Cyberbullies & Free Speech

A cyberbully, acting under the cloak of anonymity, has the potential to do grievous harm to an individual.

So what should society do about it?

A bill was recently proposed in New York State that would require website administrators to remove any comments posted on their web site by an anonymous poster unless the poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate.

The proposed bill, The Internet Protection Act (A.8688/S.6779), also would require web site administrators to have a contact number or e-mail address posted for such removal requests, clearly visible in any sections where comments are posted.

The bill is co-sponsored by two Republicans, Assemblyman Dean Murray and Sen. Thomas O’Mara. Murray says he was a target of cyberbullying during his 2010 re-election campaign. An anonymous source reportedly alleged that Murray had committed acts of violence towards his ex-wife and that his son, who was in the military at the time, was in hiding because he was being abused.

Fiddling with free speech rights is certainly tempting when one ponders the cowardly cyberbully, who intentionally uses a computer like an unseen sniper to inflict harm.  In recent years, there have been several reported cases of  teen suicides allegedly precipitated by cyberbullying.

However, history shows that efforts to protect victims often backfire as a result of unintended and unforeseen consequences.  It is not inconceivable that the Internet Protection Act could be used to further harass targets and to prevent them from speaking out about abuse for fear of reprisal.

The underlying issue is whether Americans should have the right to “publish” information anonymously and whether this right is outweighed by the target’s need to easily “out” a cyberbully.

The issue of anonymous publication was addressed by the U.S. Supreme Court in McIntyre v. Ohio Elections Comm’n, 514 U.S. 344 (1995). The Court upheld the right of a citizen to post anonymous leaflets in an election campaign. The Court said an individual may seek anonymity for reasons of fear of economic or official retaliation, concern about social ostracism or merely because s/he desires to preserve his or her privacy.  “Whatever the motivation may be…the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry,” the Court said.

Perhaps the most famous U.S. case involving freedom of the press was the 1735 trial of John Peter Zenger, a printer who refused to reveal the anonymous authors of published attacks on the Crown Governor of New York. When the Governor and his council could not discover the identity of the authors, they prosecuted Zenger for seditious libel.  Zenger’s lawyer, Alexander Hamilton, successfully argued the proposition that the truth is an absolute defense against libel. The jury returned a verdict of “not guilty.”

A bill such as the Internet Protection Act, which affects a basic American right, certainly should be weighed against the  legal avenues that currently exist to address cyberbullying.  And is this really the best, most narrowly drawn approach to the problem of cyberbullying?

Cyberbullying may include activity that falls within various federal, state or local criminal statutes, such as criminal harassment.

In 2011,  an attorney who was a senior official of a Rhode Island teachers union was criminally prosecuted and convicted of a misdemeanor charge of cyber-stalking after  he posted anonymous criticisms of a politician who was running for office. The politician lost his reelection bid and his wife testified during the trial that he suffered rising blood pressure and lost weight because of the stress of the anonymous e-mails. The teacher’s union official was fined $100.

Cyberbullying may also involve a civil issue, such as libel. A determined private party may be able to ascertain a cyberbully’s identity in a civil case through  “John Doe” subpoenas to the web site and the internet service provider.

Despite it’s problems, the proposed Internet Protection Act is reportedly supported by 23 of the 49 New York Assembly Republicans, plus one Independent and one Democrat.

The Cyberbullying Research Center defines cyberbullying as “willful and repeated harm inflicted through the use of computers, cell phones, and other electronic devices.”

 

Perception Gap Between Workplace/Youth Bullying

The trend toward criminalizing cyberbullying reflects the vast perception gap between  workplace bullying and youth bullying.

New York is considering a law to criminalize cyberbullying by teens.

In September, two New York legislators, State Senator Jeffrey D. Klein, (D-Bronx/ Westchester), and Assemblyman William Scarborough, (D-Jamaica) proposed new legislation to modernize New York’s stalking laws to include cyberbullying and to make “bullycide,” the act intentionally causing a suicide via cyberbullying, covered under manslaughter statutes. The New York bill is geared toward teens.

Society’s most serious problems are addressed in criminal statutes, wherein the prosecutor levies a charge on behalf of the “people” and the crime carries the potential of incarceration.

Meanwhile, proposed workplace anti-bullying legislation is civil in nature and the leading proposed bill, the so-called Healthy Workplace Bill (HWB),  fails to provide American workers with the same level of protection provided to workers in other industrialized countries. A civil action provides a private (individual) right of redress, including reinstatement and monetary damages.

Despite the fact the proposed HWB is anemic at best, a grassroots effort has failed since 2003 to get even one state to pass the proposed bill.  Among other things, the HWB requires targets of workplace bullying to prove malice and psychological harm, which are not required for other targets of a hostile workplace environment.  It also caps damages at $25,000 if the bullied employee is not subject to an adverse employment action, such as demotion or termination.

Where is the disconnect here?

Clearly, society has yet to recognize the serious nature of the problem of workplace bullying, which is experienced by at least one in four American workers.  Overwhelming evidence shows that workplace bullying destroys lives, careers and families.  It is every bit as devastating as other types of bullying,  causing serious physical and mental health problems up to and including bullycide.

Unlike teen bullying, workplace bullying may be used strategically by employers to get rid of employees who are without fault so the employer can downsize without paying unemployment compensation, to avoid a potential workers’ compensation claim, or to thwart a collective action by workers to improve working conditions.

A review of state laws conducted by the Cyberbullying Research Center in July 2010 found that at least 30 states have laws that include the term “electronic harassment,” and 5 states have laws that include the term “cyberbullying.” At least five have laws dealing explicitly with cyber-bullying, which a study found last year may be even harder on the victims than physical beatings or name-calling.

The authors of the proposed New York bill note that the National Crime Prevention Council reports that 43 % of all teens in the U.S. have been subjected to cyber-bullying. (That number jumps to 53% of LBGT youth.)

According to published reports, the proposed New York bill:

  •  Updates the crime of Third-Degree Stalking (a Class A Misdemeanor) to include cyber-bullying. This behavior is identified as a course of conduct using electronic communications that is likely to cause a fear of harm, or emotional distress to a person under the age of 21. An offense would be punishable by up to one year behind bars.
  •  Expands the charge of Second-Degree Manslaughter (a Class C Felony) to include bullycide. This is defined as when a person engages in cyber-bullying and intentionally causes the victim of such offense to commit suicide. If a cyber-bully’s victim commits suicide, the cyber-bully would face up to 15 years in prison.  (It is not clear whether this provision is age-limited – PGB)

Cyber-bullying, which is persistent harassment through electronic communication, has become more prevalent as technology, such as smart phones and social networking sites, makes communication easy, quick and readily accessible to teens and youth.

Note: Suffolk University law professor David C. Yamada, author of the HWB, and Gary Namie, director of the Workplace Bullying Institute, which supports the HWB, declined a request to comment about the reasons that the HWB requires targets of bullying to overcome higher hurdles of proof compared to other countries – PGB.

“Cyber-Bullying” Charge is Excuse to Downsize

by PGB

The National Labor Relations Board recently issued the first decision by a Board Administrative Law Judge involving employee use of social media, finding parallels between postings on Facebook and gripes around the proverbial “water cooler.”

In Hispanics United of Buffalo, Inc., Administrative Law Judge Arthur J. Amchan noted the employer conceded that it would have  fired the five employees in question if their activity had taken place around the water cooler.

“Thus, the only substantive issue in this case …. is whether by their postings on Facebook, the five employees engaged in activity protected by the Act. I conclude that their Facebook communications with each other, in reaction to a co-worker’s criticisms of the manner in which HUB employees performed their jobs, are protected.”

On September 6, 2011, Judge Amchan ordered the fired employees reinstated with back pay.

Here’s the scenario:

Lydia Cruz-Moore, an employee of HUB, a non-profit organization that provides social services to the poor in Buffalo, NY, was repeatedly critical of the level of service provided by her co-workers, whom she accused of slacking off.  She threatened to complain to the program director.

One of her co-workers initiated a Facebook discussion asking for responses  to  Cruz-Moore’s criticism. Five employees joined in the discussion,  and in the process made sarcastic and derogatory comments about Cruz-Moore and the expectations of  HUB’s clientele.

Cruz-Moore sent a text message to HUB’s Executive Director Lourdes Iglesias saying the Facebook posts constituted “cyber-bullying.”  Iglesias summarily fired the five employees involved in the Facebook discussion on the grounds that their comments violated  HUB’s “zero-tolerance” harassment policy.  She also told the fired employees that their comments caused Cruz-Moore to suffer a heart attack.

Amchan completely discounts Iglesias’ stated reasons for the terminations, finding that HUB was seeking to downsize and “seized upon the Facebook posts as an excuse for doing so.”

He concluded  the Facebook discussion was concerted protected activity under the National Labor Relations Act because the discussion involved the terms and conditions of employment, specifically, job performance and staffing levels. He rejected as irrelevant the argument that the Facebook postings were not protected because persons other than HUB employees may have seem them.

Amchan also notes the Facebook posts were not made at work or during working hours and were not critical of HUB. He said HUB failed to establish for the record that Cruz-Moore had a heart attack or that there was any relationship between her health conditions and the Facebook posts. Also, he said, HUB failed to show that the employees violated any specific policies or rules.

Amchan said the fired employees “were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management.”

By discharging all of the employees on the same day, Amchan said, “Respondent prevented them by taking any further group action vis-à-vis Cruz-Moore’s criticisms. Moreover, the fact that Respondent lumped (them) together in terminating them, establishes that Respondent viewed the five as a group and that their activity was concerted”

The case, which is numbered 3-CA-2787, is the first  involving Facebook to have resulted in an ALJ decision following a hearing. Hispanics United has the right to appeal the decision to the Board in Washington.

This NLRB has broad jurisdiction to enforce the NLRA, which covers both union and non-union employers, and both for-profit and non-profit employers in some cases.