is the same thing as the proliferating campus rules that shut people down for making conservative political or philosophical arguments. If it stands, there /will/ be prosecutions for calling a person something like a wombat on-line.

  • PoxOnBothYourHouses||

    And the person calling another a wombat will face a year of imprisonment and a fine.

  • Stephen Lathrop||

    You lose credibility when you suggest someone is going to go to prison for a year for calling a target a wombat on the internet.

    Try to keep this a serious discussion. I assume you lack urgency about school bullying because, like most people, you conflate the term with the usual adolescent jockeying for attention and status that everyone experiences. The bullying targets that need the law are nothing like that. They are far closer to being the victims of a lynch mob. And, like classic lynch mob victims, they too often find themselves bereft of institutional and legal protections which ought to keep their tormentors in check, but mysteriously fail to operate.

    Also, please refer me to an example of, "the proliferating campus rules that shut people down for making conservative political or philosophical arguments." I will oppose them. On the other hand, unmistakable personal attacks thinly disguised as political or philosophical arguments don't command deference.

  • David Nieporent||

    You lose credibility when you suggest someone is going to go to prison for a year for calling a target a wombat on the internet.

    Well, given your demonstrated lack of understanding of the legal system, I don't know why anyone should be concerned about the fact that you fail to give them credence.

    The bullying targets that need the law are nothing like that. They are far closer to being the victims of a lynch mob.

    I mean, they're not being lynched, so that's a minor difference from being the victim of a lynch mob. The law we're discussing prohibits speech -- yes, speech -- not lynching. I'm pretty sure most lynch mob victims would have willingly traded teasing for being murdered.

  • Stephen Lathrop||

    Yes, the lynch mob is an extreme example. I chose it deliberately, to make two points. First, that bullying targets of the sort I am talking about are situated closer to the extreme example than to the example which you characterize (out of profound ignorance) as, "teasing." Second, to introduce the notion, which I mentioned, that bullying targets, like lynching targets, too often find themselves bereft of customary and institutional protections, because of malign social collusion with the bullies, or because too many fear the complications and consequences of opposing them.

  • PoxOnBothYourHouses||

    My credibility is neither here nor there. I chose a simple insult ("wombat") to emphasize the point that prosecutors will push a law as far as they can. While today one may /think/ it applies only to a metaphorical lynch mob, it will be used to crack down on nuisances.

    As in the cases we have covered at this site where teens have been charged and even convicted of violations of kiddie porn laws -- which were intended to keep them from being sexually exploited by adults -- for sending friends sexual photos of themselves that they took themselves. It doesn't fit the sense of the laws, but it can and is used by authorities for their own purposes.

  • David Nieporent||

    And please, don't tell me if it's assault, there is already a law. Almost every instance of school assault will seem too trivial for criminal law enforcement. Which is why the larger pattern, which is anything but trivial, needs recognition.

    "We have to pass a law to ban speech because otherwise people will beat people up and the police won't do anything about it because it's trivial." Do you even listen to your nonsensical arguments before posting them?

    If the police won't do anything about physical assault even though it's illegal, why would they do something about saying mean things about other people if it's made illegal?


    I do like how you've invented imaginary bullying victims in implausible situations and then you've capped off your flights of fancy by inventing imaginary school administrators who punish teachers because some students in their class are assaulting those victims "openly and continuously" during class.

  • Stephen Lathrop||

    Nieporent, none of what I described is made up. None of it is rare. In the case I had in mind, the details are notably more horrific than the general description I offered. I'm protecting privacy by omitting them.

    The schools I mention are places where you can go, as I have, and hear over and over again stories of the sort you say do not exist. Just look for schools with a specialty in teaching kids with high functioning autism, and go talk to the administrators about what brings kids to the school. They can tell you a similarly shocking story for almost every kid in the school—not just about bullying, but also about administrative neglect and complicity in the schools the kids came from.

    As is so often the case, people who know nothing about what they discuss assume their ignorance encompasses the field. It's remarkable, too, that this becomes a partisan issue. Most folks who combine your kind of ignorance with your kind of attitude seem to fall in the conservative/libertarian part of the political spectrum. Too many of them have jobs as public school superintendents, special needs directors, or educational bureaucrats in conservative administrations.

    Is there some kind of ideological stake in suppressing help for bullying victims? What motivates you in your taunting, baseless, skepticism and denial?

  • Eidde||

    If the problem you're trying so solve includes school administrators refusing to punish actual assaults, then I guess one solution would be to have cops go over the heads of the administrators and arrest the assaulters. Are new laws against speech needed for this?

    Or if a school refuses to punish disruptive behavior (in the Tinker sense), then yes, leaving that school is the proper response. The more vigorous the school choice policy in the area, and the more schools available which focus on academics rather than going soft on misbehaving youngsters, the more solutions there should be to the problem.

  • Eidde||

    Or you could use your First Amendment rights to urge parents to pull their students out of PS 666, warning them that there's a gang of bullies there that the principal ignores.

    Of course, that might hurt the feelings of the bullies and expose you to prosecution.

  • Perseus`||

    To the extent that there is a real problem behind the hysteria, there are plenty of things that have been identified that could be targeted and have begun to be targeted by states (what little empirical evidence there is thus far suggests that required school policies effectively enforced work best) without resorting to enacting a law that tramples on free speech because the intent is to "save the children." But continue with your sanctimonious bluster and stubborn ignorance of the 1A.

  • David Nieporent||

    Nieporent, none of what I described is made up. None of it is rare. In the case I had in mind,

    Well, if you have a case in mind where something happened one time out of tens of millions of school kids, then obviously it isn't rare.

    Most folks who combine your kind of ignorance with your kind of attitude seem to fall in the conservative/libertarian part of the political spectrum. Too many of them have jobs as public school superintendents, special needs directors, or educational bureaucrats in conservative administrations.

    TF? Are you claiming there are lots of libertarian school superintendents out there?

    Is there some kind of ideological stake in suppressing help for bullying victims?

    There's some kind of ideological stake against passing new, unconstitutional, censorious criminal laws for imaginary situations.

  • LadyTheo||

    Stephen,
    I understand what you are saying. My middle son, non-high-functioning autistic, was bullied. To what extent, we are not sure, because he kept silent about it. We heard snippets--"retard," pushing hininto lockers, breaking his Kindle--only after he did a horrific thing.

    How much did the bullying and social ostracism matter? We will never know. We have essentially lost our son. I can point the finger of blame at myself, as well, of course.

    Even so, I think a law such as this is too broad. When presented with the choice between prosecuting the easy, trivial targets and the difficult, noxious ones, enforcers usually go for the easy, low-hanging fruit.

    The answer, I think, lies in teaching victims to speak to adults who care--including parents, and having penalties in place for adults who look the other way.

    As far as on-line stuff goes, far better to teach our kids to ignore social media and find real-world allies and friends. When the on-line behavior bleeds into meat space, which it will, then targeted punishment can be applied. But the adult witnesses need to be given the appropriate incentives to take notice and act.

  • Stephen Lathrop||

    Thank you for that thoughtful response. I'm sorry for your loss. You make good points that deserve consideration.

  • Absaroka||

    "four or five bullies bold enough to torment a victim openly and continuously during a class period will defeat the resolve of many teachers"

    Without even getting into the free speech issues, teachers that can't control a classroom need to either develop the needed skill or seek a different career. If you can't keep the kids on task, they aren't going to be learning. This is true whether the off task activity is bullying, daydreaming, or whatever.

  • Stephen Lathrop||

    Absaroka, few teachers indeed will be able to keep a high school classroom on task if the administration takes the line you take, and suggests that determined, multi-student thugishness in a classroom is a demerit of the teacher, and no responsibility of the administrators themselves. In cases where almost everyone in the school is physically in fear of the bullies, administrators tend to push the responsibility back to teachers with the particular heedlessness which only the combination of cowardice and power enables.

    That's not a problem a teacher can expect to solve. It isn't a problem parents can solve. It isn't even a problem a community can solve, except slowly. Where slowly isn't good enough—and slowly is never good enough in cases of severe bullying—forceful intervention from outside the system is a practical answer, and may be the only answer.

  • Michael Ejercito||

    We have the mightiest military force in the world.

    Let's use it.

  • Absaroka||

    "That's not a problem a teacher can expect to solve."

    Oh, hogwash. My wife was a teacher for 3 decades. Solving 'those problems' is part and parcel of what competent teachers do every day. Classroom control is the sine qua non of teaching. Albert Einstein couldn't successfully teach 7th grade physical science if he couldn't control the classroom.

  • Stephen Lathrop||

    Sure, Absaroka, and in all that time, she never had to get support from a principal? Never sent a kid to the office? What grades did she teach? Any students she was physically afraid of?

    I'm asking what would happen if it were a kid big enough to challenge an adult male physically, and erratic enough that he frightened every adult the school. What happened when she sent a kid like that to the office, and the principal bounced the kid right back, and later told her to expect that every time, until she learned to control a class? And the next day, the kid does it again, defiantly. And one of the guys this idiot leads around tells her, "Shut up, bitch," and a couple more laugh at that. And 3 of them start in with sexualized taunts for the rest of the class period, while still more start giggling. She can fix that by herself, right? Can you tell me how?

    Then, class assignments for next year come out, and she gets classes with no one in them but knuckleheads and discipline problems.

    Please explain your wife's formula for fixing that. Then explain her solution for the meek female math teacher who lacks her magical toughness—but is the only teacher in six counties who can teach trigonometry or calculus.

    I'd rather hear your wife's answer than yours.

  • Absaroka||

    "in all that time, she never had to get support from a principal?"

    TBH, she never found that supporting teachers was something admins did a lot of.

    "What grades did she teach?"

    High school.

    "Any students she was physically afraid of?"

    Not particularly.

    Effective teachers have what cops call command presence. You need it to be a teacher, cop, or gunnery sergeant. If you have a school so dysfunctional that kids are assaulting teachers and law enforcement isn't doing anything about it, then you have a pretty broken school. And if the justice system isn't enforcing the law against assaulting teachers, it's not going to be enforcing your free speech restrictions either.

    But having spent a few decades married to a teacher, and therefore having a lot of teachers as friends and hearing their complaints, well, the dystopian schools you envision don't seem very thick on the ground. And, to repeat myself, speech restrictions aren't the fix anyway. A government that's unable or unwilling to stop assaults isn't likely to have much success controlling speech.

    You seem to live in such a hypothetical world, and one so far from the reality others experience.

  • David Nieporent||

    Please explain your wife's formula for fixing that.

    There's no solution to a situation in which students are going around assaulting teachers and the principal shrugs at the teacher and says "Ha, ha."¹ (Well, maybe concealed carry.) But this law we're discussing has nothing to do with that situation, so it's a complete red herring.


    ¹ This is starting to sound like Kobayashi Maru here; Stephen invents far-fetched situations and then every time someone makes a suggestion he keeps adding more and more outlandish facts to create a no-win scenario and then says, "Oh yeah? Well, what's your solution now, huh?"

  • Stephen Lathrop||

    Nieporent and Absaroka, what would be the point of giving you chapter and verse, and facts from real cases—which back every assertion I made, and which you deride? You have already shown you aren't curious, and are in denial.

    I made up nothing. There is nothing hypothetical in any of the instances I mentioned on this thread. It all happened. And there are plenty of places in the poorer parts of this nation where incidents like those are commonplace. And some also in the richer parts.

    I haven't made even a dent in my store of similar true accounts about bullying targeting disabled kids—or about outrageous bureaucratic responses targeting teachers and other professionals who try to help—or even just try to restore order after the mere presence of someone disabled catalyzes disorder.

    That phenomenon is a mysterious social affliction, which comes up often enough to be a major problem, but not often enough to be part of most people's everyday experience. It doesn't help awareness that until a few decades ago, the custom was to take care of all that in special settings, out of public view. People who grew up during that previous interval tended to see that stuff only if they had direct personal involvement.

    The fact that you don't know about things like that isn't basis for critique. "I didn't know that, so you're wrong," isn't much of an argument.

  • DjDiverDan||

    "Dan, in many, many instances the damage includes being driven from the school. Or sometimes suicide."

    Stephen, are you seriously contending that these results are the result of someone saying mean things about someone else on the internet? I have been the target of untold opprobrium on the internet (much of it on this blog), and never once was I "forced" to change jobs, never once was I moved to consider suicide. What you are claiming is that persons of such neurotic insecurity and fragility of psyche, that they might be moved to run like a frightened bunny away from every insult or even contemplate suicide, should be protected from every insult or expression of disapproval. And, with respect, that's just ridiculous.

    Years ago, when I was very young and came home from nursery school crying because a cute girl laughed at my big ears or because some mean first graders called me ugly or made fun of my name, my parents didn't treat it as if such "verbal abuse" were intolerable "bullying". They told me "sticks and stones may break your bones, but words can never hurt you." They also taught me that you can only be hurt by the opinions of others if you respect the source of those opinions. Maybe, just maybe, instead of talking about restricting speech to protect fragile snowflakes, we ought to talk about educating children on how to deal effectively with a sometimes cruel world without having to run away or consider killing themselves.

  • Stephen Lathrop||

    Dan, your examples show that you are without experience regarding the subject I discuss. That's my fault, for not making it clear. I'm not talking about one-on-one incidents. I'm not talking about "words." I'm not talking about "neurotic insecurity." I'm not talking about anything normal, and run-of-the-mill.

    I am talking about a phenomenon with which you—along with many others—are apparently unfamiliar. Some kids are born with measurable neurological deficits, and also without cognitive machinery to make use of the lessons you say they should learn. That means that not only can they not fight back physically, they also can't muster useful verbal responses when tormented. Among peers with personal insecurities, that impression of utter vulnerability apparently triggers aggression—verbal aggression and physical aggression both—anything they can get away with. And they group up to do it.

    Educators cite high-functioning autism as a particular catalyst (but not the only catalyst) for that kind of group aggression. As solutions to that kind of challenge, prescriptions for character building offer little prospect of help. For the subset of kids with enough physical skill to master it, karate works better. But actually putting it to use comes with its own set of problems.

  • DjDiverDan||

    Accepting everything which you say as true, I still do not see it as a justification for infringing free speech rights. Criminalizing being mean with one's words is a bridge too far for me, even if there are fragile psyches out there who can't cope.

  • Stephen Lathrop||

    Fair enough, Dan. Please note, however, that you are now assigning the costs of the problem to the victims instead of the perpetrators. I suggest that justice is better served when it's the other way around.

  • Perseus`||

    We wouldn't have these problems if only we would confine 1A protections to a medieval trade guild of publishers.

  • David Nieporent||

    I am shocked to find Lathrop speaking up for censorship once agaIn. With the same stupid arguments he always makes, based on absurd strawmen. Published remarks are just speech.

    (I like the silliness about the "publishing" being "world-wide." As if anyone outside of local circles cares about what people say about their classmates anyway.)

  • Stephen Lathrop||

    Nieporent, employers care, world-wide. College admissions committees care. Google is a thing.

    But thanks for, "Published remarks are just speech." I'll quote that back to you the next time you try to pass yourself off as a libel expert.

    As for strawmen, do you suppose it's strawmen creating these laws you don't like?

  • David Nieporent||

    As for strawmen, do you suppose it's strawmen creating these laws you don't like?

    No. I think it's stupid politicians (but I repeat myself) passing laws based on strawmen.

  • ||

    So only nice things can be said about the sext just received from the under-18 student, otherwise her educational performance, opportunities or benefits, or mental, emotional or physical well-being might be negatively affected.

  • QuantumBoxCat||

    In those scenarios you generally conclude that the person in the hypothetical "is a criminal." It would seem a more appropriate conclusion is that, based on that fact pattern, a prosecutor may have a strong argument that the person is in violation of the law. You also have a decision to investigate, a decision to even bring charges, preliminary hearings challenging the charges (and decisions on those), and of course a determination by a judge or jury on guilt. Lots of different people and moving parts going on there.

    You created the fact pattern, interpreted the statute and applied the fact pattern to it, and then found the student to be a criminal. Yikes! The idea of one person having all that power scares me more than the NY statute. That our system doesn't work that way kind of waters down the claims.

  • DjDiverDan||

    But once this law is on the books, one person DOES have all that power - the prosecutor. And that prosecutor is elected, so he or she has a strong incentive to appear "tough on crime" and to run up a string of convictions.

  • PoxOnBothYourHouses||

    After what just happened to Judge Aaron Persky in California (recalled for giving a fairly light sentence, that was requested by the county probation department, for a sexual assault), judges may have more incentive to be "tough."

  • art guerrilla||

    uh oh, talk about un-free speech, I have exceeded my generous free speech allowance of 1500 'characters'... nice... still too long after third editing, what a bunch of horseshit... just going to delete the rest of the comment, what is the point when it can't be explicated completely due to artificial limits imposed...
    of course, the irony being a column/site which supposedly values free speech and dialogue...
    it really is just bullshit all the way down, isn't it ? ? ?

  • gormadoc||

    This is satire, right?

  • Rockabilly||

    Hey, I'm 17 and live in Brooklyn - go fuck yourself commie ass hats.

  • vaadu||

    How does NY expect to enforce this for comments created by persons outside their physical borders? Are they going to charge and extradite someone from Boston or Toronto over a nasty discussion about the Yankees?

    It appears like little more than feel good legislation that will get struck down by the first court for numerous reasons.

  • SchillMcGuffin||

    What's the source of that "noblesse oblige" quote? I don't see any citation.

  • Eugene Volokh||

    Sorry, forgot to include the link -- it's United States v. Stevens, a 2010 Supreme Court case.

  • SchillMcGuffin||

    Many thanks for your responsiveness.

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