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CO cyberbullying bill criminalizes protected speech

Posted by Richard on March 27, 2014

UCLA law professor Eugene Volokh (of The Volokh Conspiracy) and Mike Kraus of the Independence Institute have called on the Colorado Senate (originally published in the Denver Post) to kill a cyberbullying bill that has passed the Colorado House:

On March 12, the Colorado House passed House Bill 1131, on “cyberbullying of a minor.”

While undoubtedly well-intended, the bill as written is an unconstitutional restriction on protected speech, and should be swiftly dispatched by the Colorado Senate.

The bill would criminalize using social media in a way intended to “cause the minor to suffer serious emotional distress, or makes a credible threat against a minor that the actor knows or reasonably should know will be communicated to or viewed by the minor, commits cyberbullying if the conduct results in serious emotional distress to the minor.”

Now the punishment for making credible threats seems quite sensible. Such threats are constitutionally unprotected, and should indeed be punished. But the ban on intentionally causing “serious emotional distress” to a minor is far broader, and runs afoul of the First Amendment.

Volokh and Kraus suggested several examples of speech that would be criminalized by this bill, but is protected by the First Amendment.

HB14-1131 (PDF) was introduced by Rep. Rhonda Fields, one of the legislature’s leading advocates of gun control. I can understand (but not excuse) her antipathy to guns; in 2005, her son and his fiancee were assassinated to prevent him from testifying against the murderer of his best friend. But Rep. Fields apparently is no more concerned with upholding the First Amendment than she is with the Second.

The examples given by Volokh and Kraus are of well-intentioned speech that would be criminalized. But even ill-intentioned, hateful speech — if it doesn’t involve making a credible threat — is protected by the First Amendment. Posting “everyone hates you,” “you’re disgusting,” and “why don’t you kill yourself” is not in the same category as posting “I’m going to kill you.”

When I was young (many years ago), every kid knew — and deployed whenever appropriate — the saying, “Sticks and stones may break my bones, but words can never hurt me.” When I was young, the term “bullying” applied to physical acts of aggression or threats of aggression, not to mere hateful words.

Children today seem to be these fragile hot-house flowers that can’t deal with rejection, criticism, ridicule … all the negative aspects of interacting with others that one should learn to deal with growing up because they’re an inevitable part of life.

I think there’s something seriously wrong with what passes for parenting and educating children today.

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