One Last Post about Bullying. Or, Let The Asinine Legislation Begin

I’ve blogged before about some of the legal issues that come up adolescents bully one another. These issues can be quite simple, involving ordinary assault and battery in the criminal/civil arena, and intentional infliction of emotional distress (IIED) in the purely civil arena.

I noted that these issues become more complicated in the rare instances when the victim of particularly severe bullying commits suicide, and makes it clear that the bullying was at least a factor in that decision, if not the main driving force. Specifically, the issue of whether or not the bullies can be held legally responsible for a suicide death which they may have indirectly caused is a sticky one.

Perhaps in an attempt to clear up the law on this subject, or to give an angry public the impression that it’s “doing something,” the Suffolk County board of supervisors has proposed a law (PDF) that would make it a crime, among other things, to “repeatedly insult a minor.” The law seems most focused on electronic communications, perhaps to deter cyber-bullying.

One should see right off the bat that this law has some serious problems with vagueness. Any law can be found unconstitutional because it is too vague (a law which is so vague that the public can’t actually know what conduct it prohibits deprives them of prior notice of the law, and therefore deprives them of due process). This seems especially likely in this case – in addition to being extremely vague, it could easily restrict expressive conduct which is protected by the U.S. Constitution.

For example, a 17-year-old girl who finds out that her friend has been saying nasty things about her behind her back, sends her former friend several emails calling her a few choice names. She would be guilty of sending “hate mail” and “repeatedly insulting a minor.”

Surely, this isn’t what the legislatures in Suffolk County wanted to do. But if this law passes, such an outcome is perfectly plausible.

Besides the obvious constitutional issues, this law, and others like it, illustrates the problem of legislation passed after a publicized event, which is clearly meant to placate the public, rather than solve a social problem.

When the news media get a hold of the latest moral panic, parents inevitably demand that their governments “Do Something” to solve the problem. Right now, bullying is in the news due to a few high-profile tragedies, and lawmakers are tying to “Do Something” about it. The problem with lawmakers “Doing Something” is that the laws they enact, no matter how well-intentioned, can end up stepping on the freedoms of people who are engaging in constitutionally-protected activities, such as expression.

While this attempt to address bullying with severe penalties as it is just beginning to occur is well-intentioned (and, if this law operates as intended, could probably prevent bullying from getting to the point that a teenager is driven to suicide), legislatures need to come to grips with the fact that the government just can’t solve some problems. There will always be bullies on the schoolyard. And there will always be bullies in the real world.

Of course, we all wish that this weren’t the case, but it is. Perhaps parents, teachers, counselors, and (to the extent their assistance would be useful) local governments should focus on addressing the causes of bullying, rather than passing knee-jerk, reactionary laws to respond to a single incident.