One of our New York State Senators, Jeff Klein. and his fellow members of the Independent Democratic Caucus — Diane Savino, David Carlucci and David Valesky — have published a report on Cyberbullying which calls for an amendment to state stalking laws and a new law for what they call “cybercide”, murdering a person by broadcasting or publishing words or images about who person who commits suicide.
READ HERE: Final Cyberbullying Report, Independent Democratic Caucus
The report consists of page after page of legal cases, laws, court rulings, studies and reports to “prove” that bullying can and has lead immediately to death (“cybercide”) and lay the political predicate for changes to New York State law to give the government new “tools” to “protect” children (people under 21). Under the proposed changes to the law, prosecutors can charge people with murder for sending an email or posting on Facebook.
The report concludes:
Cyberbullying is a serious problem that must be addressed for the sake of all young people and generations to come. a role exists for members at every level of society to confront the problem heads-on. Our state’s laws are the framework that define acceptable behavior within our society, and it is within that framework that legislators, such as members of the IDA, can make the biggest impact. social norms, which together with technology have allowed bullying behaviors to evolve into what they are today, will certainly take time to change. but together we can create a united front to combat cyberbullying and turn our society into one that embraces respect, civility, and tolerance. cyberbullying is a unique threat that calls for unique solutions. New York’s laws must be brought up to speed with the 21st century. the time for legislative action is now. the time for greater awareness is now.
I generally find Senator Klein to be a likable person. He takes his constituent services seriously, he has shown a willingness to think for himself and break free of party dogma by setting up an “independent” Democratic caucus.
His current, muddled, sensationalist proposal is not his finest moment. As is often the case, the road to hell is paved with good intentions.
Let me stipulate that I support the good intentions just not the attempts to legislate morality contained in his proposal.
With a name like Cox, I am well-familiar with the sort of bullying that can occur. Even on this site, there are commenters who will engage in the same sort of puerile hectoring I experienced growing up. A recent Facebook page set up by Kathy Steuber was rife with these sorts of juvenile taunts. One of my children was scapegoated and bullied for a full year at the school bus stop by the son of Emery Schweig, a woman who previously served as PTA President of New Rochelle High School while my son was a student there and now sits on the board of the New Rochelle Public Library.
While his intentions may be noble, his approach is fundamentally flawed and highly likely to result in a bill that will ultimately be found to be unconstitutional if enacted into law.
Senator Klein is proposing legislation that seeks to establish the principle that the First Amendment’s Five Freedoms — Freedom of Religion, Freedom of Speech, Freedom of the Press, Freedom of Assembly Peaceably, Freedom to Petition the Government for Grievances — are not “inalienable rights” but merely laws subject to legislative action to limit or curtail them. Senator Klein seeks to take us down this Road to Serfdom under the guise of “protecting children”, second only to patriotism as a refuge for scoundrels (not that Senator Klein is a scoundrel but you see my point).
Senator Klein’s proposal is so beyond the pale that it reads like a satire akin to George Orwell’s Nineteen Eighty-Four. Here are a few actual excerpts:
- “the bill does not require that the offender initiate the communication”
- “a single electronic communication can be considered a “course of action” if it is directed at a child under the age of twenty-one years and transmitted to multiple recipients – even if the child is not one of them.”
- “this bill does not require that the cyberstalker intend to frighten or harm the victim.”
- “there need not be intent to cause a specific result, such as fear.”
- “particular conduct will be deemed criminal based on subjective fear of the alleged victim.”
- “a person is guilty of manslaughter in the second degree when he or she commits the offense of stalking in the third degree…and intentionally or recklessly causes the victim of such offense to commit suicide.”
This is a not a joke. Those are excerpts from the actual proposal. In the language above, in italics, where the accused is already assumed to be guilty.
Let’s strip out the inflammatory words and put this in real world terms.
You write an email about a person, under the age of 21, in which you make some juvenile, mocking, derogatory comment about the person. The person who gets the email finds it amusing and forwards it to two other people. The person you wrote about feels afraid, commits suicide. State prosecutors obtain a copy of the email you sent about that person. You are arrested.
Under Klein’s proposed legislation, because this email was forwarded to two other people, even though it was without your knowledge or consent, it is considered a “course of action”, the same as if you had been repeatedly sending similar emails over a period of months; even though you did not intend for anyone else to see it, even though you did not intend to frighten or harm anyone, even though the subject of the email never read the email, the subject of the email somehow express feeling afraid and later commits suicide. The police come to your house and you charged with manslaughter in the second degree. The DA’s office alleges that you should have known that the person might become aware of the existence of your juvenile, mocking, derogatory email, being frightened by it and kill themselves.
So, you sent an admittedly stupid email and now you are on trial for murder, courtesy of Senator Klein.
Think I am joking?
Now Senator Klein would tell you that his law is intended to address other, more egregious cases. But once the law is on the books any District Attorney in New York, looking for a few headlines, for political retribution, or out of sheer stupidity, can use the law in ways that Senator Klein cannot foresee. Or maybe he is unaware of cases of prosecutorial abuse? Does Mr. Klein rule out the possibility that someone might use this proposed law for public relations purposes? Isn’t that what he doing here, right now?
Senator Klein dismisses what he characterize as unenlightened purists and sides with that he calls “proponents of a more refined First Amendment”.
Refined?
In Senator Klein’s world, “Free Speech is no longer a right but a “special entitlement granted by the state on a conditional basis that can be revoked if it is ever abused or maltreated.” Again, these are direct quotes from the report.
Special entitlement?
Conditional?
Granted by the State?
Revoked?
And who decides what conditions entitle the government to revoke our special entitlement granted by the state? Why, it’s the state itself. If Senator Klein and a few of his friends decide that the “special entitlement granted by the state” formerly known as the First Amendment to the United States Constitution is being “abused or maltreated” then they can have you arrested. And who decides what constitutes “abuse” or “maltreatment”. That would be Mr. Klein and his friends in Albany.
Does this sound like a good idea? I don’t think so.
Senator Klein will assure us that he would only take away the special entitlement granted by the state” formerly known as the First Amendment to the United States Constitution if a child is cyberbullied and commits cybercide. So, what if a person is 22 years old? Is it open season on anyone older than 22. Rest assured that the next step would be to expand the basis on which the state can revoke our former right to free speech. And why stop at “cybercide”? Having established the principle that the “free speech” is merely a “special entitlement granted by the state” that can be revoked by legislative fiat, how long will it be before criticizing a government official is a crime.
Think that cannot happen in the United States of America. It already has, many times
We’ve been down this road before, going back to the earliest days of our country, with the Alien and Sedition Act in 1798. Government officials are always on the make, trying to find ways to make it a crime to say things they do not like and tops on that list is criticism of them, the government; it is precisely why the founding fathers enshrined the “Five Freedoms” in the U.S. Constitution in the first place. We broke free from England so we that we would not be subject to monarchial restraints on our freedom to criticize the government, worship as we please, associate with whom we please, have a free press, say what we want.
In the conclusion of the report, Klein, et al rather oddly choose to cite John Stuart Mill and Oliver Wendell Holmes, Jr. to support their notion that the government has a right to restrict online speech.
Has he even read a book by Mill or a judicial opinion by Holmes? Judging from this report, I would have to say not.
Mill is quoted saying “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm from others.”
Klein is quoting from On Liberty where Mill describes what has become known as his “Harm Principle”.
Mill argues “the sole purpose of law should be to stop people from harming others and that should people want to participate in victimless crimes, crimes with no complaining witness, such as gambling, drug usage, engaging in prostitution, then they should not be encroached in doing so.”
That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right…(emphasis added)
Here is the problem for Klein in quoting Mill.
Klein is quoting a proponent of the idea that the government should not prevent any member of society from doing or not doing something for their own physical or moral good. Mill specially talks about drug and alcohol abuse, saying it is none of the government’s business if someone wants to get blind drunk — or have sex for money or gamble away their life savings. This is a classic libertarian position.
While trotting out Mill to support his position on restricting online speech, Klein is engaged in a long-running battle against the makers of Four Loko, a sweetened alcohol drink. Klein defends his efforts to combat the manufactures of this legal beverage on the ground that “it is time for us to take the necessary steps to get these dangerous cocktails off the shelves of convenience stores and bodegas in order to save our teens from any further injury or harm“.
John Stuart Mill would never support any law to save anyone from harming themselves — that is the whole point of the “harm principle”.
Mill would roll over in his grave when Klein states in his report “Our state’s laws are the framework that define acceptable behavior within our society” that these laws can be used to “turn our society into one that embraces respect, civility, and tolerance.” Mill would say that Klein is attempting to legislature morality which is none of the government’s business. Mill’s position in On Liberty is the polar opposite of what Klein wants us to believe he meant.
The next quote is even better because Klein attributes the quote to the wrong person and takes the quote completely out of context.
Klein writes “[Mill’s] “harm principle” was articulated in an analogy by Oliver Wendell Holmes, Jr. (1841-1935), and still holds true today: ‘the right to swing my fist ends where the other man’s nose begins,’ or, a person’s right to free speech ends when it severely infringes upon the safety and well-being of another.”
Wrong, wrong and wrong.
First the context.
While I do not profess to be an expert on Oliver Wendell Holmes, Jr., I was nominated for a Silver Gavel Award from the American Bar Association by the Fort Worth Star Telegram for an Op-Ed I wrote entitled What America Should Share with the World: Justice Holmes’ Dissent in Abrams v. United States and the Marketplace of Ideas.
At issue was the 1918 Amendment to the Espionage Act of 1917. In Abrams v. United States was “a 7-2 decision of the United States Supreme Court involving the 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to urge curtailment of production of the materials necessary to the war against Germany with intent to hinder the progress of the war. The 1918 Amendment is commonly referred to as if it were a separate Act, the Sedition Act of 1918.”
The Espionage Act of 1917 is United States federal law passed on June 15, 1917, shortly after the U.S. entry into World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the US Code (War) but is now found under Title 18, Crime. Specifically it is 18 U.S.C. §792 et seq. It originally prohibited any attempt to interfere with military operations, to support U.S. enemies during wartime, to promote insubordination in the military, or to interfere with military recruitment. In 1919, the U.S. Supreme Court unanimously ruled in Schenck v. United States that the act did not violate the freedom of speech of those convicted under its provisions. The constitutionality of the law, its relationship to free speech, and the meaning of the law’s language have been contested in court ever since.
Charles Schenck was the Secretary of the Socialist Party of America and was responsible for printing, distributing, and mailing to prospective military draftees during World War I, including 15,000 leaflets that advocated opposition to the draft. For these acts, Schenck was indicted and convicted of violating the Espionage Act of 1917. Schenck appealed to the United States Supreme Court, arguing that the court decision violated his First Amendment rights.
Second, the quote.
The quote is not quoted correctly. The quote is not “The right to swing my fist ends where the other man’s nose begins” but rather “Your right to swing your arms ends just where the other man’s nose begins.”
This is only an important distinction if you believe that that there is a difference between intentionally rearing back and punching someone in the nose and casually swinging your arms about and unintentionally striking someone.
Third, the source.
Oliver Wendell Holmes, Jr. is not the source of the quote. The man who wrote “Your right to swing your arms ends just where the other man’s nose begins.” is Zechariah Chafee, an American judicial philosopher and civil libertarian.
His scholarship on civil liberties was a major influence on Oliver Wendell Holmes’ and Louis Brandeis’ post-World War I jurisprudence, which first established the First Amendment as a significant source of civil liberties. Chafee met with Justice Holmes after the Schenck case (1919), which upheld a conviction of an activist who encouraged draft resistance, and convinced him that free speech needed greater consideration. Shortly thereafter, Holmes joined Brandeis in a dissent in another World War I dissent case (Abrams); this dissent is recognized as the foundation of modern First Amendment jurisprudence. (emphasis added)
Zechariah Chafee, who died in 1957 “was the scion of a notable Rhode Island family that traced its Rhode Island lineage back to Roger Williams (founder of what became the state of Rhode Island). His father, Zechariah Chafee (Sr.), was long affiliated with Brown University. Chafee’s nephew was Senator John Chafee and his grandnephew is current Governor and former Senator Lincoln Chafee.
Published in the Harvard Law Review, Chafee wrote an influential treatise Freedom of Speech in Wartime in which he states:
…it is useless to define free speech by talk about rights. The agitator asserts his constitutional right to speak, the government asserts its constitutional right to wage war. The result is deadlock. Each side takes the position of the man who was arrested for swinging his arms and hitting another in the nose, and asked the judge if he did not have a right to swing his arms in a free county. “Your right to swing your arms ends just where the other man’s nose begins”. To find the boundary line of any right, we must get behind rules of law to human facts. In our problem, we must regard the desires and needs of the individual human being who wants to speak and those of the great group of human being among whom he speaks. That is technical language, there are individual interests and social interests, which must be balanced against each other, if they conflict, in order to determine which interest shall be sacrificed under the circumstances and which shall be protected and become the foundation of a legal right. It must never be forgotten that the balancing act cannot be properly done unless all the interest involved are adequately ascertained, and the great evil of all this talk about rights is that each side is so busy denying the other’s claim to rights that it entirely overlooks the human desires and needs behind that claim.
Note that Chafee says “each side” asserts the same principle. In this construction, the federal government and Charles Schenck both see themselves as excersing the same right to swing their arms and that this act, which they are rightfully entitled to do in a free country, just so happens to cause them to bump into the other. The government has a right to wage war, Schenk has a right to discourage the government from waging war.
What Chafee is arguing is that it is the job of the judiciary to sort out the limits on both sides not one side.
At the time Chafee is writing the Russian Revolution had just occurred and Schenck was articulating a Marxist-socialist ideology, seeking to undermine the American war effort in Europe and foment a similar overthrow of the government in the United States.
Chafee is calling on the members of the U.S. Supreme Court to be more demonstrative in articulating their positions on free speech and that they should come down in support of the right of the socialist agitator to promote the idea that Americans should refuse to fight in World War I.
Is there any doubt that the same man who would support the “free speech” right of a communist activist to undermine the U.S. government during World War I would also support the right of some homophobic jerk to publish an ad hominem screed on Facebook about a 14-year old kid from Buffalo. Chafee was once called “dangerous” by none other than Senator Joseph McCarthy in a 1952 U.S. Senate subcommittee hearing because he was so staunch in his defense of the right to freely articular unpopular opinions.
Mill and Chafee are free speech libertarians who would oppose limits on free speech and would never, not in a million years, support Klein’s legislation.
That Klein is citing, of all people, Mill and Chafee (while mistakenly attributing Chafee to Holmes) to support criminalizing online speech suggests that Mr. Klein’s report is as slap-dash and poorly thought out as his proposed legislation which may be good for a few headlines but will protect no one and be repudiated as unconstitutional if any is ever convicted under his law.
Time to send Mr. Klein back to the drawing board on this one.
