Could bullying and harassment become a criminal offense?
But unlike Carson’s proposed rule, Milton does not hold parents directly accountable. If fines are imposed on kids, parents usually will help make sure they get paid, Martin said. But if parents decline, the fine will remain on the child’s record until they get their first job or try to get a driver’s license.
A low profile
Martin is the one who first suggested the city adopt its anti-bullying ordinance after concluding he needed more flexible tools to discourage bullies.
The ordinance, he says, simply takes the existing harassment statutes, which would be a criminal misdemeanor charge if invoked, and translate them into a noncriminal “forfeiture.”
This allows the city to pursue cases that would technically be criminal under the harassment law, but are more properly addressed with a low profile.
The penalty could be a fine, but the judge has discretion to require a letter of apology of or some kind of community service. Martin has issued five or six citations a year since the ordinance was passed in 2010.
“Most of the kids stop after I warn them,” he said.
But most cases never come to that. Martin only engages the most severe cases, and draws a sharp distinction between the kind of behavior that requires intervention and the usual push and pull of the schoolyard.
Martin says he often has conversations with youth who complain about other kids spreading rumors behind their backs. “That’s called gossip,” he tells them, “and you just need to tell your own friends you don’t want to hear about it anymore.”
With this kind of restrained enforcement, Eugene Volokh is not surprised that Milton’s ordinance has survived four years without being shot down by the courts. It is too early to say if Carson would follow suit.
Vague and over broad?
As written, the Carson law certainly could reach well beyond where Jim Martin draws the line in Milton.
Supporters of the Carson ordinance say its legal grounds are based in state harassment law, Volokh notes, but he points out that California state law requires that the harasser actually “seriously alarm, annoy, or harass” the victim.
The Carson law's much broader and more vague language requires only that the harasser engage in behavior that “would cause a person to feel terrorized, frightened, intimidated, threatened, harassed or molested and which serves no legitimate purpose.”
It’s a subtle but critical distinction that puts enormous power in the hands of the authorities by removing the need for a victim to be “seriously” harmed.
Likewise, Volokh notes that Carson’s proposed law, unlike the state harassment law, attempts to regulate “hurtful, rude and mean” messages, reaching to social media and Web pages that make fun of people.
In describing cyberbullying, the proposed ordinance states that "it may include sending hurtful, rude and mean text messages; spreading rumors or lies about others by email or social networks; and creating websites, videos or social media profiles that embarrass, humiliate or make fun of others ."
Volokh worries that if any derogatory or mean-spirited communications could legally constitute harassment, local authorities will be empowered to decide when snark becomes a crime.
"This is not how our criminal law ought to work," he said.
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