New York to Publius: You’re Done, Bully-Boy

East Patchogue’s voice in the New York State Legislature, Dean Murray (if that’s his real name), saw his chance and took it. Cyberbullying, the bane of the internet, is the hottest ticket around for politicos, and New York’s legislators are nothing if not happy to jump on the bandwagon. 

From Murray’s press release at the New York Exchange :


(Long Island, NY) Assemblyman Dean Murray (R,C-East Patchogue) held a joint press conference today with state Senator Tom O’Mara (R,C-Big Flats) and several of his colleagues in the Assembly to unveil the Internet Protection Act (A.8688/S.6779). The legislation would combat cyberbullying by allowing the victim of an anonymous website posting to request that the post be removed if the anonymous source is unwilling to attach his or her name to it.
 
“While the Internet is a wonderful resource for social networking, sadly it can also used to anonymously bring harm to others,” said Murray. “My legislation addresses the dangers of cyberbullying and protects the victims of this offense. By demanding these online abusers come out from anonymity and identify themselves, they will hopefully think twice before posting harmful comments about others.”

That anonymous posters feel empowered to say things that they would be less inclined to say if their name was attached is certainly true, and one of the primary reasons why a number of blawgers, most notably  Dan Hull and Mark Bennett, have chosen not to allow anonymous commenting at their blawgs.  But that’s a personal choice rather than a legal mandate.

The law, via Eugene Volokh, goes in an entirely different direction than others purportedly designed to prevent anyone from saying anything that hurts someone’s feelings by criminalizing the speech.  Instead, the  proposed statute shifts the burden to the website administrator to remove the speech upon demand unless the name and vital statistics of the speaker can be confirmed, whatever that means.



1. Definitions. As used in this section, the following words and terms shall have the following meanings:


(a) ["]Anonymous poster["] is any individual who posts a message on a web site including social networks, blogs forums, message boards or any other discussion site where people can hold conversations in the form of posted messages.


(b) “Web site administrator” means any person or entity that is responsible for maintaining a web site or managing the content or development of information provided on a web site including social networks, blogs forums, message boards or any other discussion site where people can hold conversations in the form of posted messages, accessible via a network such as the internet or a private local area network.


2. A web site administrator upon request shall remove any comments posted on his or her web site by an anonymous poster unless such anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate. All web site administrators shall have a contact number or e-mail address posted for such removal requests, clearly visible in any sections where comments are posted.

They’ve beaten the troubling, if not impossible, problem of defining speech they don’t like by covering all speech, hurtful, mean or just stuff someone finds contrary to his tastes.  If it’s anonymous, it comes down.  This includes “Republican’s suck,” and well as “Democrats smell like army boots.”

One minor stumbling block to this law is that it’s flagrantly unconstitutional.



The bill is unconstitutional, see Talley v. California (1960) and McIntyre v. Ohio Elections Comm’n (1995); the First Amendment, the Supreme Court has held, protects anonymous speech (except in limited conditions related to election campaigns). The proposal is thus a fitting bookend to the four Democratic New York Senators’ paper on, among other things, how “[p]roponents of a more refined First Amendment argue that this freedom should be treated not as a right but as a privilege — a special entitlement granted by the state on a conditional basis that can be revoked if it is ever abused or maltreated,” though more New York Republicans are on board this bandwagon than New York Democrats were on board the other one.

Then there are some technical problems, such as how one confirms that a person who comments as “Joe Smith” is really “Joe Smith.”  Maybe his legal name is “Joseph Smith,” or maybe it’s Sally Smith. What are the chances I’m going to risk jail over this? 

Of course, in the name of preserving happiness and preventing any delicate flower from having their feelings hurt, the “speech as a privilege” argument is gaining traction.  Crazy politicians, bent on destroying the Constitution, you say?  And who elected these crazy politicians?  And who will applaud the loudest as they announce their scheme to end the “epidemic of cyberbullying?”

If Dean Murray, together with “twenty-three of the forty-nine New York Assembly Republicans, plus one Independent and one Democrat,” think this is going to play well in East Patchogue, there’s a reason.  Stories, whether real or hyped, of lovely young people driven to end their lives because of mean things online make regular folks, the ones who vote, angry.  No one wants to hear of a child who committed suicide, and the argument is that if the death of free speech will save a single child, it’s worth it.

You may disagree with this weighing of the alternatives, but you won’t change a lot of minds.  Few care all that much about the right of nasty anonymous people on the internet to drive a child to kill himself.

The irony is that a good many readers here will be the first to call out the Luddite chicanery that gives rise to this anti-cyberbullying trend, but will be just as quick to whine about “haters” when they’re delicate feelings are hurt.  

Jordan Rushie summed up the paradox succinctly in this comment :


Free speech is my right to say stuff you don’t like. Hate speech is my right to make you stop saying stuff I don’t like.

Eventually, a judge somewhere is going to hold some misbegotten anti-cyberbullying law constitutional. What? You thought only Fourth Amendment rights could be eviscerated? And the applause may be deafening. Even you may find your hands involuntarily clapping.  You never know, the meek may still inherit the earth, and when they do, they will shut up every person who ever hurt their feelings.

3 comments on “New York to Publius: You’re Done, Bully-Boy

  1. Dan Hull

    Nice to see the anonymous/Club Ned issue out there a bit more. And thanks for the mention. Sometimes I think things are getting better–I actually think they are–and then I’ll check Above The Law and note what people not even titty high (Deep South expression, sorry) to him and not worth 2 seconds of his time say anonymously to editor-writer Elie Mystal on a regular basis. Elie’s race and politics get batted around in a way that makes be think that many commenters are perfectly happy telling the world they have no guts, no shame and no soul. Amazing. “Publius” as a pretext for chickenshit behavior is real close to the supreme and final obscenity in public discourse.

    You can’t legislate everyone’s using their real name when they speak and attack. But at our own sites we can require a modicum of character and class.

    Your site? SJ’s occasional anonymous maggotry is, at least, bright and entertaining. :)

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