Legal Commentary

A Crime to Repeatedly Insult a Minor

By Eugene Volokh

That?s what draft Suffolk County Resolution No. 1390?2010 would do (some line breaks added):

?CYBER-BULLYING? shall mean

[(a)] engaging in a course of conduct or repeatedly committing acts of abusive behavior over a period of time

[(b)] by communicating or causing a communication to be sent by mechanical or electronic means, posting statements on the internet or through a computer network.

[(c)] Acts of abusive behavior shall include, but not be limited to, taunting; threatening; intimidating; insulting; tormenting; humiliating; disseminating embarrassing or sexually explicit photographs, either actual or modified, of a minor; disseminating the private, personal or sexual information, either factual or false, of a minor; or sending hate mail....

No person shall engage in cyber-bullying against a minor [i.e., someone under the age of 18] in the County of Suffolk....

Any person who knowingly violates the provisions of this article shall be guilty of ... [a] misdemeanor punishable by a fine of up to $1,000 and/or up to one year?s imprisonment.

So let?s see:

1. You post several items on your Web site about how some juvenile criminal is an awful person. You?re guilty of ?repeatedly committing acts of abusive behavior? ? namely, ?insulting? ? ? ?against a minor? by ?posting statements on the internet.?

2. A 17-year-old finds that her 17-year-old boyfriend is cheating on her. She sends him two e-mails calling him a ?lying, cheating scum.? She?s guilty of repeatedly ?insulting? the other person, and perhaps ?sending hate mail.?

3. A 17-year-old e-mails her friend several times about her having had sex with a 17-year-old boy. She is guilty of ?disseminating the private ... sexual information? (even though ?factual?) ?of a minor? ? the fact that the boy had had sex with her.

4. A 17-year-old reveals to several of her friends, in separate e-mails, that her 17-year-old ex-boyfriend has a sexually transmitted disease. She is guilty of ?disseminating the private, personal ... information? (even though ?factual?) ?of a minor.?

5. A 17-year-old corresponds with his friends about a classmate?s relatively little-known religious or political beliefs. Is he guilty of ?disseminating the private, personal ... information? (even though ?factual?) ?of a minor?? Hard to tell, since ?private, personal ... information? is not defined.

6. A 17-year-old posts several photos on her Facebook page, depicting a 17-year-old classmate doing something embarrassing (but not sexual) at a party. She is guilty of ?disseminating embarrassing ... photographs? ?of a minor.?

All these people would under the proposed ordinance be criminals, who could go to jail for up to a year because of their transgressions. Just what our legal system needs.

And, yes, I know that this was prompted by an incident in which a Suffolk County 17-year-old committed suicide after she had been bullied. But this hardly justifies turning a wide range of normal ? and, in some instances, constitutionally protected ? behavior into a crime, and a large set of normally behaving teenagers into criminals. If you want to outlaw a particular set of behavior that is indeed highly wrongful and highly dangerous, and you can define it in a way precise enough and narrow enough to be suitable for criminal punishment, that may well be sound. But this proposal is not sound.