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We Had TOP LAWYERS Working on it. TOP. LAWYERS.

Jun 16, 2011
By .
Law

Last week I wrote about the awful and patently unconstitutional proposed Tennessee law making it a crime to post mean, feelings-hurting pictures on the internet. I dropped a line to the bill's proponent, Rep. Charles Curtiss (whose name I misspelled throughout; my apologies). Since then, two things have happened:

1. I learned that, contrary to my careless impression, the law has actually passed, and

2. Rep. Curtiss sent me an email responding to my post, as follows:

Ken,
We have heard the concerns. However, the bill was drawn by our attorneys to only apply to very limited circumstances of severe cases of cyberbullying in which the local District Attorney would have to initiatiate, not an individual as some have suggested. The bill was vetted through the committee process and amended before being overwhelmingly passed in a bi-partisan vote. To ensure that it does only apply as intended, we have asked for an attorney general opinion on the matter. We will keep you informed as to the outcome.
Sincerely,
Charles Curtiss

Kudos are due to Rep. Curtiss to responding to a citizen – and not even a citizen in his constituency — who expressed a concern (in rather rude terms) about the constitutionality of a law. Not many would respond at all, let alone response to a snarky asshole blogger taking shots from across the country.

But he's still an oathbreaker. His response (which, to be fair, is probably not intended for attorney consumption) is frankly ridiculous:

1. If their attorneys attempted to draw the bill narrowly to only apply to very limited cases of cyberbullying, then their attorneys suck. Period. Full stop. It doesn't take Eugene Volokh to point out its vagueness and overbreadth problems.

2. It is no comfort at all that the District Attorneys of Tennessee will exercise discretion about which cases to bring. That is, in fact, the opposite of comforting. It means that District Attorneys will be able to pick and choose whom to prosecute for violating a vague law based on their personal agreement or disagreement with the defendant's message. It is precisely the pernicious sort of discretion to censor that First Amendment caselaw prohibits.

3. The fact that the bill was "vetted" through committees and overwhelmingly passed does not magically render it constitutional. Rather, it calls into serious question whether Tennessee lawmakers as a body are faithful to their oaths to uphold the constitution — or capable as a body of grasping that oath.

4. Passing vague censorship laws and then narrowing them by attorney general opinion is no way to run a state.

Rep. Curtiss, and his ilk, are simply relying upon the public's willingness to engage in categorical thinking. He believes — probably correctly — that if he slaps a label like "cyberbullying" onto a law, the public will not inquire further. That's regrettable, and does not fulfill his oath to uphold the United States constitution.

Last 5 posts by Ken White

9 Comments
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8 Comments

  1. wizardpc  •  Jun 16, 2011 @9:23 am

    As a Tennessee political blogger who has sat through many committee meetings, I can assure you that not a damned one of them understands what's constitutional and what's not.

    Their definition of unconstitutional is generally a variation of "I really don't like this bill, but I can't articulate my objections and it appears it's going to pass without my vote."

  2. bw  •  Jun 16, 2011 @9:51 am

    So, Ken, did you follow up directly with Curtiss regarding his idiotic response, and did you do so in a manner that revealed your level of knowledge?

    His next response might be even more amusing.

  3. TJIC  •  Jun 16, 2011 @10:02 am

    Nice (and subtle) Indy reference in the subject line!

  4. Ken  •  Jun 16, 2011 @10:04 am

    bw, I didn't see much point, as it would be more personal amusement than dialogue. I already linked Prof Volokh's post in my original email. If they don't respond to that, they're not going to respond to my puny efforts.

  5. Burt Likko  •  Jun 16, 2011 @9:48 pm

    1. You win the entire internet with this blog title. And that's not just hyperbole.

    2. As a former citizen of the fine state of Tennessee, I have no doubt whatsoever that Rep. Curtiss is quite sincere about how everything's going to be perfectly okay because, you know, both Republicans and Democrats got behind this one. The response you got, though, is pretty typical. when I complained to my legislators about pending legislation, I received near-immediate, personal, and intellectually inane responses directly from the legislators themselves. That's how they roll in the Volunteer State.

    3. This bill is exactly why something like cyberbullying is such a delicate issue to approach from a legal perspective. Rep. Curtiss is trying to call a sledgehammer a scalpel here, and it's not even clear that cutting at all is even permissible.

  6. Tim  •  Jun 17, 2011 @4:57 pm

    As a fifth-grade teacher, I'd like opinions on what (if anything) can be done about online bullying without violating the letter or intent of the Constitution. I've seen young people hounded mercilessly and publicly, sometimes to the point of doing violence against themselves or their tormentors. Can our state legislators offer some remedy that would not be a sledgehammer? Maybe we can specifically target abuse against minors who are not public figures? Or is online abuse of children just something we have to put up with?

  7. Patrick  •  Jun 17, 2011 @5:20 pm

    Ask to speak to them after class?

    Call their parents?

    Belittle them in front of their peers?

    Is this really going on in fifth grade? Most fifth graders can't spell CAT SAT ON A MAT, much less access Facebook or create a website at killpiggy.com.

  8. Ken  •  Jun 17, 2011 @5:25 pm

    Welcome, Tim. (Folks, Tim is an actual teacher, in addition to songwriter and accomplished fellow geek.)

    Tim, the recent Supreme Court decisions suggest that schools can do something about online bullying when they can make a showing that the bullying is causing an actual disruption at school. That's already within educators' powers. If bullying is actually provoking violence at school, it's within the school's circle of authority. Beyond that, there's an array of tools already available: stalking laws, threat laws, restraining orders, etc.

    This law isn't just a sledgehammer. It's a pony nuke. Legislators made no perceptible effort whatsoever to narrow it to the types of circumstances you suggest.

    In a perfect world, I think that Patrick is right that we'd use social pressures to protect such kids and pressure the parents of bullies. Failing that, it's extremely difficult to construct something that's not just a vague discretionary tool to be used against the disfavored.

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