Be Best? Michigan’s Better Than That

Guest Opinion

By Amy Kerr Hardin | April 20, 2019

Last year First Lady Melania Trump unveiled, albeit awkwardly, her “Be Best” campaign. Its centerpiece is preventing cyberbullying among youth. The anemic and unprofessionally executed rollout was against the backdrop of her husband’s steady stream of puerile Tweets, most of which can be easily dismissed as petty, though some have taken on a sinister specter in the form of a thinly veiled call for violence. 
 
Trump didn’t invent online bullying, but he’s raised it to an art form.
 
A new law prohibiting certain types of cyberbullying just took effect in Michigan. The House Fiscal Agency, the nonpartisan body responsible for analyzing legislation, described the need for the statute as a response to technologies that open “a new avenue for bad conduct that harasses or causes injury to another person.” Michigan is among a number of states that have already enacted online bullying laws pertaining to students, but those are limited in scope and do not apply to non-school activities.
 
So, what exactly is cyberbullying, according to the new law?
 
Cyberbullying, for the purposes of this initiative, is defined as posting a message or statement in a public media forum, such as Facebook, Twitter, Reddit, et al., that meets these two requirements: It is intended to cause harm or create fear of harm in the target, including death, while expressly stating the intent to commit violence against that person. And, the message is delivered such that the subject will readily know it is meant as a threat. The law additionally imposes greater penalties for a “pattern” of harassment or threats, defined as a series of two or more separate, non-continuous posts that fit the above criteria.
 
While we can say that cyberbullying is like porn — we know it when we see it — the importance of having a narrowly defined scope is critical to the law withstanding judicial scrutiny.
 
There were multiple concerns about this cyberbullying ban being an overreach because there are already a number of statutes, well established in precedent, that can stand in. The argument was that laws governing defamation and something called “harassment by proxy” could put a cyberbully on ice. Defamation though, might not apply because sometimes the bully doesn’t use slanderous language — they might just call for violence inspired by a factual circumstance they find offensive. The proxy claim applies to when the bully is inciting others to do their dirty work for them — a law that would certainly work in this case, but only if that was the arena in which the bully played.
 
By enacting the new statute, lawmakers concluded that the old laws were vague and outdated, or simply non-applicable. The old rules rarely provided meaningful legal cover for targets of cyberbullying. The new law tries to eliminate ambiguity and aspires to draw clear and applicable guidelines for law enforcement and the courts.
 
Yet, Michigan’s statute will likely draw judicial scrutiny, as have many similar legislative efforts in other states. The key factor in the law’s ability to stand up in court is how tightly it’s written.
 
Several years ago, a New York state cyberbullying law was struck down as a First Amendment violation in a case where a young gay man took his life after experiencing horrific online attacks. While the courts drew a clear and obvious line from the bullying to the suicide, they were forced to strike down the entire statute because it was so poorly written. They found the law could potentially “criminalize a broad spectrum of speech outside the popular understanding of cyberbullying.” The statute actually had a provision to ban “annoying” communications — whatever those are.
 
In a similar case, in North Carolina, that state’s supreme court canned a student cyberbullying law for its overreach, saying “Civility, whose definition is constantly changing, is a laudable goal but one not readily attained or enforced through criminal laws.”
 
The Michigan law, however, is very well crafted, containing no extraneous or ambiguous language. Having read hundreds upon hundreds of pieces of legislation over the years, this package of two concise bills struck me as among the cleanest I’ve encountered. There is little room for misinterpretation, and they will likely withstand even the heartiest judicial review.
 
Thus, it would be unwise to find yourself on the wrong side of Michigan’s cyberbullying law. The statute is fairly stiff in terms of penalties — even at the initial misdemeanor level. The maximum sentencing guidelines for a first offense buys the bully 93 days in jail and lightens their bank account by $500. A second go-round is one year behind bars, and they can additionally kiss $1,000 bye-bye. Next up come the felony-level offenses. This is where a “pattern of harassing or intimidating behavior” that results in harm to the target, including emotional and physical manifestations, earns the perpetrator five years and a $5,000 setback. If harassment results in a related death, including third-party murder, stress-induced causes, or suicide, the troll can enjoy 10 years in an orange jumpsuit and a $10,000 fine.
 
This law only applies to abuses occurring within the state.
 
On the national stage, Trump has set the tone for his followers on social media, in particular invoking escalating hateful vitriol as an acceptable norm. He’s made lone wolf calls against journalists and those with whom he disagrees. The world has already seen death and violence perpetrated in his name. 

Amy Kerr Hardin is a retired banker, a regionally known artist, and a public-policy wonk and political essayist at www.democracy-tree.com.