The Tech Herald

NY Senators argue the First Amendment is a privilege not a right

by Steve Ragan - Oct 5 2011, 13:00

Four New York State Senators, who recently released a report on cyberbullying, argued that free speech - in all its protected glory - should be viewed as a state granted privilege. They want to put further restrictions on the First Amendment, in order to protect the children.

The report, “Cyberbullying: A Report on Bullying in a Digital Age” was published in September by the Independent Democratic Conference. This group includes Democratic NY State Senators David Valesky, David Carlucci, Diane Savino, and Jeff Klein.

They propose several changes to the law, with a focus on cyberbullying, and leverage existing legal rulings, which already restrict free speech in the cases of harm, to explain why they should be accepted with little debate.

“Some pessimists have made the case that cyberbullying laws such as this one are a waste of time and money because they are reactionary rather than preventative. They may give officials the ability to charge bullies under a specific law, they say, but at that point the damage has already been done. These people have also argued that education is the most effective means for creating change...But all the Driver’s ED classes in the world have not stopped reckless driving, and awareness training alone won't put an end to cyberbullying either,” the report explains.

The paper admits that several school districts in New York are already using awareness campaigns, what the Senators want are harsher punishments and clear definitions.

“Specifically, the bill would do two things: (1) Expand the crime of stalking in the third degree to include cyberbullying; and (2) expand the crime of manslaughter in the second degree to include the emerging problem of bullycide…”

“…the bill does not require that the offender initiate the communication. Further, it clarifies that a single electronic communication can be considered a "course of action" if it is directed at a child under the age of twenty-one years and transmitted to multiple recipients - even if the child is not one of them…”

Bullycide is when a victim of cyberbullying commits suicide. Should someone be charged under the proposed amendments to stalking in the third degree, and the child kills themselves, then the amendments to manslaughter in the second degree will apply in that case.

The following is taken from the report, but written to remove the constant use of capital letters. Emphasis added by The Tech Herald.

Proponents of free speech have long argued that a society that puts people on trial for things they have written or said is no longer a truly democratic society. The power of the word has been undisputable; it has been essential to preserving democracy and, in fact, its founding premise was to preserve the exchange of ideas.

A “market place” where citizens could sort through beliefs and ideas, which best resonated with them and discard those that did not, thereby allowing for the creation of an ever-evolving, open society. Moreover, they contend that freedom of speech is a recognized as a human right under Article 19 of the Universal Declaration of Human Rights.

And yet, proponents 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. British philosopher John Stuart Mill long argued that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm from others.”

His “harm principle” was articulated in an analogy by Oliver Wendell Holmes, Jr. (1841–1935), and still holds true today: “The right to swing my fist ends where the other man’s nose begins,” or, a person’s right to free speech ends when it severely infringes upon the safety and well-being of another…

In the case of cyberbullying, the perceived protections of free speech are exactly what enable harmful speech and cruel behavior on the Internet. It is the notion that people can post anything they want, regardless of the harm it might cause another person that has perpetuated, if not created, this cyberbullying culture…

Clearly, the Senators agree with further restrictions on free speech, and seem to think that parents teaching their kids right from wrong isn’t enough. Not to mention, in many cyberbullying cases seen in the news, the parents were often unaware of what was going on.

This is why parents should always be involved with their children’s Internet and social lives. It isn’t hard, and even experts agree, all one has to do is show an interest, and the kids will feed on that.

What types of Internet-based actions would be considered cyberbullying if this legislative proposal becomes a law? The terms below are taken from the report.

Sending intimidating, threatening, obscene, and / or unsolicited emails, text messages, or other electronic communication; spamming (via email or text message) pornographic or marketing material

Hate mail (hate-inspired and oppressive harassment, based on race, ethnicity, religion, sex, gender, sexuality, socioeconomic class, and other similar reasons)

Leaving improper messages on online message boards or sending hurtful and damaging messages to others; posting malicious statements or compromising pictures of the victim on a website (“Bash Board”)

Infecting the victim’s computer with viruses or spyware; tracking the victim’s activity on the Internet, then stealing his or her identity

Flaming - such as hurtful, cruel, or intimidating messages, intended to inflame, insight, or enrage

Trolling - such as deliberately and deceitfully posting information to entice genuinely helpful people to respond (often emotionally), often done to provoke others

Outing - such as sharing another person’s secrets or embarrassing information / images online

Dissing - such as sending or posting gossip or rumors about a person to damage his / her reputation or friendships

Impersonation (pretending to be someone else and sending or posting material to get that person into trouble)

Exclusion - such as intentionally and cruelly excluding someone from an online group

“Cyberbullying is a serious problem that must be addressed for the sake of all young people and generations to come. A role exists for members at every level of society to confront the problem heads-on. Our state’s laws are the framework that define acceptable behavior within our society, and it is within that framework that legislators, such as members of the IDC, can make the biggest impact,” the report concludes.

“Social norms, which together with technology have allowed bullying behaviors to evolve into what they are today, will certainly take time to change. But together we can created a united front to compact cyberbullying and turn our society into one that embraces respect, civility, and tolerance. Cyberbullying is a unique threat, that requires unique solution. New York’s laws must be brought up to speed with the 21st century.”

So, what do you think of the proposal? Leave us a comment and let us know.

Last November, a report by Danah Boyd, a Senior Researcher at Microsoft Research and Research Assistant Professor in Media, Culture, and Communication at New York University, addressed the topic of bullying. Turns out, most kids don't see it as a such a big deal.

Those interested, can view that article here.

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