Cyberbullying laws: Free speech kryptonite

Lionel
Lionel (né Michael Wm. Lebron) is an Emmy® Award winning trial lawyer, published author, proud husband, legal analyst and news decoder, essayist, bluegrass guitarist, (out)spoken word performer and raconteur, vegan, talk radio veteran, pioneer podcaster, political atheist with a black belt in realpolitik and “[a]n intellectual known for his irreverent political and social humor” (Newsweek), “[who] wears the mantle of Lenny Bruce, with Lenny’s own tropisms: The Oblique, The Irreverent, The Tangential, The Concupiscent, The Polymorphous Perverse, The Arcane, The Numinous” (Jerry Wexler).
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Bullying is speech that should be protected. Threatening speech is another story.

Recently, mainstream media have reported that more legislation is on board and being considered and advanced internationally to deal with the issue of bullying - cyberbullying in particular.

The UK has its Investigatory Powers Bill that was recently proposed and it has its share of detractors in the form of privacy advocates upset for obvious reasons. (See also Home Secretary Theresa May’s particular provisions that are certain to ruffle the feathers of any privacy advocate and free speech centurion).

Cyberbullying is defined as anything from 1. the electronic posting of mean-spirited messages about a person (as a student) often done anonymously or 2. the use of an electronic communication to bully a person, typically by sending messages of an intimidating or threatening nature.

In a related area, media coverage of micro-aggressions made many a headline last year. A micro-aggression (usually seen in the classroom setting where one is troubled and perhaps even offended by academic subject matter) is defined as “subtle but offensive comment or action directed at a minority or other non-dominant group that is often unintentional or unconsciously reinforces a stereotype.”

The differences between the two stems from the fact that bullying involves deliberate, intentional action whereas micro-aggressions can exist by accident or negligently. I reference micro-aggressions only to illustrate the protean breadth of legislation that seeks to tackle the potentially uncomfortable and insulting. But I digress. Ahem.

Now, while these behaviors, cyberbullying in particular, can certainly wreak havoc on the developing and sensitive sensibilities of youth in particular, lead to deep-seated psychological and devastating emotional disrepair (up to and including suicide in some advanced cases) and are to be discouraged at all cost, the potential for violations of free speech protections in particular are as grave and certain. As to micro-aggressions, the “wrong” suffered is different contextually and in practice, but let me repeat – the potential for abuse is significant. Especially when statutes are utilized to penalize transgressors. Free speech certainly has limitations but undoubtedly it by its very nature inspires and invokes outrage and being occasionally offended.

None other than that free speech vanguard Louis CK remarked, "Offending people is a necessary and healthy act. Every time you say something that's offensive to another person you just caused a discussion. You just forced them to have to think." And while we’re at it, the equally relevant Ricky Gervais weighed in as well.

Now, here's the rub: offense, is never given, its taken. If you're not offended by something, then there was no offense, it's as simple as that. If you are offended by something, walk away. I'm offended by things all the time but I haven't got the right not to be offended, and remember this: just because someone is offended it doesn't mean they're right.

Some people are offended by equality, some people are offended by mixed marriage, some people are offended by everything. You can't worry about that. And you can't legislate against stupidity.

And yes, I noted that the British offense was cited. Are you offended?

You must ask the question. Why the concern of prohibiting that which is offensive and what about threatening speech as in cyberbullying? How are we benefited by cyberbullying and micro-aggressions? Shouldn’t they be discouraged and even penalized? No. But let me clarify.

What is immediately problematic is the vagueness of the behaviors that are discouraged. Specifically, the sole determinant of the violation is in what is experienced on the part of the recipient of the speech versus what was intended by the decalarant or publisher of the opinion or thought. Absent threats of immediate bodily harm, words that offend or “intimidate” involve the potential for misapplication.

When discussion becomes heated and when someone feels that he’s losing the debate, rather than display the white flag, claim you’re being threatened. Threatened by the tenor, the volume (tough in a cyber chat absent gratuitous use of dread capitals) and the phraseology, one can call “Bully!” and – with all apologies to Teddy Roosevelt – conversation and debate stops at the risk of a criminal complaint being lodged.

Cyberbullying can take the form of taunting, hectoring, pestering, behaviors that were either tolerated or addressed decades ago. Not any longer. Rebuke, respond, retort with a riposte all at your own risk. You are on notice. I may be offended.

Great thoughts ofttimes inspire a cavalcade of reaction depending upon the subject matter. Rudeness, abruptness and discourtesy in delivery can invoke multitudes of reactions that in no wise invalidate the validity of the initial thought. The overly or hypersensitive recipient can recoil excessively and if the intention of the publisher of the idea is not taken into account, the potential for stifling speech is apparent.

What should be feared is free speech being trumped by one’s taking offense. This is a tough world – news that’s not exactly breaking headlines – and while protocol and decorum are certainly to be advanced and encouraged, not so if it limits discussion.

During my days as a young prosecutor we didn’t have in our quiver harassment, stalking and certainly not bullying laws per se. Courts were most vigilant over protecting the right to speak, encounter and participate in a host of behaviors that albeit rude and perhaps discourteous were to be tolerated. In fact, the only viable form of “harassment” was via the mail, thus invoking federal privileges attendant thereto.

Things changed. Boy, did they change. The focus was on the subjective reaction of the recipient and not on the right of the declarant and certainly not his intent. What we’re seeing now is a diminution of a focus on the declarant and a care for the sensibilities of the object or recipient of the untoward.

What could go wrong? Try political discussion being thwarted and truncated out of a fear of “intimidating” another. What constitutes a threat per se? Especially when the subject matter is provocative. And what discussion worth having isn’t? And with more and more people unable to critically think or formulate an argument and rebuttal, the tendency for discussions to get out of control increase greatly.

You are on notice. (No offense intended.)

The statements, views and opinions expressed in this column are solely those of the author and do not necessarily represent those of RT.