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cyberbully

I’ve got a short critique up now at Cato (earlier on the topic here). Proponents styled the enactment “Grace’s Law,” after a Howard County teenager who committed suicide; here’s Radley Balko on why “Laws named after crime victims and dead people are usually a bad idea.” While I believe the courts will eventually get around to striking it down, in the mean time the law will operate to chill some online speech.

P.S. Some recent thoughts from EFF’s Hanni Fakhoury on how laws can address the problem of harassment without being speech-unfriendly.

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Prof. Lyrissa Lidsky at Prawfsblawg, in contrast to some other academics, agrees that the First Amendment needs to be taken seriously in considering proposals for “criminalizing ‘adolescent cruelty.’” Scott Greenfield is not reassured.

A House hearing last week did not go well for advocates of the speech-suppressing “Megan Meier Cyberbullying Prevention Act.” [David Kravets, Wired.com "Threat Level" via Kerr, Volokh and Greenfield]

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“…whether you want one or not.” [Zenon Evans, Reason, earlier here and here] Congress mandated in 2007 via the Cameron Gulbransen Kids Transportation Safety Act — remember, laws named after victims are usually bad laws — that the National Highway Traffic Safety Administration, or NHTSA, develop rules mandating such cameras in order to reduce the rate at which drivers backing up inadvertently run over persons behind them, sometimes their own infant family members. It delayed doing so, in part, because of the regulation’s exceedingly high cost — $2.7 billion by one estimate — and because the estimated ratio of lives saved to costs inflicted fell well below the agency’s own standardized threshold for action. Still, the text of the law forced its hand.

My Cato colleague Peter Van Doren, editor of Regulation, notes that “in this case, NHTSA was responding to its own analysis that determined (p. 143) that driver error is the major determinant of the effectiveness of backup assist technologies including cameras.” Former regulatory oversight director Cass Sunstein, at Bloomberg View, offers a view somewhat more sympathetic toward the regulation.

By making cars materially more expensive, the rule will make it harder for many poorer households without cars to graduate to car ownership. A new Urban Institute study by Rolf Pendall, Evelyn Blumenberg, and Casey Dawkins tends to reinforce the intuitively plausible notion that wage earners who succeed in acquiring cars have significantly better chances of making economic progress:

Housing voucher recipients with cars tended to live and remain in higher-opportunity neighborhoods — places with lower poverty rates, higher social status, stronger housing markets, and lower health risks. Cars are also associated with improved neighborhood satisfaction and better employment outcomes. Among Moving to Opportunity families, those with cars were twice as likely to find a job and four times as likely to remain employed.

Since poverty takes a toll in health and life expectancy, safety-enhancing mandates that drive up the price of cars have negative as well as positive health impacts.

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From Britain: “Domestic abuse involving “emotional blackmail” – but no violence – could become a criminal offense carrying a heavy jail term under tough new measures published for the first time.” [David Barrett, Telegraph]:

“Critically, its [the draft's] definition of abuse includes “controlling or coercive behavior” which would “encompass but is not limited to physical, financial, sexual, psychological or emotional abuse”.

“Controlling behavior” would also lead to criminal charges, including when a partner makes another person “subordinate”, “exploits their resources” or “deprives them of the means needed for independence”.

The offense would apply to abuse committed against any spouse, partner or former partner, regardless of gender.

As Pamela Stubbart notes at the Daily Caller, when based on purely psychological and emotional interactions and states of dependence, concepts like “control” and “coercion” are at best highly subjective affairs, inviting unpredictable legal application as well as he-said-she-said legal battles in the wake of breakups or other relationship failures. The measure would also threaten criminal liability for some speech (e.g., emotionally hurtful insults not involving threats of violence) that would often be included in definitions of free speech. Meanwhile, a ban on exploiting partners’ resources or denying partners financial independence threatens to throw a shadow of criminal liability over many marital and romantic arrangements long deemed unproblematic, whether or not egalitarian.

Barrett in the Telegraph notes that while the cross-party group of Members of Parliament who are introducing the bill do not speak for the Cameron administration, they have a record of some success at getting their ideas on domestic violence enacted into legislation. Offenses will carry a sentence of up to 14 years in prison.

Related: periodic proposals in state legislatures and elsewhere to ban “workplace bullying” (more) raise some of the same issues, as do enactments (like “Grace’s Law” in Maryland) endeavoring to ban “cyber-bullying.”

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Tech roundup

by Walter Olson on November 6, 2013

  • Far-reaching, little-discussed new regulation: Stewart Baker on NIST rules mandating cybersecurity at private enterprises [Volokh; first, second, third, fourth posts]
  • “Ominous Developments on the Internet Governance Front” [David Post]
  • “The Exaggeration Of The Cyberbullying Problem Is Harming Anti-Bullying Efforts” [Tim Cushing, TechDirt]
  • “Will California’s New Data Breach Notification Duty Stimulate Class Action Litigation?” [Glenn Lammi, WLF]
  • Some thoughts on how the law should treat domestic drones, public and private [Kenneth Anderson]
  • Privacy lawsuit against Gmail could do a lot of damage [Mike Masnick, TechDirt; Matt Powers, CEI "Open Market", parts one, two]
  • Warning: more efforts ahead from legal academia to come up with stringent liability schemes for software makers [New Republic and Lawfare]

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I’ve got a new piece at Reason.com expanding on my earlier reports on the new pilot program by which Facebook will give Maryland school officials a dedicated channel with which to seek takedown of posts and other material that in their view contributes to the problem of “cyber-bullying.” I think the program represents a disturbing step toward a wider government role as arbiter of what is allowed to be said in social media, the more so as it will be difficult or impossible to know whether takedown decisions at Facebook’s discretion are an entirely neutral application of the service’s “Community Standards” or are swayed in part by the wish to keep government bodies happy. I quote various press accounts, some affording additional insight into the existing and proposed takedown process, as well as commentary by Scott Greenfield, TechDirt, and the Daily Caller in which I’m quoted. Some additional commentary: Joy Pullmann/Heartland, Josh Blackman. More: Instalanched, thanks Glenn Reynolds.

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That’s the gist of an announcement this morning from the office of Maryland attorney general Doug Gansler, following on the passing into effect of the state’s groundbreaking “cyberbullying” law, which I criticized earlier this year. The National Association of Attorneys General (NAAG) is involved too in the Educator Escalation Channel, which will start with a pilot Maryland program. Gansler says those targeted for post takedowns will include Facebook users who are “not committing a crime… We’re not going to go after you, but we are going to take down the language off of Facebook, because there’s no redeeming societal value and it’s clearly hurting somebody.” Although the rationale is to protect Maryland juveniles from unwelcome and hurtful online communications, the initial press reports offer no indication that the Facebook users whose speech is targeted for takedown will necessarily be other Maryland juveniles.

What could possibly go wrong? I’ve got some thoughts on the question at Cato at Liberty. More: Scott Greenfield (“Facebook becomes the agent of the state. … Welcome to the start of something big.”)

Free speech roundup

by Walter Olson on August 21, 2013

  • Chicago-area bus company keeps menacing customer-critics with lawsuits [Coyote]
  • Some government officials want a say in who owns newspapers [Ira Stoll on Hartford Courant/Koch story] Using public apparatus to squelch political adversaries not exactly something new in America [David Beito on New Deal episodes]
  • Barbarity: “Saudi Court Condemns Editor to 600 Lashes With Breaks” [Bloomberg ("insulting Islam"), Volokh]
  • Scheme backed by many state AGs to roll back websites’ immunity for content posted by visitors “could singlehandedly cripple free speech online” [ACLU, earlier]
  • Attention enemies of Ken at Popehat: even if you can find your bus pass you’ll still need to withstand his cat squirt bottle [Popehat; another speech case there (censorious bell can't be unrung) and yet another (bogus DMCA notice)]
  • State law providing that persons with erased records are “deemed never to have been arrested” never meant to muzzle discussion of arrests [Eugene Volokh]
  • Nova Scotia: “cyberbullying legislation allows victims to sue” [CBC]

April 11 roundup

by Walter Olson on April 11, 2013

  • More on Maryland cyber-bullying law vs. First Amendment [Mike Masnick/TechDirt, and thanks for quote; earlier here, here]
  • Family of Trayvon Martin settles with homeowners’ association for an amount believed north of $1 million [Orlando Sentinel, earlier]
  • Best of the recent crop of commentaries on violent political terrorists of 1960s landing plum academic gigs [Michael Moynihan, Daily Beast, earlier]
  • First the New Mexico photographer case, now attorney general of Washington sues florist for not serving gay wedding [Seattle Times; earlier on Elane Photography v. Willock]
  • “‘Vexatious litigator’ is suspect in courthouse bomb threats in five states” [ABA Journal]
  • Cannon, meet moth: Ken instructs a guy at WorldNetDaily why hurt feelings don’t equal fascism [Popehat] “The Trick In Dealing With Government: Find The Grown-Up In The Room” [same]
  • A true gentleman and friend: R.I.P. veteran New York editor and publisher Truman Talley, “Mac,” who published many a standard author from Ian Fleming to Jack Kerouac to Rachel Carson to Isaac Asimov and late in his illustrious career took a flyer on a complete novice in the books that became The Litigation Explosion and The Rule of Lawyers [NYT/Legacy]

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He follows up on my criticism from yesterday:

Under the First Amendment, the government has far less power to restrict speech when it acts as a sovereign (such as when it criminally prosecutes people for their speech) than when it uses non-criminal disciplinary tools to regulate speech in its own government offices or (in certain circumstances) the public schools. …

… Maryland’s law restricts speech in society generally, by both minors and adults. The government obviously cannot rely on public school officials’ custodial and tutelary power over student speech to restrict the speech of adult non-students, much less their speech outside the schools. … The fact that speech is emotionally distressing may be a factor in whether to discipline a student for it under school rules, but it is not a justification for criminal prosecution, or even, generally speaking, a tort lawsuit. …

Activists claim bullying is an “epidemic” and a “pandemic.” But in reality, the rate of bullying has steadily diminished in the nation’s schools.

More: Mike Masnick at TechDirt criticizes the new law and kindly quotes my piece.

With a new law, Vernon County, Wisconsin has put itself at the forefront of attempts to regulate disparaging email, online chat, blogs, Facebook posts (specifically cited by one advocate at a hearing), and Twitter. The law seems to be a product of the media hype over “cyberbullying.” [Popehat, Volokh]

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Free speech roundup

by Walter Olson on May 25, 2012

  • Boilermaker union president resorts to litigation against satirical site [Levy; another case on demands for disclosure of anonymous commenters] More on ghastly NY bill to strip protection from anonymous online speech [David Kravets/Wired, Daily Caller, my take]
  • Defending people like Aaron Worthing and Patterico shouldn’t be a left-right matter [Popehat, Tapscott/Examiner, earlier] Maryland and indeed all states need stronger statutory protection against vexatious litigants [Ace of Spades] And as a longtime Charles Schwab customer I was at first distressed to find the Schwab Charitable Fund on this list, but since the fund is billed as “donor-advised” I take it some Schwab customer rather than the company itself got to choose the beneficiary;
  • “Indonesia Prosecution for Posting ‘God Doesn’t Exist’ on Facebook” [Volokh] Curious to see an argument for Euro-style hate speech laws appearing on the Liberty and Law site [David Conway]
  • “Cyberbullying and Bullying Used As Pretexts for Censorship” [Bader]
  • “EEOC: Wearing Confederate Flag T-Shirts May Be ‘Hostile Work Environment Harassment’” [Volokh, more, Bader]
  • Video on new freedom of assembly book [FedSoc]
  • Maybe Citizens United turned out so badly for the speech-suppressive side because a government lawyer was imprudently candid before the Court [Jacob Sullum, earlier on Toobin New Yorker piece]

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Teasing in social media

by Walter Olson on April 14, 2012

A study finds kids don’t share academics’ level of alarm about “cyberbullying,” and concludes that they (the kids) need their consciousness raised [Michael Aynsley, OpenFile Vancouver] And from Lenore Skenazy: “You Can Be Anti-Bullying and Still Not Buy Into New Bullying ‘Crisis’

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April 18 roundup

by Walter Olson on April 18, 2011

May 12 roundup

by Walter Olson on May 12, 2009

  • Florida: “Law firm is found liable for injuries to client who fell off a chair” [WPBF via Bernabe]
  • Monsanto, known for hardball litigation over its patented seeds, might regret taking on duPont [AmLaw Litigation Daily, earlier here and here]
  • Kenyan man sues women’s rights activists for leading sex boycott that his wife joined [Daily Nation]
  • Notice a “sign this EFCA petition” message in your Twitter stream, about the controversial card-check union bill? Better check out its bona fides [Point of Law]
  • RIAA said it was going to stop filing new cases against music downloaders, but that might depend on what the definition of new cases is [Ars Technica, AmLaw Litigation Daily]
  • EEOC guidance warns employers about violating ADA in trying to cope with H1N1 flu virus in workplace [Daniel Schwartz, Workplace Prof Blog; related, earlier]
  • Cluelessness, more than censor’s urge, might explain that ghastly bill filed by Rep. Linda Sanchez to combat “cyberbullying” by throttling online speech [Jacob Sullum; earlier here, etc.]
  • Buxom British gals claim victory after Marks & Spencer rescinds $3 surcharge on larger-size bras [AP/Idaho Statesman, The Sun via Amy Alkon]

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Although the proposed Megan Meier Cyberbullying Prevention Act would criminalize a wide range of online speech that leads to emotional distress, Rep. Linda Sanchez (D-Calif.) says we should rest assured that judges in their discretion will apply it only to nasties who are bothering our children — except that the bill is in no way limited to that type of speech. Eugene Volokh dissects (earlier here and here).

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“A Missouri mother on trial in a landmark cyberbullying case was convicted Wednesday of only three minor offenses for her role in a mean-spirited Internet hoax that apparently drove a 13-year-old girl to suicide.” Numerous critics had assailed the prosecution of Lori Drew as based on overbroad criminalization; we covered the controversy here, here, and here. (Greg Risling, AP/Buffalo News, Nov. 26).

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