January 29th, 2019

Is the NYS Senate Restricting Your Speech?

I stumbled across this story quite by accident. The New York Legislature is in session and a flurry of bills are being passed. And I happened to look one of them up.

This post, however, isn’t about the bill but about the Senate’s website. Specifically, there is a comment section for the bills being proposed and passed, and that comment section has restrictions.

Restrictions? Yeah, you read that right. This is a website devoted to public policy, owned and operated as the official arm of the Senate, and it restricts what you can say relative to those policy issues. It restricts open debate, which any semi-conscious high school student will tell you runs headlong into the First Amendment.

The offending rules for the comments includes the completely subjective “hate speech,” about which there is no accepted definition, as well as things that are “off topic,” or profanity.

These are the comment rules that you can see near the bottom of any page that shows the status of bills, with a few highlights that I added:

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published.

But who decides what is off-topic? One need not be a long time denizen of cyberspace to see that many people think their comments are on topic while others think they’re off.

And what is profane? Are people restricted to George Carlin’s seven dirty words or is there some other list for people to consult? Is it my list or your list and what happens when one of our lists changes? And what happens if someone simply wants to write, “Fuck this bill“? You know what? The Supreme Court has already decided that this sort of profanity is protected speech. (Cohen v. California)

What is campaign-related if you object to a bill and its sponsors and think they should be tossed out of office on their ears for having proposed such fool-hardy nonsense?

Is it self-promotional if you give a personal story of what horror you think may befall your company if the bill is passed? Can you name your company?

And, most importantly, who is the gatekeeper for what people are permitted to say to their Senators via these comments?

I’m willing to bet that no legislator has ever given a thought to the comments section as it’s rarely used by my observation. But it’s prohibitions on speech seem to present clear First Amendment issues, making this a problem waiting to happen.

 

July 5th, 2018

Are Democrats Losing the First Amendment?

If Democrats aren’t careful they risk surrendering a core American value to conservatives.

I don’t usually write about partisan politics, because if I did I would never stop, but in this case it deals with the First Amendment.

By way of background, it seems that liberals lost the use of the American flag as conservatives appropriated it as their own. This, no doubt, began in the 1960s when antiwar protesters started burning it.  Liberals have struggled to recover.

Stephen Colbert built an entire satiric show around the concept that waving the flag somehow meant that you were patriotic — while ignoring the values that the flag stands for.

A similar battle is now taking place regarding another potent American symbol, the national anthem.

We may now be seeing yet another version with a battle over the First Amendment. The New York Times decided, in a fit of epic stupidity, to highlight that right wing nut job conspiracy theory propagator Alex Jones hired noted First Amendment attorneys Marc Randazza and Jay Wolman to defend him in a defamation suit from the parents of Sandy Hook massacre victims.  Crackpot Jones claimed the massacre was a hoax.

This is what we lawyers like to call in legalese, logical. Because if you have a First Amendment problem you’re not going to hire a matrimonial or real estate attorney. When I was sued for defamation the first time, in the infamous Rakofsky case, I was part of a large group of lawyers who hired Randazza. There was a damn good reason for it.

But no, the Times decided to highlight the fact that Randazza also represents a Nazi in one of his other First Amendment defenses. Note to the Times, which should know better:  If you’re going to represent free speech issues you are not likely to be representing the late Mr. Rogers and his neighborhood. You will sometimes defend people out on the fringes of society, many of whom are widely detested. Benign language that the majority loves isn’t where free speech battles are fought.

This article was a follow-up to an Adam Liptak article in the Times about the First Amendment being “weaponized” by the right.

Lets be clear:   The First Amendment is not an issue of the left or the right, as all people benefit from its protections.  Those who defend the First Amendment firmly believe that an infringement upon it is an infringement upon everybody’s rights, regardless of whether you come from the left or the right. Lawyers that defend free speech are not really defending the speaker. They’re defending the constitution.

This is not to say that the Democrats are the only fools in this battle over American symbols. The Republicans, for example, have lost the Statue of Liberty as they elevate bigotry over the statue’s central message.  Why it is that Democrats have not created a flag with the torch of liberty to constantly wave remains a mystery to me. This will haunt the GOP for decades to come.  That issue was a gift to Democrats, just as surely as the burning of American flags was an inadvertent gift to Republicans.

And so, dear New York Times, don’t be so quick to make the First Amendment a battleground of partisanship, the way it has for the flag, anthem and statue. It will not end well for those who believe in free speech. And that doesn’t just mean not ending well for you as a major media outlet, but for all Americans.

 

June 14th, 2018

NY Senate Passes 2nd Bill in 2 Weeks Restricting Free Speech

Dear NY Senate:

What the heck is going on up there in Albany? Last week you passed an anti-cyberbullying bill that restricts free speech and conduct in such a way that, if ultimately signed, is guaranteed to be tossed into the trash heap by courts because it violates the First Amendment.

And this week you do it again?! This time with your Elder Abuse Bill (S.409) that makes it a crime for caregivers (including family) to post photos on social media if elderly, vulnerable seniors aren’t able to give consent.

Now I understand it might have made you feel good to pass such a bill, and you get to boast to constituents that you are doing something in Albany, but do you realize what you have really done?

For the benefit of those who voted for the bill but didn’t read it, this is what is made into a misdemeanor:

A  PERSON IS GUILTY OF UNLAWFUL POSTING OF A VULNERABLE ELDERLY PERSON ON SOCIAL MEDIA WHEN, BEING A CAREGIVER WHILE PERFORMING THEIR  DUTY  OF CARE  FOR A VULNERABLE ELDERLY PERSON, HE OR SHE POSTS AN IMAGE OR VIDEO OF SUCH PERSON ON SOCIAL MEDIA INCLUDING, BUT NOT LIMITED  TO  FACEBOOK, YOUTUBE,  TWITTER, INSTAGRAM, SNAPCHAT, TUMBLR, FLICKR AND VINE, WITHOUT SUCH PERSON’S CONSENT.

First off, while the First Amendment says that Congress “shall make no law…abridging the freedom of speech,” and the amendment applies to the states, there are still some very limited exceptions to it. But this just isn’t one of them.

The First Amendment is no defense to conspiracy discussions about committing a crime, or defamation, or inciting imminent lawless action, or obscenity or copyright.

I don’t see posting pictures of elderly Ma or Pa on that list. For this bill, if signed, to pass constitutional muster, the Supreme Court would have to create a wholly new category of restricted speech. Do you think they will do that? Or more importantly, did you even analyze that?

My guess is no since this bill passed 61-0, and there are more than a few lawyers in the Senate.

So, let’s say, on disabled Ma’s birthday you (a caregiver) hold a party for her, even though she can only semi-appreciate it. Then you share those party photos on Facebook for your friends and non-attending family members. Guilty of a misdemeanor.

You should note that the bill doesn’t clearly say when the photos had to be taken. It’s a crime if just three conditions are met: that the subject of the picture is a “vulnerable elderly person,” that the person sharing it is a caregiver, and that the sharing is “without such person’s consent.”

So let’s say that on Veteran’s Day you share a photo of your disabled WW II father for whom you sometimes care. He’s 20 years old in that long-ago-taken pic and in uniform. You are proud of his service (as was he) as part of the Greatest Generation. Guilty of a misdemeanor.

And the same is true for sharing any other photo for such people taken during their lifetimes: From childhood, parties, weddings (including their own), vacations, anything you can think of.

Since New York has about 20 million people, do you appreciate the scale of how many misdemeanors are being created for sharing a photo of a disable loved one? Even if the Supreme Court did create a new category of restricted speech for this, the bill is both vague and over broad.

If this was a new category of restricted speech — you can’t post photos of incapacitated people without their consent — then the slippery slope also says it is OK to criminalize the posting of photos of other incapacitated people. Like kids. How many kid pictures are shared on social media?

The justification for this bill is that the posting of photos of disabled elderly people has become a problem:

Recent media reports have highlighted occurrences of a caretaker
taking unauthorized photographs or video recordings of a vulnerable
elderly person, sometimes in compromised positions. The photographs
are then posted on social media networks, or sent through multimedia
messages. Such action, dehumanize individuals and create an
environment that perpetuates a disrespectful and/or potentially
abusive attitude. Caretakers are required to provide care and services
in an environment that all individuals are treated as human beings.

How big is this problem that you think it justifies a change in the First Amendment that affects millions of people sharing loving photos of their elderly parents?

 

June 12th, 2018

NY Senate and Cyberbullying, Part 2

Last week I saw a tweet come into my feed from the NY Senate about the 56-0 passing of a cyberbullying bill. I quickly knocked out a post ripping it for two reasons: The complete lack of a definition and the fact that it violated the First Amendment.

That post was picked up by Scott Greenfield.  Then Greenfield’s post was seen by Tim Cushing at Techdirt. Which in turn was seen by Eugene Volokh. A little old school blogging as people added thoughts.

Now I have more to add: The first being a semi-correction that includes some  additional criticism of the Senate. But the second is some actual praise.

First, as Volokh pointed out, the bill was an amendment to the Education Law, and the Education Law has an existing definition of cyberbullying that is defined elsewhere. The first of the Senate’s failings was the lack of a reference to that definition section.

That lack of a reference, Greenfield points out today in likewise doing a second post on the subject, threw us both off as this isn’t the way New York usually drafts its statutes. As Greenfield notes:

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.

This failure of form, hoping for an implicit reference to the definitions section that exists elsewhere, is the lesser of the two problems. Because that existing definition is so chock full of vagaries as to render it unconstitutional as a criminal statute. These are the provisions (as originally made into law for school administrative purposes, not criminal purposes):

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.

So let’s say that Student A passes Student B in the hall. A smiles at B. Then A texts to B, “I’ll see you on the playground at lunch!”

Are they friends? Enemies? Was A flirting with B? Threatening B? Does A simply want to hang out with B? Should B be afraid? Enthralled? Bored to tears?

Would this conduct and speech “reasonably be expected to cause a student to fear for his or her physical safety?”

Would this conduct and speech, unreasonably and substantially interfere with a student’s educational performance, opportunities or benefits, or mental, emotional or physical well-being?

Who the hell knows?

And if you can’t figure out whether something is a crime or not, then the law is vague. And it is likewise over broad as it will sweep up into its net perfectly innocent conduct and speech.

But there is another part to this posting. And that part is praise.

The praise is not for the bill, but for the Senate’s use of Twitter to quickly and cheaply disseminate information in an easily accessible form to the public.

For all the howling and caterwauling about how bad Twitter is, filled with bots, trolls, and those who think they will somehow “win” arguments and “own” their opponent, the one thing it is particularly good at is the rapid dissemination of information by public bodies.

That is how I easily found the bill’s Senate passage, and that is what allows us to publicly debate it’s merits.

So. The bill itself gets an F, but the Senate’s information distribution gets an A+.

 

 

June 4th, 2018

New York’s New and Improved (?) “Anti-Cyberbullying” Bill

It’s known in the New York Senate as Bill S2318. And it passed the Senate unanimously yesterday, by a vote of 56-0. Must be pretty good, huh? Unanimous!!!

It’s an anti-cyberbullying bill and who would ever want to be against something like that! I mean, bullying is bad, cyber or not, right?

Just one teensy little problem seems to have escaped the drafters, however. This “cyber-bullying” that they wish to make a misdemeanor has a flaw. I’m almost embarrassed to mention it, but here goes.

Cyber-bullying doesn’t seem to have a definition.

Here’s the entire pertinent text:

 S 12-A. CYBERBULLYING. 
1. AS USED IN THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
A.  MINOR SHALL MEAN ANY NATURAL PERSON OR INDIVIDUAL UNDER THE AGE OF EIGHTEEN.
B. PERSON SHALL MEAN ANY NATURAL PERSON OR INDIVIDUAL.

2. ANY PERSON WHO KNOWINGLY ENGAGES IN A REPEATED COURSE OF  CYBERBUL-BULLYING OF A MINOR SHALL BE GUILTY OF AN UNCLASSIFIED MISDEMEANOR PUNISHABLE  BY  A FINE OF NOT MORE THAN ONE THOUSAND DOLLARS, OR BY A PERIOD OF IMPRISONMENT NOT TO EXCEED ONE YEAR, OR BY BOTH SUCH FINE  AND  IMPRISONMENT.

There is, of course, lots of conduct that we can all agree is bullying, right?  A kid gets taunted by classmates for his less-than-personal personality, and it’s a no-brainer, right?

Well, almost right. I mean, friends do this kind of stuff to their good buddies after all.  It isn’t just for enemies.

But still, let’s say it is an “enemy” of sorts — two kids that actually hate each other. How do they know where the line in the sand is located as to what is legitimate and what isn’t?

So if Kid A wants to say that Kid B’s support of Trump is “idiotic” or “moronic,” or that Kid B seems to be a clueless asshat for believing what s/he believes, would that conduct, if done online, be cyber-bullying? How about if it didn’t involve politics at all, and was purely personal?

Don’t we have a right to call each other schmucks?

The lack of an adequate definition is an obvious problem, and one that is already known to New York because our top court struck down such a bill in 2014 in People v. Marquan M. — and that bill actually attempted a definition:

  1. “any act of communicating … by mechanical or electronic means,”
    • “including posting statements on the internet or through a computer or email network,”
    • “disseminating embarrassing or sexually explicit photographs;”
    • “disseminating private, personal, false or sexual information,”
    • “or sending hate mail,”
  2. ”with no legitimate private, personal, or public purpose,”
  3. “with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.”

How, exactly, is a person to know if their conduct/speech is a problem if there’s no definition? We lawyers like to call such statutes vague or overbroad. They either don’t tell you exactly what conduct is criminal (vague) or they word the statute so broadly it sweeps perfectly constitutional conduct into its orbit of criminal conduct.

And now we have version 2.0 of a bill with no definition, and this is supposed to be better than version 1.0?

Since the matter was covered by Eugene Volokh back in 2014 when its first iteration was deep-sixed by the Court of Appeals, I feel no need to re-write what he already tapped out on his keyboard. You can read it here:  New York’s highest court strikes down cyber-bullying law

It was likewise covered by Scott Greenfield:  NY Court of Appeals Holds Cyberbullying Law Unconstitutional

And there’s a Syracuse Law Review article on the subject.  And the NY Civil Liberties Union.

And, for the legislators that might not want to read the works of lawyers, there’s even a Wikipedia entry for the case.

There is no point passing version 2.0 of a law that will one day be ruled unconstitutional.

I know it may look good to constituents to say  “We are trying to do something!”, but it would be nicer to see at least a couple of folks say, “I’m not going to waste the taxpayer’s money with a bill that most surely will end out on the trash heap.

Updated 6/12/18: NY Senate and Cyber-Bullying, Part 2