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.