Michigan Bill Links Bullying & Crime

singsingA lawmaker has introduced a proposed bill in Michigan that would make bullying and cyberbullying a misdemeanor criminal offense punishable by a fine of up to $1,000 and a jail term of up to 93 days.

Republican State Rep.  Dale W. Zorn’s bill also would permit a judge to require an individual who is convicted of or found responsible for violating the anti-bullying law to “undergo an evaluation by a mental health professional at his or her own expense and to receive counseling or other treatment at his or her own expense if determined appropriate by the court.”

 Rep. Zorn’s proposal is one of  the first if not the first proposed bill in the United States to link bullying with crime and mental health. Other proposed legislation in the U.S. is civil  (non-criminal) in nature and seeks monetary damages and/or injunctive relief.

Zorn’s proposed bill addresses both school and workplace bullying. 

 There is precedent elsewhere for treating workplace bullying as a crime. Lawmakers in Victoria, Australia adopted an anti-bullying law known as “Brodie’s Law “that took effect in June 2011 and makes stalking related to bullying a crime punishable by up to 10 years in jail. 

Brodie’s Law was passed after the suicide of Brodie Panlock, 19, a waitress who was subjected to relentless bullying in the workplace. Four co-workers were fined a total of $355,000 (Australian) in 2010 but Ms. Panlock’s parents felt the fine was a slap on the wrist and lobbied for criminal sanctions.

Zorn says Michigan House bill No. 4746 is intended to encourage the rehabilitation of bullies by offering an option for mental health counseling at the judge’s discretion and the bully’s expense. The criminal  charge could be expunged or wiped from the defendant’s criminal record upon successful completion of treatment.

 “The  behavior of bullying has become a societal problem that may need to be eradicated through professional counseling,” he said.

The bill likely would face challenges with respect to the First Amendment to the U.S. Constitution, even though it specifically exempts speech that is protected by federal and state law.

 The bill defines “bully” to mean engaging in one or more of the following behaviors on two or more separate occasions with the intent to frighten, intimidate or harass another person:

     (i) Assaulting or battering that other person.

     (ii) Referring to that other person while in his or her presence with a derogatory or offensive nickname or label.

     (iii) Disseminating false or misleading information about that other person.

It is not clear why the bill prohibits derogatory  or offensive speech in the presence of the individual, but not in the individual’s absence.

In a press release, Zorn said he arrived a the definition of bullying after meeting with school administrators, students, parents, prosecutors and judges.

The bill was immediately referred to the Michigan House Judiciary Committee. 

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.”

 

U.S. Supreme Court Hides Behind Anonymity

The Revolution Won’t be Televised

A while back, I noted the U.S. Supreme Court has done more than it’s fair share to contribute to the divide between the “haves” and the “have nots” in our society.

The President and the U.S. Congress receive much of the blame in the “one percent v. 99 percent” debate because they can be seen sweating under the glare of the television spotlight. They can be held accountable. But the nation’s highest Court conveniently refuses to allow its proceedings to be televised.

Now the Court has issued a press release that makes it clear it will not allow television cameras when it hears arguments on President Obama’s health care law, the Patient Protection and Affordable Care Act, on March 26, 27, and 28.  The law  is being challenged by 26 states and the National Federation of Independent Business. Instead, the Court will provide the audio recordings and transcripts of the oral arguments on the Court’s website, www.supremecourt.gov.

The audio recordings and transcripts undoubtedly will be of interest to a few law students and historians but most people today “watch” their news on television or the Internet. Refusing to be televised is akin to insisting in 1440 that the bible be penned in ink by monks, longhand, rather than printed on the newfangled Gutenberg printing press.

A USA TODAY/Gallup Poll found that 72% of the people surveyed think the Court should allow cameras to televise oral arguments on the health care law.

Many Americans are dismayed by the tawdry spectacle of the on-going Presidential race – which is infused with money funneled through superpacs from foreign countries and their lobbyists.  How many know that this is the direct result of the Court’s 5-4 decision in Citizens United v. Federal Election Commission, 558 U.S. 08-205 (2010), which held that corporate funding of “independent” political broadcasts in elections is protected speech under the First Amendment?  Many on both sides of the political aisle believe the Citizens United ruling is literally one of the worst rulings in history and reflects a Court that is sadly out of touch with reality.

Could the Court be unaware of the deleterious effect of the Citizen’s United ruling on our country?  One could make a compelling argument that televising court proceedings would not only be good for America but also for the  U.S. Supreme Court.