Michigan's Proposed Anti-Bullying Law
Monday, November 07, 2011
There is a good discussion over at Streak's Blog on "religious" exception. In looking at the rest of the law, I see some potential problems, but before I get on my soapbox, I wanted to see what other people thought. Here is the main portion of the Bill.
SB 137, Section 10:
(b) "Bullying" means any written, verbal, or physical act, or any electronic communication, by a pupil directed at 1 or more other pupils that is intended or that a reasonable person would know is likely to harm 1 or more pupils either directly or indirectly by doing any of the following:
(i) Substantially interfering with educational opportunities, benefits, or programs of 1 or more pupils.
(ii) Substantially and adversely affecting the ability of a pupil to participate in or benefit from the school district's or public school's educational programs or activities by placing the pupil in reasonable fear of physical harm.
(iii) Having an actual and substantial detrimental effect on a pupil's physical or mental health or causing substantial emotional distress.
(iv) Causing substantial disruption in, or substantial interference with, the orderly operation of the school.
Does anyone see any potential problems with the language of this bill?
5 comments:
I am assuming you see some sort of free speech issue.
It seems to me that there is a pretty high threshold and that speech is not the qualifying factor in the act of bullying under the statute. The actions of the bully must "substantially interfere" with the ability of the person to obtain an education. That isn't speech any more than saying that the stalking laws/personal protection orders (PPO) interfere with a stalker's ability to travel freely.
Not being able to yell “fire” in a crowded room does not limit my ability to discuss fire. Context and the impact on others is important in the law.
This, I think, is why "enumeration" of the traits-which-cannot-be-bullied is so important. Without a list of stuff bullies can't rip on and punch for, then the prohibition on the act of bullying becomes sorta moot IMO.
I get what Senator Jones was trying to do: he was trying to define what bullying *is* without getting his hands dirty on the "YOU SAID TEH GAY" issue from the nutjobs. It is nearly elegant, but again, I do see a problem in that without the list of unbulliable traits, trying to legally nail someone for "substantially interfering" might be tough. It could get into territory that you're afraid of; that certain protected speech could be seen as bullying.
That said, I'm kinda with Bob on this. Yeah, sure, someone can tell a gay kid, calmly and matter-of-factory "the bible says gay people are condemend." But at what point does that statement, when used every day, in their face, actually cross the line from ''statement of religious belief" to bullying? It's about context, and the language you show on the post supplies that context. You're not saying it to say it, bully. You're saying it to fuck with me.
My concern as that some of the language may be overly broad. The stalking laws require you actually do something that is specifically directed at a person and it must be done over and over.
What does it mean to be directed at one or more people? Does this include a group of people, such as a religious group or political party?
I think that interfering with a person's educational opportunities is fairly narrow and makes sense. People should be able to go to school without being harassed and intimidated. This is only one of the areas, though. The iii'rd talks about an effect on a person's mental health. What does that mean? Depression? An adjustment disorder? Being upset? At what point does it become criminal behavior?
Stalking, defamation, and other forms of criminal speech require some kind of direct, intentional, action. This law includes indirect action. Could a student that writes a blog be charged for writing something that is offensive, but directed at a specific individual?
I don't think a person should be able to go up to a gay kid in school and calmly say they are condemned. I think that could interfere with their ability to get an education. That same person that condemns homosexuality in a blog or some other similar medium, shouldn't be criminally charged in my opinion.
I can understand what the legislature is trying to do, but you have to consider not just the intent of a law, but the possible scope. Anti-child porn laws that were designed to stop the trade in kiddie porn have been used to charge teens that take pictures of themselves and send them to a friend as a joke. Certainly stupid behavior, but does it warrant a felony charge.
I thought maybe indirectly was so it could apply to threats over facebook etc, but that was a geuss on my part.
Steve - don't be shocked by poor bill drafting. This is a work of art compared to some of the bills I have read.
Parts of it are very well drafted. I am also aware that some over zealous prosecutor going after free speech would likely face a challenge from the ACLU.
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