Define Bully

The New York Times offers an editorial supporting Judge George Wu’s tossing of the Lori Drew conviction.  Not exactly a controversial position, at least around here.  But the editorial, like so many written on a holiday weekend in New York City, concludes with an odd paragraph that leaves one to wonder how much grog Punch Sulzberger was drinking.

Lawmakers should enact laws that can withstand challenge to give prosecutors tools to go after bullying of all kinds. What prosecutors cannot do is stretch federal law to label run-of-the-mill Internet activity as criminal.
Of course, there is a liberal tendency to believe that every wrong requires a law to fix it, and wrong is largely defined by its undesirable outcome.  The difference between liberal and conservative approaches is that the latter would require no law, just a darn fine execution to fix the problem, without all those namby-pamby details that muck up the works.

But before lawmakers rush out to pass another criminal law, perhaps someone ought to consider what we’re talking about.  The popular word for describing the problem is “bully”.  The dictionary definition is “one habitually cruel to others who are weaker,” but that’s hardly the definition implied by the Times, or generally used by anti-bullying advocates.  Rather, bullying appears to be the conduct of anyone who says or does anything that makes someone else feel threatened or merely badly.  In other words, you’re a bully if you hurt someone’s feelings.

Do we really want a law to criminalize people who hurt someone else’s feelings?

Certainly, there are many who are of the view that they are entitled to speak their mind without fear of someone else telling them their an idiot.  This permeates the argument of Danielle Citron, who takes it a step further by claiming that it’s women who are most frequently the target of criticism, which therefore converts it from hard feelings to a gender based attack.  The curious reactionary position is that by elevating the free speech right of bullies, we inhibit the free speech right of women, since they are disinclined to speak their mind knowing that someone might disagree with their ideas and tell them that they’re stupid.  This will hurt their feelings, thus making giving rise to the bullying issue.

I’ve been called a bully for criticizing the ideas or conduct of others.  Of course, no one I’ve criticized is weaker than me, and they have every opportunity to defend themselves or criticize me back.  But we’ve reached a point in our common understanding that it’s not the nature of the threat, but the sensitivity of the object of the threat, that defines the wrong.  I’m a bully because I made someone else feel badly about themselves.  Why anyone cares what I say is beyond me, but apparently they do sufficiently to pin the label on me.

Here’s the problem.  People promote a lot of ideas on the internet.  Some are fascinating and well-conceived.  Some are just bone-headed dumb.  Some are downright evil.  But ideas are, in themselves, harmless.  Sure, no one likes it when someone disagrees with them, or even worse, says their ideas are stupid (unless covered up by so many glowing adjectives that one is incapable of understanding what the heck they are saying).  But that’s the nature of presenting ideas.  Not everyone is going to agree with you, and by engaging in the act of publicly opining, one invites scrutiny. 

There’s a huge difference between ideas and engaging in conduct based upon those ideas.  There are laws, plenty of laws, prohibiting conduct.  We can’t physically attack people, whether for financial gain or spurred on by some angry idea floated on the internet.  The act is criminal.  It’s already covered.  To the extent that the harm done carries a varying degree of moral culpability based upon the intention or motivation of the performer, it can be addressed within the scope of sentence.  But the attack itself is already a crime. 

So what this anti-bullying law comes down to is not the conduct to be prohibited, since it’s already prohibited, but the wrong of hurting people’s feelings.  Bear in mind that as awful as the Lori Drew case was, Megan Meiers’ committing suicide is an extreme anomoly, as few people would be pushed to harm themselves as a consequence of hurt feelings.  Laws derived from anomolous situations, particulary when given the name of the victim, are invariably the most dangerous laws enacted. 

The anti-bullying advocates (are there any pro-bullying advocates?) press for a world where people will no longer be permitted to present ideas that offend others, or more accurate challenge ideas that others present in a way that hurts their feelings.  To remove the anti-bullying pejorative language, they want to criminalize criticism.  Citron would do so only for women, apparently because they are too weak to defend themselves from brutish internet men.  I think more highly of women than she does, having had my butt kicked far too often to think of women as the weaker sex.

But the desire for a world where no one’s feelings are ever hurt, upon pain of criminal sanctions, is absurd.  Not only does place the gun in the hands of the most sensitive soul, but it would foreclose debate, discussion, disagreement.  In the name of avoiding hurt feelings, we’ve already created taboos that preclude meaningful discussion of many topics, the most notable being race.  Do we really want the bully police hauling in anyone who challenges beliefs for Hurt Feelings in the Third Degree?

As kids, we were told that the rule of thumb was “sticks and stone may break your bones but words will never hurt you.”  The truth is that words can hurt, but only feelings.  That’s the risk we take when we express ideas, when we interact with others, when we extend ourselves out into the world.  If you don’t want your feelings to be hurt, then hide inside your room.  But if you go outside, exist with others, offer your thoughts, someone may well disagree with you and hurt your feelings.  That’s what it means to live.

Does the New York Times really think we need a law making the expression of disagreement a crime because it will hurt some person’s feeling?  Apparently so, and that’s just fundamentally stupid.  I hope I didn’t hurt your feelings, Punch.

7 thoughts on “Define Bully

  1. Shawn McManus

    Executions should only be used in deterring a physical threat. There’s a Darwinism somewhere in the argument too.

    Butter doesn’t sharpen iron and a sword that isn’t beaten to shape is of little use.

    Regarding making a law for everything… You’d better be careful. People might mistake you for a conservative.

  2. John Neff

    “Lawmakers should enact laws that can withstand challenge”. A good idea and it would help if they used terms that had legal definitions (such as bullying).

  3. Stephen

    I’d agree that a country doesn’t need a specific statutory edict for every wrong but it would be nice to be able to deal with wrongs as they appear. The problem with the Lori Drew case is that, even though it’s a hard case and hard cases make bad law, it’s relatively straightforward to conclude that something bad was done in it, although the specific wrong that occurred is harder to pin down. Lori Drew should hardly face a murder trial for it but I suspect there’s a reasonable consensus that what she did was pretty off, ethically speaking. Bullying is an action that simply isn’t always criminally actionable but sometimes it does and it’s those cases that need a relevant charge to protect the victim. Severe bullying in real life can be dealt with through harassment, assault, various torts etc but that’s hard to stretch to in a purely digital relationship.

    It’s far too easily foreseen that anti bullying legislation will chill discussion and that needs to be addressed before. I just think think that the other end of the scale needs addressed too. The indictment for “accessing protected computers without authorisation to obtain information to inflict emotional distress” is ludicrous, that’s simply not an accurate charge and it would be nice to be able to actually bring out something better than a hacking offence to deal with, accepted, the anomalous situations which have very tragic ends. You need to take your victim as you find them everywhere else so if you do bully your victim into suicide it’s not totally unprecedented to take some form of action against them.

  4. SHG

    We all agree that what Lori Drew or her friends did was wrong, but try to frame a law to prohibit it that wouldn’t suffer from the law of unintended consequences.  The legislative knee-jerk reaction, and apparently the Times’ simplistic reaction, is to give the problem the name of “bullying”, so that it’s something everyone hates, and thus have a whipping boy to criminalize.  And if and when such a law is passed, watch the damage flow.

    The problem is that we are not always capable of crafting a law to prohibit every mean, nasty, evil, harmful thing that people can come up with to do to other people.  The inability to recognize or accept this is the foundation for laws that are worse than the problems they seek to solve.

  5. Stephen

    Yes, that’s very true. I think everyone has at some point looked at a reactionary law and thought to themselves “I can see that one backfiring” and it’s quite often much worse than the original problem. There is a piece of legislation under consideration in the UK at this moment which will have the effect of making possessing a particular kind of paint stripper a narcotics offence punishable by months in jail. This is because individuals have been drinking it as a recreational drug and dying from resulting complications, it’s a big media story over here that this is a killer drug. The problem is it will make entirely law abiding people who want to clean their paintbrushes into drug offenders and that’s a terrible effect.

    I have less of an issue with the word “bullying” because, although it’s highly charged and it’s a too powerful word for the dry side of the debate, I think it’s a useful overarching term for the activities that are being referenced. What’s going is not assault and it’s not completely expressed by harassment etc. Technology currently protects us against physical attacks while online but leaves our personality and our feelings wide open. I think that attacks against your feelings can be just as legally actionable as direct economic loss or personal injury. In fact, in Scotland we have an entire group of damages called solatium which is purely for injury to feelings.

    I personally wouldn’t like that people affected by this are left with only self help or acceptance because there is no legal option. I think that there are many things that the law can’t and won’t cover – pure accidents, force majeure etc – but that nasty things that humans do to each other is pretty much exactly what the law was created to deal with from its earliest days. The problem is absolutely in implementation and there are many horror stories to warn us away from going down this route but I don’t see why it should be something that the law cannot touch with great care and delicacy.

  6. SHG

    Remember that we’re talking criminal sanctions here, not civil, such as solatium.  And there is an existing criminal law, harrassment, that could be used when attacks are not directed at ideas for designed to annoy or bother someone.  But when we tread into areas of hurt feelings, and remember that each of us has a different level of sensitivity, some quite low, it seems a place where criminal law could never be handled with sufficient delicacy to be viable, even if we trusted the police and government to do so.

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