Bullying, free speech and the death of common sense

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howard_book1Recent charges of “cyber-stalking” that a Florida sheriff brought against two minor girls related to the suicide of a fellow student, is the latest incident in which “bullying” threatens to be used to eviscerate the First Amendment free speech rights of Americans.

Thanks to excellent legal representation the charges were dropped (covered here by JoeForAmerica and in below video), which also prevents any precedent in this area of free speech jurisprudence being set by an appellate court. Suffice to say that given the activist-liberal make-up of most of today’s judiciary, that is probably a blessing; but it is where freedom of expression meets innocent-until-proven-guilty that some liberal lawyers in black robes rediscover their constitutional roots.

Sticks and stones may break my bones, but words will never hurt me.

This almost-always-truism used to be a near-universal rule taught to most children by most parents in America before at least the late 1960s and even later in most points south of Mason-Dixon line. Of course, words can “hurt” in their own way, and the law obviously recognizes civil tort causes of action for lying defamations of character and, in very narrow circumstances, criminal penalties for utterances deemed imminent incitements to violence, fighting words and other yellings of fire in non-burning theaters.

But the growth and conjunction of concepts of “harassment” (sexual and racial), “hate crimes”, “date rape”, “political correctness” and “bullying” long ago produced a legal mine field in American schools and work places, that defy common sense.

The cyber-stalking charges brought against minor children in conjunction with a suicide, while having far more problematic legal flaws such as criminal intent and causation, do however raise the specter of equating online speech with actual, physical criminal acts that, if allowed to “mature” as the amorphous hate crime and harassment laws have, would further impose prior restraints on free speech that begin to look like George Orwell’s 1984.

Because of the express guarantee that “Congress shall make no law abridging…the freedom of speech,” unlike in Great Britain for instance, causes of action for libel and slander are very difficult to make, even for non-public figures who must meet the near impossible “actual malice” standard established in New York Times v. Sullivan by the U.S. Supreme Court in 1964. That standard requires that the allegedly defamed prove a negative (usually impossible) that the one making a defamatory statement, including the press making or reporting such a statement, “knew that it was not true to a moral certainty” when the statement was made. Obviously, this allows for conjecture from one’s own imagination to pass for non-defamatory assertions. But even in ordinary defamation actions, the elements of proof with respect to actual damages and causation, along with the vagueness of most words and phrases, making successful libel and slander allegations stick is very difficult to achieve.

Which means, under the traditional American criminal justice system where the burden of proof (unlike a mere preponderance in civil matters), must be beyond a reasonable doubt with the accused also having the requisite mens re or criminal intent, criminal prosecutions for speech should be exceedingly rare.

Common sense used to prevail on most public school yards with respect to dealing with bullies.

There were no lists of politically incorrect taunts for which special attention was paid and draconian punishments meted out. Today, much of the approved curriculum might be deemed “bullying” if the Right were to adopt the thin skin of the Left and take legal offense to the trashing of traditional American values. The fear of lawsuits and the political correctness of the liberal Democrats that have dominated academia for decades with multiculturalism, feminism, and hostility to Judeo-Christian values has turned many good teachers into automatons responding to code words with irrational reactions all out of proportion to actual and alleged bullying, and to dismiss actual bullying depending upon the race and gender of the perpetrator and victim.

Thankfully, we are not aware of any trial verdicts of any kind, much less legal precedents, that have made ordinary free speech on the internet the basis for criminal charges based upon violent actions taken by others, whether suicide or murder. This excludes, of course, charges of conspiracy to commit terrorism or other crimes in which the internet speech is directed to co-conspirators that also take an affirmative act towards the commission of a crime.

In America, one simply can’t commit violence and blame another for incitement except under very narrow circumstances. Hopefully, the United States retains that rule of law and matures once again into a tough “sticks and stones” people who aren’t constantly on the lookout to take offense or make another the scapegoat for their self-indulgent behavior based upon low self-esteem or supposed victimization.

That we have even adult football players crying about supposed bullying or hazing in NFL locker rooms doesn’t seem to bode well for the future. The best looks at the recent American past and best prescriptions for the future in this area are Philip K. Howard’s seminal books, The Death of Common Sense (1995) and Life Without Lawyers (2006)

DeVine Law

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