Should Picente Sign Oneida County’s New Anti-Bullying Law? [OPINION]
by Bill Keeler
There are real questions about Oneida County's new 'Anti-Bullying Law' and the topic drew a great deal of attention on Thursday's First News with Keeler in the Morning.
The law passed the County Legislature last week. A public hearing is scheduled for Tuesday and the law is expected to go into effect in December, providing it's signed by County Executive Anthony Picente and forwarded to the State for filing.
Harmony Speciale, the sponsor of the bill said the new law is enforceable because of advanced technology in the world of 'cyber forensics.'
Oneida County Sheriff Rob Maciol said while he feels that it's "good legislation," it will have to be applied to more serious cases and caution will need to be used.
[LISTEN TO AUDIO: The audio of the interview with Sheriff Maciol and Legislator Speciale is here.]
Not everyone agrees.
The Rome Sentinel wrote an editorial recently that challenged the entire premise.
The editorial criticized the legislation: "The Cyber-Bullying bill (is) so vague its sponsors and advocates could be construed guilty of misdemeanors"
The Sentinel quoted Oneida County District Attorney Scott McNamara as saying the law would "withstand appeal, especially First Amendment (free speech) issues."
That remains to be seen as the law was just recently enacted. A similar New Jersey law which basically targets students bullying other students is facing several appeals which are currently in litigation.
The Sentinel editorial also questions the effectiveness of 'anti-bullying campaigns' in schools, as well as serious misconceptions when tying suicide cases to bullying.
Is it really kids we're trying to protect?
Oneida County's law seems to target adult bullying just as much as it does students. It addresses bullying in the workplace as well as in a school setting and it defines bullying in such a broad stroke that it would seem that almost everyone could be found guilty of the act at one time or another during a given day.
Harassment or Bullying is defined, in part, as "Making any statement, whether true or false intended to immediately provoke," according to the law.
Given the language, it seems that there is a great deal of illegal bullying going on in the County.
I assume, my radio show breaks this law almost every hour of every day we're on the air; but, it's not just me and people in the media. Political figures are the biggest culprits. Repeated radio and television commercials during the City of Utica Comptroller's race would almost certainly constitute 'Oneida County Bullying' by both Bill Morehouse and Jim Zecca, who under the law, clearly bullied each other.
What about the local business owner who is presented with a bad check and then publishes the fact that he was cheated? Can the person who wrote the bad check take legal action against the victim?
How about the person who buys a 'lemon' automobile and when he doesn't receive proper treatment from the dealer, decides to make signs criticizing the business?
What about your conversation with the customer service rep? What about those repeated calls from the cable company when your bill is late?
I think it all can constitute bullying under the new law in Oneida County.
Read the complete Oneida County Anti-Bullying Law:
Additional Content: First Amendment of the United States Constitution
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
How easy is it to enforce the new law?
I'll do my best to lay out the process:
1. A person claims they are bullied and they report it to police
2. Police contact the internet provider in an effort to get the ip address. (They might need a court order for this. This is time consuming.)
3. Police investigators track the ip address to a physical address. Let's say it's not a business or library (which poses many logistical issues. It should also be noted there are many websites and software applications that hide a person's ip address or use off-shore servers in countries that won't cooperate with United State law enforcement). For the sake of convenience, we'll make the ip address track to a single household.
4. Police confront the occupant and begin the interview process to determine a few possibilities:
A) Did the occupant/account holder commit the act of bullying?
B) Did someone else in the house commit the act of bullying?
C) Did someone outside the home breach the person's internet connection and commit the act of bullying?
D) Does the occupant of the home know the person who was bullied?
E) If the occupant of the home is uncooperative, what next?
F) Can the police agency get a search warrant to confiscate computers in the house?
G) If police are able to track the post to a specific computer, how will they determine which member of the 5-member family actually posted the illegal bullying post?
This is just one of the easy scenarios that just leads me to believe that not only is this law dramatically difficult to enforce, it may very well fail to survive a challenge on the basis of constitutional law.
While I understand the intentions of this law are most likely positive, County Legislators have failed to consider the fact that this nation was founded on specific free speech principles that accommodate for, and guarantee the right to, opposing opinion and free spirited debate. While some very rare limitations have been acknowledged over the years, such as defamation and "speech to which that would be directed to and likely to incite imminent lawless action," it is a fact that free speech, whether it originates from vocal chords or computer keys or whether it's pretty or repugnant, is guaranteed by American Law.
I'm confident that the County and any other municipalities that wish to denounce 'bullying' would be far better served by simply adopting a resolution that would clarify what already exists: that the act of cyber-bullying is covered under the laws regarding harassment and aggravated harassment and that cyber-bullying will be treated, as such.
I truly hope that the County Executive thinks very carefully before he signs this law and sends it off to the State for filing.