Sui Generis--a New York law blog

Proposed cyberbullying law is unnecessary

This week's Daily Record column is entitled "Proposed cyberbullying law is unnecessary."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Proposed cyberbullying law is unnecessary

Recently, Monroe County Legislators Mike Barker and Carmen Gumina proposed legislation that would make cyberbullying a crime. Under the bill, cyberbullying directed toward a minor would constitute a Class A misdemeanor in Monroe County, punishable by up to a year in jail.

The crime of cyberbullying would occur where the defendant engaged in the following conduct: “(W)ith intent to harass, annoy, threaten or place another in fear of personal injury, engaging in a course of conduct or repeatedly committing acts of abusive behavior over a period of time by communication or causing a communication to be sent by mechanical or electronic means, posting statements or images on the Internet, through a computer network, or via cell or smart phone. Acts of abusive behavior shall include, but not limited to: taunting; threatening; intimidating; insulting; tormenting; humiliating; disseminating sexually explicit photographs, either actual or modified, of a minor; disseminating the private, personal or sexual information, either factual or false, of a minor without lawful authority.”

WHAM (13wham.com) recently reported that Gumina explained the law was needed because current laws have not kept up with technology: “There is no law around posting pretty nasty things about your peers. … It’s almost impossible now because there is no law on the books … At least there will be a law in the books that could help law enforcement prevent bullying from happening in the first place.”

While Gumina’s intentions are no doubt well-intentioned, his assertion that no other laws address this type of conduct is simply false.

I am the co-author, along with Brighton Town Court Justice Karen Morris, of the Thomson West treatise “Criminal Law in New York,” a book that thoroughly examines the substantive crimes defined in New York’s Penal Law.

As part of my preparation for the yearly supplement to this treatise, I review all new New York cases addressing the crime of aggravated harassment in the second degree, which is, just like the cyberbullying law proposed by Barker and Gumina, a Class A misdemeanor.

Penal Law s. 240.30(1) provides that a person is guilty of aggravated harassment in the second degree “when, with intent to harass, annoy, threaten or alarm another person, he or she:

1. Either (a) communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm; or

(b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm …”

When Penal Law s. 240.30(1) was originally enacted, it required that the communication occur “by telephone, or by telegraph, mail or any other form of written communication.” In 2008, the statute was amended to include communications delivered via digital means and the following language was added: “by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication.”

In keeping with the legislative intent behind the 2008 amendment, New York courts have broadly interpreted this section to include harassing communications made using mechanical means, including the Internet, so long as the communication was directed at the complainant, People v. Munn, 179 Misc. 2d 903, 688 N.Y.S.2d 384 (City Crim. Ct. 1999).

Also covered by this section are unwelcome messages transmitted via online social networking sites or online forums, People v. Rodriguez, 19 Misc. 3d 830, 860 N.Y.S.2d 859 (City Crim. Ct. 2008); People v. Munn, 179 Misc. 2d 903, 688 N.Y.S.2d 384 (City Crim. Ct. 1999). Similarly, emails and text messages are also forms of communication contemplated by Penal Law s. 240.30(1), M.G. v. C.G., 19 Misc. 3d 1125(A), 862 N.Y.S.2d 815 (Fam. Ct. 2008); People v. Limage, 19 Misc. 3d 395, 851 N.Y.S.2d 852 (City Crim. Ct. 2008).

So, contrary to Gumina’s contention, the proposed cyberbullying bill is unnecessary. The conduct prohibited by the bill is already unlawful in New York pursuant to aggravated harassment in the second degree and passing the proposed legislation would duplicate the current law and cause confusion in the prosecution of new crimes.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, a powerful and intuitive cloud-based law practice management platform. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

Gov. Patterson Green Lights Gay Marriage in New York

In what amounts to a major victory for gay marriage advocates, Governor Paterson issued a directive which required that state agencies recognize gay marriages performed in another jurisdiction. 

While I've always supported marriage, I've had issues with allowing it via judicial directive as our laws are currently written.  Passing legislation that allows gay marriage is, in my opinion, the best way to avoid the thorny issues of constitutional interpretation and allow every New Yorker to receive the benefits derived from the vows of a life time commitment to another human being. 

This directive is a step in that direction, but legislation should be passed in order to mute the objections of those who oppose gay marriage.

Some excerpts from an AP article: 

Paterson issued a memo earlier this month saying that gay New Yorkers who marry where it is legal will have the right to share family health care plans, receive tax breaks by filing jointly, enjoy stronger adoption rights and inherit property. He cited a February ruling in a New York Appellate Division court in which the judges determined that there is no legal impediment in New York to the recognition of a same-sex marriage...

At a Manhattan news conference on Thursday, Paterson, a Roman Catholic, defended the directive, saying failure to issue it would have left the state open to lawsuits claiming the state deprived gay couples of civil rights enjoyed in other states.

"We have a time-held and time-tested tradition honoring those marital rights," Paterson said. "I am taking the same approach that this state always has with respect to out-of-state or marriages conducted in foreign governments being recognized here in the state of New York. I am following the law as it has always existed."

Tutorial On Researching the Legislative History of NY Statutes

Today I came across a really useful tutorial at the New York State Library's web site that walks you through the process of obtaining the legislative history of a New York State Law.  There's also a really helpful section that explains how to determine the legislative intent behind a statute. 

I could have used this information a few weeks ago when I was researching the legislative intent behind a section of the AUO statute.  Better late than never, I suppose.

Spitzer Proposes Major Judicial Reform

As reported in this Buffalo Business First article, on April 26th, Governor Spitzer offered a judicial reform package that would substantially change the New York judicial system as we know it.

First, Supreme Court justices would no longer be elected, an issue that has been hotly debated ever since a U.S. District Court ruled that the current judicial nominating system was unconstitutional:

(T)he governor wants to be able to appoint justices of the Supreme Court, the lowest level of New York state court, to be chosen by regional judicial nominating commissions. Supreme Court judges are elected for 14-year terms...Under Spitzer's plan local judicial commissions would vet candidates and forward a list of potential justices to the governor, who would make the final selection. The same system is used to pick judges for the four Appellate Division courts.

The proposed reform goes even further than that, however, and suggests that a number of changes be implemented, including:

• Consolidating the state's trial courts into a two-tiered statewide system
• Increasing the number of Supreme Court judges
• The creation of a fifth appellate court division
• Allowing appellate division to be redrawn every ten years instead of being fixed
• Increasing judicial salaries
  • Supreme Court judges would receive an annual salary of $162,100, and effective April 1, 2006, Supreme Court judges would get $165,200. Salaries of all other judicial officers would be based on a percentage of the salary set for Supreme Court Justices

Major changes are on the horizon should this reform package be enacted. Some of the proposed changes, such as increasing judicial salaries and adding more Supreme Court judges, make sense to me. 

But, I was somewhat surprised by the proposed changes regarding the addition of an appellate division and allowing the redistricting of the appellate divisions every ten years.  I haven't read anything that has indicated that the current set up is problematic, so it seems strange that the Governor wants to enact such extreme changes.  But, maybe I'm missing a piece of the puzzle.

Either way, I'm having a hard time envisioning the effect of all of these changes--particularly as they relate to the appellate divisions.  Would the overall effect be good, bad, or negligible? What do you think?

If you can't beat 'em, sue 'em

In Urban Justice Center v. Pataki, minority legislators from the New York Assembly and Senate, along with the Urban Justice Center are seeking...well, justice and reform, from the looks of it.  In New York County Supreme Court, the Urban Justice Center, plaintiff Kirwan (a Republican member of the Democratic-controlled Assembly), and plaintiff Krueger (a Democratic member of the Republican-controlled Senate) brought suit against Governor Pataki, defendant Bruno (the Majority Leader of the Senate), defendant Silver (the Speaker of the Assembly), the Assemby, and the Senate.

In the words of the Court, the plaintiffs filed suit seeking a declaratory judgment:

in order to democratize the ways in which each house of the Legislature conducts its business. Plaintiffs seek to reduce certain benefits that the members of the majority party in each house enjoy, certain aspects of the control that the members of the majority party in each house exercise over the legislative process, and certain aspects of the control that the head of the majority party in each house exercises over the members of his party. In effect, the complaint alleges that, in each house, the majority has leveraged its numerical superiority so as to squelch debate among the members of the house, so as to place a strangle hold on proposed bills that are not favored by the leadership of the house, and more generally, so as to prevent members of the minority parties from effectively representing their constituents.

Of the 20 counts in the complaint, the only claims that survived the defendants' motion to dismiss were: 1) count XVI, which alleged that by authorizing the use of an auto-pen to sign messages of necessity the Governor violated a specific constitutional standard and 2) counts I and IV, by the Assemblyman and Senator, complaining of an unequal allocation of resources in violation of the equal protection provisions of the State and Federal Constitutions.