Cyberbullying, Undefined

By a vote of 56-0, the New York Senate passed passed a bill making cyberbulling a misdemeanor punishable by fine or up to one year in jail. Not a single senator voted against this bill, which has the huge virtue of being tough on crime and demonstrates their concern for children. Nobody wants to be on the side of cyberbullies, right?

Except there’s one question that didn’t occur to a single senator. What’s cyberbullying?

This isn’t exactly a new problem following the Court of Appeals holding in People v. Marquan M. that Albany County’s cyberbullying law was unconstitutional. The issue isn’t whether bullying isn’t a problem or doesn’t do harm, but defining what it is and doing so in a way that doesn’t violate the First Amendment. As Eric Turkewitz explains, that’s hard to do.

There is, of course, lots of conduct that we can all agree is bullying, right?  A kid gets taunted by classmates for his less-than-personal personality, and it’s a no-brainer, right?

Well, almost right. I mean, friends do this kind of stuff to their good buddies after all.  It isn’t just for enemies.

But still, let’s say it is an “enemy” of sorts — two kids that actually hate each other. How do they know where the line in the sand is located as to what is legitimate and what isn’t?

So if Kid A wants to say that Kid B’s support of Trump is “idiotic” or “moronic,” or that Kid B seems to be a clueless asshat for believing what s/he believes, would that conduct, if done online, be cyber-bullying? How about if it didn’t involve politics at all, and was purely personal?

Don’t we have a right to call each other schmucks?

This, of course, doesn’t begin to scratch the surface of the problem, neither from the perspective of what is bullying to what is free speech. It’s one of those words that people believe they know when they see, but when put to the test of defining, come up empty.

So the New York Senate came up with a solution in SB2318A:

12-A. CYBERBULLYING.

1. AS USED IN THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:

A. MINOR SHALL MEAN ANY NATURAL PERSON OR INDIVIDUAL UNDER THE AGE OF EIGHTEEN.

B. PERSON SHALL MEAN ANY NATURAL PERSON OR INDIVIDUAL.

2. ANY PERSON WHO KNOWINGLY ENGAGES IN A REPEATED COURSE OF CYBERBULLYING OF A MINOR SHALL BE GUILTY OF AN UNCLASSIFIED MISDEMEANOR PUNISHABLE BY A FINE OF NOT MORE THAN ONE THOUSAND DOLLARS, OR BY A PERIOD OF IMPRISONMENT NOT TO EXCEED ONE YEAR, OR BY BOTH SUCH FINE AND IMPRISONMENT.
3. This act shall take effect immediately.

Notice anything missing there? No definition of cyberbullying. Not a good one. Not a bad one. None at all. It’s a misdemeanor to engage in a “repeated course of cyberbullying,” but what that might be is anyone’s guess.

Is the Senate trying to leave a huge, gaping hole for prosecutors to fill? Or maybe they figure that if the courts are going to be such constitutional sticklers, let judges come up with the definition? Is there any judge so ignorant of law that he wouldn’t toss any prosecution based on this law? Is there any judge willing to create a definition to fill the Senate’s gaping hole? It’s one thing to try to rationalize a statutory definition with constitutional limitations, but this one doesn’t stand a chance.

Turk makes the obvious legal observation:

There is no point passing version 2.0 of a law that will one day be ruled unconstitutional.

Of course it will, as there is no other conceivable option but to hold this ridiculous attempt to criminalize cyberbullying unconstitutional. But there is, of course, a “point” to passing this shockingly badly written law. It enables senators to tell their constituents how much they hate cyberbullying, how much they love children, how hard they worked to craft a law to criminalize one and protect the other. And when those mean ol’ judges trash the law because of that loophole called the Constitution, it will be on their robed shoulders.

Hard as it may be to accept, law is hard, and writing law is very hard. Sometimes, it’s impossible to draft a law that criminalizes conduct that is harmful and wrong because it’s subject to constant variation based on unique circumstances, and any attempt to define it inherently implicates the right to call someone a schmuck. And like it or not, we have the right to say words about other people with whom we disagree in America.

But this law is just a cynical attempt to game the emotions of the electorate, as it has absolutely no chance of passing constitutional muster. The senators didn’t even give it a try, and as much as they may not be the sharpest knives in the legislature, even they know that you can’t criminalize cyberbullying by defining it as cyberbullying.

The one thing they do know is that the voters won’t think any harder than they worked on drafting a viable law, and will kvell over their concern for the children. And really, isn’t the what law is all about, getting re-elected?

60 comments on “Cyberbullying, Undefined

  1. Jake

    Is it necessary to define a word in a law when it has a definition in the dictionary?

    noun
    The use of electronic communication to bully a person, typically by sending messages of an intimidating or threatening nature.

    Reply
    1. SHG Post author

      Yes, Jake, it’s absolutely necessary to define a word that constitutes the crime. Crimes aren’t whatever some elf working at a dictionary company decides they are. And I might add, since this apparently eludes you, what constitutes “intimidating or threatening”? Law is hard. Your question makes this overwhelmingly obvious.

      Reply
        1. Hunting Guy

          Crimson Avenger writing on /.

          “I haven’t read the law, and am not lawyer enough to know whether the law says what this group of lawyers (FB’s) says is correct, or whether the other group of lawyers (plaintiffs’?) is correct, since legalese is a highly specialized version of the language, where words may or may not mean the same thing as they do to the rest of us….”

          Reply
      1. Jake

        Scott: I’m sorry your honor, but I’m afraid we’re gonna have to go ahead and move for dismissal.

        Judge: On what grounds counselor?

        Scott: On account of the fact that the word ‘murder’ is not defined in California penal code 189. How do we know a murder’s been committed here?

        Judge: Are you even a lawyer?

        Reply
        1. DaveL

          Here’s the Mirriam Webster definition:

          Murder: n. The crime of unlawfully killing a person especially with malice aforethought

          Emphasis mine. You can see how that definition gets problematic for legal use.

          Reply
          1. SHG Post author

            That’s pretty much the definition in California, Dave.

            (a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.

            By “unlawful,” the definition means that a killing that is not otherwise lawful, which means you then have to delve into what makes a killing lawful. The problem with the dictionary definition is that it doesn’t provide the rest of the law that controls lawful v. unlawful killing, whereas the statutes and caselaw does.

            Reply
      2. Erik H

        Cyberbullying, defined: “The use of electronic [cyber] communication to bully a person”
        Bullying, defined: “The practice of cyberbullying, but in person.”

        Less cyber; more cowbell.

        Reply
        1. SHG Post author

          Problem solved. And how most dictionaries define words these days.

          Cyberbullying: the act of being a cyberbully.

          Cyberbully: A person who engages in cyberbullying.

          Reply
          1. Jim Tyre

            I checked the only dictionary I consider to be authoritative, but it had no relevant definition. (The Devil’s Dictionary by Ambrose Bierce.)

            Reply
    2. Ben Robinson

      It’s theoretically possible to rely on the common meaning of a word if the common meaning is specific, unambiguous, and compatible with other applicable legal considerations like the First Amendment.

      It doesn’t seem controversial that “cyberbullying” is shorthand for “bullying using electronic communication” (although it’s still best to write into the statute, because people don’t always understand a word to mean what the dictionary says it means), but the common meaning of “bullying” doesn’t work as a legal standard because it’s subjective and includes protected speech.

      Reply
      1. SHG Post author

        You’ve tread onto dangerous turf here. Using common definitions for ancillary words in a statute is one thing, and often turns out to be a significant problem as different dictionaries define words differently and too vaguely to be of much use. But it is never the case for the elements of a crime to be defined by the dictionary.

        Even saying it’s uncontroversial to call the “cyber” prefix “using electronic means” is simplistic. If it’s words spoken on a landline telephone, which goes through an electronic system, is that “electronic means”? If you feel compelled to make people stupider, do it elsewhere.

        Reply
      2. Miles

        Jake asks a dumb question. You, whoever you are, provide a dumb answer, except your response gives the superficial appearance of being lawyerish. Jake isn’t dangerous because it’s obvious he’s got no clue. You, on the other hand, present a danger as your response is wrong but would require someone to be a lawyer to realize it.

        Reply
        1. Mike Bob

          Miles does he have to put you on a retainer for you to do more than just re-assure us he’s definitely wrong rather than actually explain why? If I am ever taken to court I hope your on opposing council, I like to have the fight stacked in my favor.

          Being Lawyerish? The term you are looking for is “Legalese.” SHG’s response is “Legalese.” Did you pass your bar exam? You know if section 2 consisted of two shots of rum you where not taking the right exam…

          So you want to use the dictionary definition of words for the justice system? OK, which dictionary? What revision? What if it’s a 1980s dictionary and doesn’t contain a definition for “Cyberbullying”? Just use the latest edition? OK, doesn’t that give the un-elected people who publish the dictionary the ability to write law?

          SHG is your comment section normally this dense? Some of the comments here are from obvious Ideologues.

          Reply
          1. SHG Post author

            My comments are often “this dense,” and nice of you to provide your first ever comment to contribute to making it even denser. Miles doesn’t owe you a comment to your liking. You, however, don’t get to comment here without a real email address, particularly when your comment contributes even less than Miles’. At least his purpose was to warn non-lawyers off believing that the comment was accurate. Yours does nothing.

            Reply
          2. Miles

            Oh dear, have I failed to fulfill your legalese entitlement? Sorry, but lawyers understand and if non-lawyers want to learn, they can go to law school. Today is not my day to teach law to the groundlings.

            Reply
    3. DaveL

      Threatening what, Jake? Threatening legal action? A boycott? Those are forms of threat, yet fully protected by the First Amendment. Conversely, several high-profile cases of “cyberbullying” have centered around neither threats nor intimidation, but mockery and degradation. So you’re left with a definition that simultaneously ensnares large swaths of constitutionally protected speech, and leaves many well-publicized examples of “cyberbullying” uncovered.

      Reply
      1. Jake

        “Threatening what, Jake?”

        A punch in the kidneys. A broken arm.

        Probably not a fresh bouquet.

        California Penal Code 442:

        A “criminal threat” is when you threaten to kill or physically harm someone and

        that person is thereby placed in a state of reasonably sustained fear for his/her safety or for the safety of his/her immediate family,

        the threat is specific and unequivocal and

        you communicate the threat verbally, in writing, or via an electronically transmitted device.

        Criminal threats can be charged whether or not you have the ability to carry out the threat…and even if you don’t actually intend to execute the threat.

        In case your next move is to point out that it makes more sense to define a threat regardless of the medium of communication, I agree. But then again, I think we do most things better on the West Coast.

        Reply
        1. SHG Post author

          It occurs to me that you’re to law what Trump is to governance. Other than that, I invoke the Skink Rule.

          Reply
            1. Jim Tyre

              Damn. Had I known you’d name a rule after a commenter, I’d have thought hard about using a catchy nym.

        2. DaveL

          The dictionary definition on which you relied said nothing about the California Penal Code definition of “criminal threat”. It’s noticeably different from the dictionary definition. So now, rather than define the elements of a crime in the statute, you want to refer to a dictionary definition, while subliminally “correcting” absurd ramifications of that definition by referring to the elements of a completely different crime defined in a completely different statute. How a judge is supposed to know when to refer to one or the other is, I suppose, an exercise you leave for later.

          Which, even after you’ve effectively turned the canons of statutory construction into an exercise in free-association, still leaves you with a law against “cyberbullying” which fails to cover many high-profile cases that defined the issue.

          Reply
  2. Rich

    Maybe the State legislature is punting the issue to the courts to define “cyberbullying”. There must be some judge who is brave enough to stand up and define cyberbullying to protect the children, like when Jar Jar took over for Padme and introduced the measure giving Palpatine the authority to create the clone army.

    Reply
      1. Appellate Squawk

        “There must be some judge who is brave enough to stand up and define cyberbullying to protect the children.” Perhaps that’s meant to be ironic, but even so, that kind of judicial bravery is exactly the problem. For instance, the Court of Appeals has been extremely brave in standing up and defining “reliable hearsay” in SORA cases as just about any piece of paper signed by a cop. To protect the children.

        Reply
            1. SHG Post author

              You’re way more cynical than I am. If there was a bad definition in there, some judge would try his damnedest to fix it, but there’s nothing here to work with. No elements. No definition. Nothing. Can any judge be that much of an asshole? Ohh.

  3. Marty

    ‘When I use a word’ Humpty Dumpty said in a rather scornful tone, ‘it means just what I choose it to mean – neither more or less’

    ‘The question is,’ said Alice, ‘whether you CAN make words mean so many different things’.

    ‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all’.

    -Lewis Carrol

    Reply
  4. Stephen J.

    It seems to me that the “cyber” prefix is a distraction. The real question is: What constitutes bullying in general when no physical presence or action can be involved?

    Some things, I think, suggest themselves, drawing on legal definitions of “harassment” that have been used in other contexts:
    – The victim of the bullying has no convenient way to shut off contact with the bully(ies) without unacceptable costs to positive social contact as well.
    – The negative messages of the bullying are regular, constant, and repetitious in content.
    – The negative messages of the bullying are personal rather than expressive of critical disagreement, or involve exhortations to the victim to harm himself/herself or remove himself/herself permanently from common social environments.
    – The bullying is deliberately externalized, inviting others to join in the bullying or deliberately isolating the victim by threatening those who provide support or positive connections.

    Put simply: You have every right to call me a schmuck. You don’t have a right to fill my Facebook inbox with 50 messages saying nothing but “SCHMUCK” for 100 lines every day for a month while encouraging all your friends to do the same and threatening all my friends if they try to help me. The line between these two extremes may not be 100% crystal clear, but the vast majority of actual cyberbullying incidents are very clearly much nearer one than the other.

    Reply
    1. SHG Post author

      You dismiss the “cyber” prefix too quickly, but it’s correct that the “bullying” prong presents the far more difficult problem. That said, the point of the post was the missing elements/definition, not an invitation for random offerings of what others think should be the definition, particularly when they can’t draw a clear line. That’s kind of the point of criminal laws, clear lines so you have notice of what’s a crime and what isn’t.

      Reply
      1. LocoYokel

        I hereby define bullying as not giving me maple-bacon flavoured ice cream every day, and cyber-bullying as not sending it to me via Amazon.

        There! A definition we can all agree on. Happy now?

        Reply
      2. Stephen J.

        Apologies for the topic hijack, though I have to admit you’ve piqued my curiosity: what about the “cyber” context of the bullying issue do you see as requiring special emphasis, beyond simply noting the medium of communication?

        Reply
        1. SHG Post author

          Not so much a matter of “special emphasis,” but a matter of the concept of “cyber” raising a number of questions on two distinct levels. First, short of a face to face verbal encounter, almost everything today involves electronic means. Print a big sign to hang up in front of the high school, “Joe’s a Dope,” and it was printed from a program on a computer and printer. Cyber?

          Then there’s the question of whether it’s direct (i.e., a twit @Joe that says “You’re a dope!!!) or indirect (i.e., a Facebook post about what a dope Joe is). Both are cyber, but have very different implications. No doubt there are many more issues that could arise as well. Between the forward motion of tech and the uses to which it’s put, it’s a never-ending cesspool of problems for the law.

          Reply
  5. David

    Why only worry about defining cyberbullying, even if you could define it, it is only a crime if you engage in “A REPEATED COURSE”. Now “repeated” it usually means several so it seems you can bully once, possibly twice but maybe not thrice?

    Another area of concern, it is not enough to just be repeated, it has to be a repeated “course”. So if you can find new ways to bully each time, you may be able to bully at will indefinitely under the statute as each new way could be a new course.

    While we are looking at the language, natural person is pretty clear, it also applies to individuals. Based upon recent supreme court rulings, could this apply to a corporation? If so then only newish ones less than 18 years old. So if you are going to bully a business, make it an old an established one.

    Reply
    1. SHG Post author

      The “natural persons” and “individuals” was bizarre as well, but what they did include pales in comparison to what they didn’t.

      Reply
  6. Stephen J.

    Out of curiosity, is there any defensible reason why the lawmakers might have chosen to leave the definition out? I am not a lawyer, so knowledgeable correction of why these hypotheses are wrong is welcomed, but a couple of possibilities do occur to me:

    – The big disadvantage of putting explicit definitions on what degree of an otherwise-permissible behaviour becomes criminal, rather than defining specific actions as criminal in themselves, is that these definitions promptly create what might be called the “I’m Not Touching You!” effect; when bullies know exactly how far they can go with any one tactic before incurring punishment, they often become very good at gaming those formal limits to inflict their torment all the same while always staying just outside the bounds of illegality. Leaving the definition ambiguous cuts off this avenue of defense for would-be bullies.

    – It can sometimes be politically easier to get a law in place that everyone can agree on first and then hammer out the definitions in practice through case-setting precedent, rather than letting the perfect be the enemy of the good and running out the clock on your window of opportunity by being unable to find an agreeable definition first. That this has political benefits for the legislators is undeniable, but it may be unreasonable to ever expect that motive not to be present.

    Reply
    1. SHG Post author

      No, there’s no defensible reason. Vagueness and overbreadth violate the due process clause of the Constitution. You could have saved yourself a lot of words and my bandwidth. Please don’t murder my bandwidth for nothing, k?

      Reply
      1. Stephen J.

        I apologize; I am longwinded by nature and was not aware you had practical limits on your blog’s usage. Thank you for the informative discussion.

        Reply
        1. Skink

          Stephen–I know you just happened upon this here SJ Hotel while traveling. At the top it says, “A Criminal Defense Blog.” It doesn’t say, “Let me teach you the basics of the Constitution.” We’re mostly lawyers–overwhelmingly so. We learned the basics of this issue the first day of our Constitutional Law class on the first day of law school. For many of us, that was a couple generations ago. Attempts to take us back to our middle school knowledge makes our brains ache. We get cranky when that happens.

          There isn’t really a practical limitation, but that might depend on what is meant by “practical.” When something practically makes our brains ache, the limit is reached.

          In spite of our condition, SHG actually answered your question, which I have reformed (that happens a lot with questions and lawyers) to read: “why did they do this?” Like SHG said:

          But there is, of course, a “point” to passing this shockingly badly written law. It enables senators to tell their constituents how much they hate cyberbullying, how much they love children, how hard they worked to craft a law to criminalize one and protect the other. And when those mean ol’ judges trash the law because of that loophole called the Constitution, it will be on their robed shoulders.

          See? In the Hotel, we dig the words in that dusty old Constitution. We don’t dig it when government-types try to jump around it when playing constituent bingo. But what really makes us sad, like wanna cry sad, is when we realize folks don’t get the the basics of what those magnificent words mean and what they protect.

          Reply
      2. B. McLeod

        But, such laws have their “progressive” purposes. Their creators can use them to screw with a few people they don’t like before the laws get thrown out. Maybe some unrepresented bad guys will even cop pleas to the undefined offenses.

        Reply
  7. Ron

    What I find most surprising about these comments is that so many non-lawyers are surprised that criminal statutes require elements, or could be “talked” away. Did they think we just pulled this stuff from our butt? Do they not realize that one of the basic requirements of law is that it provides notice of what you cannot do before you do it? I never realized this was such a difficult concept.

    Reply
    1. SHG Post author

      I’m not quite as surprised that they don’t grasp the need for a definition as I am that they would comment about it (or worse, argue the point) realizing that this is so completely uncontroversial to lawyers.

      Reply
  8. Nigel Declan

    Woe betide the prosecutor dumb enough (or, perhaps, woke enough) to be the first to try to prosecute someone for this so-called “offence”.

    Reply
  9. Zack

    It’s probably not appropriate for a judge to directly call out the legislature for its ploy here. But a reference to “critical commentary” and a footnote quoting the last two paragraphs of this post would do nicely.

    Reply
  10. JR

    Late to the game. Traveling with the wife on work trip for her. 2018 Workplace Bullying Conference in Bordeaux.

    I showed her this post and asked her to define it. Of course she just used a dictionary definition. I said fine, but what if I send an email to my state rep everytime I don’t like a bill he votes on, calling him an asshat and saying I’m tell all my friends not to vote for him again. I’m I in trouble?

    She said, if he feels intimidated, then yes.

    Great I say, it is not free speech, or addressing my government, it is all in his head and feels. So how do I know ahead of time how he will feel?

    Say gave me a dirty look and said that is why she is researcher and not a lawyer

    Reply
    1. SHG Post author

      Bordeaux is lovely this time of year. The notion that something should be a crime based not on the conduct engaged in but the feelings of the victim about the conduct is the means by which the passionate hope to craft a better world. That it’s untenable isn’t their problem.

      Reply
  11. Pingback: Judge Bludgeon rules on cyberbullying | Appellate Squawk

  12. Pingback: NY Senate and Cyberbullying, Part 2 | New York Personal Injury Law Blog

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