A Quasi-Correction On Undefined Cyberbullying

After ripping to shreds the New York Senate’s cyberbullying law for the omission of a definition, Eugene Volokh queried whether we missed something significant.

Eugene Volokh points out (via email) that there is a definition of cyberbullying on the books in New York state. The bill does not reference it, however. This bill appends Section 12a to Section 12, which is part of the state’s consolidated education law. Section 12 says “no student will be subjected to harassment or bullying by employees or students on school property or at a school function.” There’s still no definition here of bullying or cyberbullying, nor is there anything pointing to the state’s definition of these terms. To find a definition, readers must look to Section 11 (again, not mentioned anywhere in the new bill), which is another part of the state’s education laws.

And indeed, there is a section of the Education Law that provides what could generously be called a definition.

“Harassment” and “bullying” shall mean 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.

As Eugene goes on to note, the “definition” goes deep into speech protected by the First Amendment, which was why the New York Court of Appeals held Albany County’s effort unconstitutional in Marquan M. But how did two old New York lawyers, Eric Turkewitz and yours truly, completely miss the “definition” of cyberbullying in Section 11?

Had it been the Senate’s intent to borrow the definition from another section of the Education Law to create its new crime, and, indeed, to establish the basic elements of the offense as would be minimally necessary for a crime to pass constitutional muster, there should have been a reference in the new crime to the definition upon which it relies. This is how New York laws are drafted, how a criminal offense is framed as to contain the bare minimum required to establish the elements of the offense.

It never occurred to Turk or me that there would be a New York law devoid of a definition or elements which would leave it to us to go searching the laws to figure out whether there was some definition, something to establish the elements of the offense, lurking in the darkness somewhere else. You don’t do that. You don’t create a crime and omit either the definition or an express reference back to the section setting forth the definition upon which the legislators relied.

The “definition” set forth in Section 11 is the sort of vague and meaningless gibberish proffered as a salutary message to the parents whose kids are bullied. It’s a message to schools that bullying is bad and should be stopped. It’s a message that’s all-encompassing, meant to cover anything that might happen in a school between student peers and their teachers that would create an environment that puts physical and emotional safety at risk. For the purposes of sending the message that cyberbullying is wrong and shouldn’t be tolerated, its overbreadth and vagueness might be understandable.

For the purpose of establishing an offense for which someone could be jailed, on the other hand, the definition is worthless.  What conduct is criminalized?

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.

So pretty much anything that the recipient of the “threats, intimidation or abuse” considers hurtful? But not limited to? Vagaries upon vagaries? Well, that certainly puts a chill in the air, in that anything that could conceivably be “perceived” as offensive constitutes the crime.

Eugene was right to point out that while there was no definition in the Senate’s new statute, there was a definition to be found elsewhere. And this demands a correction to my criticism that the bill is devoid of definition. That the Senate didn’t bother to include an express reference to the definition in its crime is a glaring omission, which can be chalked up to lazy drafting, if indeed it was their intention to rely on the existing definition of cyberbullying in Section 11.

So while I stand corrected, the Senate doesn’t get a heartfelt apology for my maligning their efforts. If Eugene is right, there should have been a reference to the definition in the new law. And if that’s the definition upon which the Senate relies, then the bill is flagrantly unconstitutional as being in violation of the First Amendment, as being vague and overbroad and as lacking anything remotely resembling elements sufficient to constitute an offense. So sorry, Senate. But not very sorry.

17 comments on “A Quasi-Correction On Undefined Cyberbullying

  1. B. McLeod

    It isn’t a definition of “cyberbullying.” It just uses the still-undefined term “cyberbullying” as an included subclass of “bullying” or “harassment.” Maybe one could make the leap that “cyberbullying” is “bullying” or “harassment” done via cyber. I suppose if a student Tweets that she is worth her weight in gold and another student (verbally or non-verbally) indicates disagreement by cyber means (whatever cyber means means), there you have it. Off to the gulag with the cyberbullier!!

    Reply
    1. SHG Post author

      But what are they supposed to do when expected to define the undefinable, other than to wrap it in meaningless verbiage to give create the appearance of meaning where none exists?

      Reply
      1. B. McLeod

        Well, they know what they mean. They are the Word and Thought Police, and are here to legally enforce their concept of good manners. National Lampoon will eventually be able to market its “Politenessman” character as a major superhero. Even the mighty Black Panther may ultimately have to add the steel handkerchief to his arsenal.

        Reply
        1. LocoYokel

          That brings up a thought. Is the Miss Manners column still around, and if so is it still written by the same woman? I’d love to see her response to some of these notions of “civility” that are floating around today.

          Reply
    2. LocoYokel

      ” I suppose if a student Tweets that she is worth her weight in gold”

      I believe that the correct bullying response here would be

      “That’d be a whole lotta gold.”

      Reply
      1. B. McLeod

        Well, anything remotely bearing on weight could tip the scale. Even a reference to “Advanced Stick-Fighting,” by Calista Flockhart and Amal Clooney.

        Reply
  2. Jake

    “It never occurred to Turk or me that there would be a New York law devoid of a definition or elements which would leave it to us to go searching the laws to figure out whether there was some definition, something to establish the elements of the offense, lurking in the darkness somewhere else.”

    Of course, it did occur to one of your commenters, albeit in the most non-lawyerly way. But the leap was made, right here in the comments at SJ, in black and white for everyone to see.

    Reply
    1. SHG Post author

      That commenter was completely wrong, and now doubly wrong for thinking that he might not have been completely wrong in the first place. And still I like him, even though Ima trash his going further down this path should he even try it.

      Reply
  3. Anonymous Coward

    It’s astonishing that the people writing laws seem to be ignorant about law. What makes it worse is that a large percentage of politicians are lawyers and should know better, or at least have the ability to learn.

    Reply
    1. SHG Post author

      Even worse, they have staff to do the heavy lifting, though in fairness, the staff is usually the idiot nephew of a donor.

      Reply
  4. Matt G Brown

    I, not being a lawyer, have a solution to this problem of missing or vague definitions: you just humpty it up. What’s that, you say? You take a group of academics, have them write every word that they think of when they think of the definition on a sheet of paper, and draw an egg shape on the paper. Anything inside the line is part of the definition.

    It has several advantages. It’s recursive, so if some of the terms that result are ambiguous, just humpty them up. And it’s fully sustainable. You may run out of paper, or words, but you’ll never run out of academics.

    Reply
  5. losingtrader

    But how did two old New York lawyers, Eric Turkewitz and yours truly, completely miss the “definition” of cyberbullying in Section 11?

    OLD.

    Reply
    1. Jim Majkowski

      Perhaps because Section 11’s first sentence is, “For the purposes of this article, the following terms shall have the following meanings:” I’ve never seen a statutory definition that was not limited in scope. They probably never have, either.

      Reply
    2. SHG Post author

      There are certain norms in how statutes are written and interpreted that lawyers look for, one of which is that the statute which criminalizes conduct provides its definition for the conduct being criminalized. I have doubts whether reference back to Sec. 11 would work regardless, as a non-crim definition can’t push its way into a criminal law when the criminal law doesn’t expressly reference it.

      Or in other words, that’s not how it’s supposed to work.

      Reply

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