A new law proposed last week by County Executive Mike Hein would punish so-called “cyberbullies” with fines and possibly jail time if convicted of spreading personal information or making hurtful comments about minors on social media and other electronic platforms.
Advocates say the law is needed to address the serious and growing problem of online harassment that can cause lasting mental-health harm to children. But civil liberties advocates say the proposal would criminalize speech and could lead to unintended negative consequences.
Hein unveiled the legislative proposal at a press conference to announce “No Name-Calling Week,” an annual event to raise awareness of youth bullying and its consequences. The county law would make a number of bullying behaviors, if perpetrated via the Internet, text message or other electronic platforms, a misdemeanor crime punishable by fines up to $1,000 and up to a year in county jail. The banned behaviors include transmitting “information not of public concern and the actor knows or reasonably should know that such communication will inflict emotional harm on the minor.” The law also punishes the transmission of “private sexual information” — whether true or false — about a minor, as well as appropriating a minor’s name or likeness online or posting explicit photos of minors.
According to the statement of “legislative intent” included with the law, the proposal is intended to address a range of behaviors, from online rumor spreading to “sexting,” that have become a dismayingly common part of the middle and high school experience.
“It’s important that we begin to address the concept of cyberbullying and for government
to begin to catch up to the technology,” said Hein. “When you hear from families whose children have been brought to the brink of suicide [by cyberbullying] it’s very hard to sit back and do nothing.”
Vanessa Shelmandine, program director of the LGBTQ Center of the Hudson Valley, said her group supported passage of the new law, in part because cyberbullying disproportionately impacts youth who are or are perceived to be gay or transgender. Shelmandine said the proposed law would offer cyberbullying victims and their families the same recourse available to victims of physical violence or intimidation.
“If we were witnessing physical violence we would immediately intervene and there would be recourse and an opportunity for restorative justice,” said Shelmandine. “This creates a mechanism to ensure that there’s a complete investigation, that there are means of recourse for the victim and rehabilitation for the minor who’s engaging in cyber-bullying behavior.”
First Amendment concerns
But Shannon Wong, director of the Lower Hudson Valley chapter of the New York Civil Liberties Union, said Hein’s proposal is a well-meaning but misguided solution to a serious problem. Wong said portions of the law appear to criminalize speech in a way that violates the First Amendment to the U.S. Constitution. Wong said all forms of bullying were best addressed through education and clear school-based policies. Wong pointed to New York’s Dignity for All Students Act, which prohibits harassment and mandates schools develop anti-bullying policies and programs as an example of an approach to the problem that doesn’t infringe on free speech. Wong said NYCLU attorneys could help the county come up with a less heavy-handed alternative.
“Our lawyers will be looking at it,” said Wong. “And the hope is that working cooperatively we can craft something that meets the county’s needs while respecting the First Amendment.”
The statement of legislative intent addresses concerns about free speech by arguing that the law is “simply punishing those whose actions are aimed to inflict emotional injury on a minor.” The statement also contends that the law is “narrowly tailored” to avoid restricting speech on “matters of public concern,” as defined by the U.S. Supreme Court. Shelmandine said she believes the law was designed to address the “most severe” forms of cyberbullying and offer a remedy in cases where school officials feel unable to address a situation, or when victims’ families believe the situation warrants a stronger response than schools can provide.
But Victoria McLaren, interim superintendent of the Onteora Central School District, said she had concerns about the law and its impact on schools. McLaren said she planned to ask Hein about several aspects of the law when he meets with school officials later this month to discuss the proposal. She added that currently, Onteora administers an anti-bullying policy that covers online harassment. School officials, she said, are empowered to act whenever bullying has an impact in school, regardless of where the events took place; penalties can include suspension or expulsion.
McLaren said she welcomes additional resources to address cyberbullying. But, she said, she has questions about how the law would be implemented and whether it would replace an in-house disciplinary process that takes into account a variety of factors, including a student’s history and individual circumstances, before meting out punishment.
“Will this be an additional consequence, or will it supersede what we do in school?” said McLaren. “There are a lot of questions that I would like to see answered about how this is going to be implemented and how it will impact what we do.”
Hein said this week the law was designed to “dovetail” with existing school based anti-bullying protocols. He also left the door open for changes that could address the concerns of civil liberties advocates and school officials.
“This is just the foundation,” said Hein. “I expect it to be debated and changed many times as we get more input from stakeholders.”