New York State Senators want "refined First Amendment," laws to prevent trolling, flaming and excluding people from online groups

New York State Senators Jeff Klein, Diane Savino, David Carlucci and David Valesky apparently missed civics class, because they think the First Amendment grants the "privilege" of free speech, not the right, and that this "refined" view of free speech should be implemented in order to stop people from saying stupid things on the Internet.

Their report suggests that a "refined" First Amendment could be used to stop "happy slapping" (a short-lived violent craze from 2005), trolling, "flaming," and "INTENTIONALLY AND CRUELLY EXCLUDING SOMEONE FROM AN ONLINE GROUP" (the caps are theirs).

Seriously? If we don't let you into the club, it's now a form of cyberbullying? It makes you wonder what happened to these particular Senators when they were kids.

The paper also attacks "anonymity," again ignoring how anonymity can often be extremely helpful to kids who wish to discuss things and ask questions without revealing who they are.

As for where they're going with this? Well, you guessed it: they're planning to introduce new laws to deal with cyberbullying (even though NY already has such a law). The plan is to extend two existing areas of law: "stalking in the third degree" will now include cyberbullying, and "manslaughter in the second degree" will be expanded to "include the emerging problem of bullycide."

(via /.)

(Image: The First Amendment of the U.S. Constitution, a Creative Commons Attribution Share-Alike (2.0) image from brentdpayne's photostream)


  1. How would happy slapping (if it even occurs any more) fit under the existing 1st Amendment? If a video shows illegal or immoral acts it can be censored, especially if it could be shown to be encouraging crime (in this case battery), there’s no need to change anything. 

  2. Sadly, you can’t legislate stupidity, though many keep trying. People will say stupid things on the Internet. the easiest way to counter this is to a) provide intelligent counterpoint to their arguments and b) strengthen the educational system so there are fewer ignorant people . Sadly, you’ll never be able to eradicate ignorance completely, but we can do a lot to mitigate its effects.

    1. “Sadly, you can’t legislate stupidity, though many keep trying. People will say stupid things on the Internet. the easiest way to counter this is to a) provide intelligent counterpoint to their arguments”

      Ha!  That always works for me.  The best way to counter a troll is to engage in calm and civil discourse.  

      Seriously though, your second point is spot on:
      ” b) strengthen the educational system so there are fewer ignorant people”

  3. I’m STRONGLY against ANY changes to the 1st amendment!

    I suspect that the right-wing crowd is attempting to open the door to a first-amendment “revision” for reasons other than, “To prevent trolling”.  It is FAR more likely they would like to “adjust” the separation between church and state, than help us poor internet users get rid of bullies. Even minor “tweaks” to the very specific language of the first amendment could have horrible consequences. 

    1. I’d like to point out that these four senators are Democrats. Which isn’t to say they can’t be right-wing; but since most people’s rule of thumb is ‘Right Wing = Republican, Left Wing = Democrat’, I figured I’d clarify that.

      1. Yes BJA thank you, you are correct. I was not trying to say that these politicians were right-wing, but that the right-wing establishment would use this opportunity (or any similar) to highjack the conversation and make changes to the 1st amendment outside of the scope of the original stated purpose.  The language in the 1st amendment separating Church and State is subtle and delicate. Even moving a comma could be dangerous.

    2. The history of the 1st Amendment is filled with change. It’s a small grouping of words, and functionally it changes every time five of nine Supreme Court justices think it’s been interpreted incorrectly. Many of the things we do today were once considered beyond the pale from a free speech perspective.

      Also, tweaks are possible. For example, Oregon’s state constitution expands the scope of the 1st Amendment, allowing greater speech than the federal constitution. If you’ve ever visited Oregon and wondered why there are so many strip clubs, it’s because the state court system has interpreted its freedom of speech clause so that zoning cannot be used as a weapon against undesired but legal activities. In other parts of the nation, zoning laws are allowed to do a lot of work restricting what some might consider speech, or at least communicative activities.

    3. Instead of  “suspecting” that this is a right-wing plot, why don’t you spend 2 minutes to do some research? State Senators Klein, Savino, Carlucci and Valesky, the authors of this proposal, are all Democrats.

  4. “I’d never join a club that would allow a person like me to become a member.”

    – Grouch Marx

  5.  Does this mean that they can no longer exclude people who do not share their political beliefs and are not members of their party from all of their own online activities. I can see possibilities here.

  6. “apparently missed civics class, because they think the First Amendment grants the “privilege” of free speech, not the right”

    A certain boingboing editor may have missed civics class too. Neither the first amendment nor any of the other amendments “grant” any rights whatsoever. They recognize them and restrain the government from limiting them.

    If the first amendment merely “granted” a right, then what *rights-based*, or even *first amendment based* objection could there possibly be to using constitutional procedure to un-grant or “refine” it?

  7. The worst thing about elected officials is that more than 50% of them appear to have little or no understanding of the political system they have been selected to have a hand in running.  
    If they have ever bothered themselves with even a brief reading of the US Constitution, Bill of Rights, Federal Law or the State Laws they were sworn to uphold… well I dont know.
    Its not like they would suddenly be any less stupid if they read something they did not possess the ability to understand.

    1. In the olden days before Gutenberg got his make on, Bibles were really expensive. So priests in many areas that were far flung from the Roman Catholic (or other central church authority) may have never had their own copy. What they had was a catechism, and that catechism was more important than the Bible in many ways because it told them how to practice, and what good is theology unless your followers know who’s boss? 

      American political parties are like that with the Constitution. Who needs to read it when you PACs and interest groups to tell you what to do?

  8. As I see it the 1st Amendment as a right and so I extend and use my right in calling the people who introduced this abortion bounders!  Bounders and syphilitic dick weasels.

  9. Now these old fucks can steal all they want
    And they can go and pass laws saying
    you can’t say what you want
    And you can’t look at this and you can’t look at that
    And you can’t smoke this and you can’t snort that
    And me baby – I got statistics – I got stats
    These people have been to bed with their parents
    – Lou Reed, “Sex With Your Parents” 1996

  10. As one of Carlucci’s constituents I am embarrassed that I voted for him. He’s obviously just part of the machine or looking for attention.

  11. Diane Savino, who endorses this position, is my State Senator. She’s generally progressive for the area, but wayyy out of her league with this sort of thing. Below is the letter I just wrote to her:

    “Senator Savino,

    I generally support your positions. Thank you for the work you do for the underprivileged and disenfranchised of Staten Island. Yet on the subject of the right to free speech as outlined by the recent paper from the Independent Democratic Conference, I can not disagree more. 

    Particularly this passage: “Proponents of a more refined First Amendment argue that this freedom should be treated not as a right but as a privilege — a special entitlement granted by the state on a conditional basis that can be revoked if it is ever abused or maltreated.” Given the context of the paper, it would seem that this is a position you support. This is a gross misreading of the Constitution, and should it be endorsed by serving members of one of our state’s highest institutions, a terrible and dangerous precedent.

    The right to free speech is not a privilege granted by the state. It is not an entitlement to be used only in cases when the speech itself is pleasing to all ears. It is a right. A right that every citizen and non-citizen alike is endowed with from birth. A right that our government respects. Should the state (and by state, I mean all governments, local and federal of the United States) confuse such a right with a privilege to be conferred or revoked based upon the prevailing whims of popular norms, then the very meaning of the word “right” is bastardized and trivialized.

    I understand the motivations behind such an interpretation in regard to cyber-bullying. It is terribly tragic that children must suffer bullying not just within schools, but for the many hours that fill up the days in between classes. I would argue, however, that punitive measures will, as always, have a greater affect on the innocent than on the bullies. A re-interpretation of the right to free speech as a privilege or entitlement would do grievous harm to the foundation of our representative and free democracy. 

    The correct course of action would be the enforcement of existing laws, as well as a greater focus in schools, at daycare, and at home, on basic human decency. Restrictive measures, like the rephrasing of our most sacred rights, will affect us all. It treats us all like criminals. Inclusive, forward thinking measures seek to bring about the better in children and adults. Perhaps teachers should take a greater role in popularizing tolerance. Perhaps schools should be more strident in protecting the abused. Perhaps families should do a better job in educating their children to teach respect and tolerance for all people. 

    As a child, I was the victim of bullying. School was often a slog for me for this very reason. To go to class in fear of taunts, hate, and misguided anger was an intimidating thing. This treatment persuaded me to neglect my nascent interest in science and history. It taught me to be good at sports, so I might not be chosen last at the playground. And yet, where would I be today if I had nursed my educational interests rather than my athletic pursuits? Thankfully I am rediscovering these abilities today, even in the face of inexplicable adult disdain. 

    Yet my experience with bullying has only reinforced my belief in a free state. We cannot and should not legislate against every taunt, every fist thrown in anger, and every text message. Proposals such as these set a precedent to legislate all speech that the state deems “dangerous” or “as a possible cause of harm.” Should the state presume the ability to label, without recourse, some speech as dangerous, then the state assumes the ability to regard all speech as dangerous. 

    Endorsing these beliefs are well within your rights and the rights of your colleague’s. Yet this also means that others can and should vigorously oppose proposals such as these.

     No one denies the dangers of bullying. It’s a sad and dreadful experience. But reinterpreting the Constitution itself to better combat such behavior is akin to using an anvil to crush a flea. It will not only be unsuccessful, it will injure many others in the process. 

    Thank you for your time and consideration.”

    Senator Savino can be contacted at Don’t use the online form on the NY State Senate website. For some reason they require your full name, address, and phone number.

  12. Legislators do one thing very, very well.

    Thy draft Bills!  They live for it!

    They stay up late at night and ponder how they can get a bill passed with their name on it for their curriculum vitae.

    These mother fuckers could care less how many rights they infringe on. 
    They actually want to legislate Human Behavior!

  13. Won’t somebody think of the children!

    I just saw a flyer in a workplace: “Cyberbullying affects us all blah blah blah seminar blah”.     

    please g(h)od, make it stop.   I think this is one of those areas where LIEberals and KKKonservatives might be able to find common cause.  enemy of my enemy etc. 

    1. Agreed, but it is pretty tough to go up against “The safe mothers league” as I call them, when laws and rules about children begin to seem excessive.

  14. Hey everybody!  It’s time for another round of  NAME…THAT…PARTY!   Are you ready to denounce those NAUGHTY, EVIL CHRISTIANIST GAY-HATING  RETHUGLICAN TEABAGGERS?  Well tough shit, because all four of them are Democrats.  Better luck next time. 

        1. I’m not blind, friend, nor was I taking the bait. How will we get better trolls if we don’t train them to present facetious arguments that are at least rational?

  15. It’s tragic a few kids/teens are now killing themselves in part because of the internet. It sucks some kids are bullied at school. I feel badly for them and friends and family. But it has nothing whatsoever to do with the multimillions of other people not involved in their cases. To me this is an obvious and thinly veiled attempt to bait and switch. Shouting “Oh the poor dead kids!!”  is not nearly a good enough justification to screw around with the 1st amendment.

  16. All you have to do to “refine” an amendment is pass a law that either narrowly or blatantly violates it and hope nobody sues.

    As Soodonim said, neither the 1st amendment nor any of the others “grant” us rights, they *restrict* the government from passing certain types of laws or acting in certain ways.  This is a small but important distinction.  It’s the difference between a right and a privilege.  Unfortunately, we have all been conditioned to believe that our rights are actually privileges, that can be taken away at a moment’s notice.

    One of the most out of control example of this is the prohibition of certain rights based on whether or not somebody has ever been convicted of a felony.  In many states, you can’t vote if you are a felon.  I understand the sentiment, and I believe that for a time such a schema worked, but we have lowered the bar for felony over the past 100 years.  Felony crimes generally used to be capital crimes…  Just google “ridiculous felonies” and imagine all those crimes carrying the death sentence in years past.

    Principally speaking, we either need to stop prohibiting rights based on felon-status (because that makes it a privilege, not a right) or restrict felonies to murder, rape, certain violent crimes and so on.


  17. Well, if you read the report, I think a few issues of context become clear.

    It’s not a bill.  It’s providing background for something they want to do in the immediate future.  The language about the first amendment is not in the bill, and so nobody is actually going try to legally change the definition of your first amendment rights.

    What they actually want to do is (1) broaden the concept of “stalking” to include harrassing electronic communications, as a special protection for people under 21.  (This is indeed debatable.)  and (2) expand the definition of manslaughter to include bullying that leads to suicide.  (This is actually pretty reasonable IMO, for cases like an adult woman impersonating a teenage boy and inducing her neighbor’s daughter to kill herself.   Really happened.)  

    The mentions of “happy slapping” etc. aren’t in the actual bills either.  Again, it’s just presented as background.

    While the passage about free speech being a privilege is indeed unfortunate, it is followed by a much better citiation of Oliver Wendell Holmes’s “harm principle” – “the right to swing my fist ends where the other man’s nose begins.”  

    Now, contrary to what a lot of first amendment fans on the internet believe, this is actually the standard in contemporary law.  Not all speech is protected.   It is already illegal to harrass, defame, and defraud — to intentionally harm others with words.  

    While I think the proposed bills that are debatable and need refinement, I think merely excising the passages one finds silly and ignoring the actual bills being proposed is bad journalism.  Like JSD, Savino is also my state rep, so I read the report ready to fire off a letter.   But what I found made me much more irritated at BB and the other bloggers who want to make hay out of this.

    1. While I initially chuckled at the “guess the party affiliation game” in play (dems attacking free speech?!?!?), when you look deeper as Asterious has done, exactly, they’re actually onto something here — stalking and pushing someone over the edge are worthwhile matters to consider. I”m more hesitant with that manslaughter aspect in this climate of “new civility” where we rush out to condemn violent-sounding rhetoric when it’s just some nutjob with a gun. As long as it’s bullying that leads to suicide and doesn’t creep into inflammatory language by person A that caused person B to shoot person C which is a different fish.

  18. Luckily, given the human talent for expressing contempt regardless of the tools available(see also: “Euphemism treadmill”), even a legally enforced inclusiveness requirement should be trivially subverted from its ostensible purpose, even as the gross harm it does to the constitution remains.

    Some reasonably snappy colloquial usage(maybe “freds” as a shortening of “fed friends”) and you’ll be all set for a Nice Happy Fuzzy Inclusive idea to turn into a vitriolic insult.(Consider the fate of “Special”: Once “Crippled”, “Retarded”, and “Handicapped” had been burned through, “Special needs” came in, and, within a short time, every middle-schooler knew exactly what it meant when you rolled your eyes a touch and described somebody as “special”. )

    I, for one, would be happy to add the sponsors of this notion to my freds list.

  19. New legislation: all kids must watch The Karate Kid once a month from ages 4-8, much like I did. They will then learn that bullies are, in fact, just some kids that probably have abusive relationships in their lives (other friends, fathers, PTSD Vietnam vet karate coaches) that are making them into mini-psychos and the only response is either ignoring or crane-kicking them.

  20. The original idea was that within the boundaries of the United States there was one big free speech zone.

    Now, that’s been reduced to a few cordoned off areas about 500 feet away from wherever you happen to be protesting.

  21. Hey Cory,

    You Have Been Trolled.
    You Have Lost.
    Have A Nice Day.

    – Klein, Savino, Carlucci & Valesky

    (seriously, they know there is no way this crap could pass. They are counting on the outrage it will provoke on Teh Internets to get people to think about things…)

  22. Well then, while we still have the original una-fucking-bridged version of that “goddamned piece of paper,” allow me to retort to the Executive, Legislative, and Judicial in unison:

    “Fuck You.”

  23. I think freedom of speech is fundamentally important, but not all speech is equal. For example, few people would argue that corporations should have the right to lie in their advertisement, or that making death threats is perfectly fine. There are different categories of speech and they should be more or less limited depending on their type.

    – Opinions: I think opinions should be entirely free and there should be no limits to expressing them. E.g. If you disagree with the government or powerful corporations, you should be free to say so without worry.

    – Facts: This one’s tricky because some facts you talk about are true and other false. Talking about true facts should only be limited if there’s a very, very good reason for it (e.g. I don’t think it should be legal to reveal military secrets to enemy nations). Spreading false facts, however, can be illegal where it makes sense (e.g. false advertisements, shouting “Fire!” in a crowded theater, libel). We should err on the side of freedom, but there are cases where discussing facts shouldn’t be allowed.

    – Orders: Orders to a subordinate should be limited by law where it makes sense. A mafia boss shouldn’t be able to ask for a the murder of someone while protected under the guise of “free speech”; a CEO shouldn’t be able to ask employees to destroy a protected national park without being punished for it.

    – Threats: Unprotected speech. Protecting people’s right to menace others with harm isn’t part of a civilized society.

    If we followed something like this, I think what is and isn’t free speech would be much clearer. Cyberbullying would be illegal because it’s a mix of spreading false facts (libel) and making threats. No need to weaken the protection of other types of speech.

    1. You are on the right track, Pag, but much of what would be considered cyberbullying is indeed opinion based (e.g. assertions that one is “fat”, “ugly”, “a slut”, “a fag”, etc.)  

      I think the aspect that can set it apart from everyday speech is the public shaming part, the sense that one can be attacked in front of a (seemingly) infinite audience with no recourse.  For a kid, that seems to be a pretty heavy burden.

      The more I think about it the more I suspect that special protections for young people might not be out of the question.  There are all sorts of other ways minors are protected from the adult world.

      The real downside would be harrassment-by-criminal-complaint, with vindictive parents turning adolescent disagreements into frivolous criminal cases.

      I’m not sure what the best remedy is, but I wish we could have an intelligent conversation about it here instead of an uninformed snarkfest.

  24. Not the first time I see bigwigs claim constitution is largely outdated and needs “refinement”. The truth is, that it is _inconvenient_ to some power-hungry monsters. If freedom of speech is to become a “privilege”, it soon will be taken away from those who dare to speak up against these powers. Yeah, this one is against online speech… but who speaks off-line any more? Any speech nowadays has to come out online if it is to reach any significant audience.

  25. While its true that being flamed can ruin your whole day, I just don’t see any impact it could have that would require legal intervention. A mother cyber-stalking a teen that leads to suicide is clearly harrassment. We don’t need a  law to define cyber-harrassment because its no different from anyother type of harrassment.
    Why can’t these senators draft a bill taht prevents companies like extenze (the penis enhancer) or Celtrixa (the stretchmark reducer) from making ridiculous, clearly unsubstanitaed claims on TV every night and leave the troll wars to us.

  26. Could be worse. In North Carolina our Democrat Governor Bev Perdue recently suggested suspending elections for Congress so Congresscritters didn’t fear being denied re-election, and could then pass whatever laws they wanted without fear of retribution. It’s just a little more evidence of a Democracy in decline.

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