Charged With A Crime? Better Check Your Facebook Pictures

The New York State Senate just keeps pitching unconstitutional law-balls over the plate, apparently assuming legislators' good intentions will overwhelm judges asked to determine just how much the new laws violate the First Amendment.

The senate recently passed an anti-cyberbullying bill -- its fifth attempt to push this across the governor's desk. The law couldn't be bothered to cite which definition of "cyberbullying" it was using, but once the definition was uncovered, it became apparent the bill has zero chance of surviving a Constitutional challenge should it become law.

Eugene Volokh's post on the bill passed along several examples of criminalized speech the bill would result in, including one with its finger directly on social media's pulse.

An under-18-year-old high school student becomes a nationally known activist, for instance for gun control or transgender rights or some such. People repeatedly mock his arguments online, and condemn his as an idiot, which a prosecutor thinks is "verbal abuse" and "would reasonably be expected to cause ... emotional harm" to him. The people can be prosecuted, and will be convicted if the jury agrees with the prosecutor.

The law makes this a Class A misdemeanor, which can be redeemed for a full year in jail if the prosecutor can get a judge to agree on handing out the maximum sentence. That law protects only minors from a variety of protected speech because everyone knows cyberbullying ends once victims turn 18.

The new law that's looking to steamroll protected speech addresses the other side of this generational gap. Eric Turkewitz was again the first person to spot the bad bill, pointing out it would criminalize the posting of photos of grandparents to social media if the photo's subjects suffer from any form of incapacitation and have not given explicit permission for their photos to be posted publicly. His post takes on the First Amendment ramifications of the NY Senate's latest oblique assault on free speech.

Elder Abuse Bill (S.409) that makes it a crime for caregivers (including family) to post photos on social media if elderly, vulnerable seniors aren’t able to give consent.

[...]

First off, while the First Amendment says that Congress “shall make no law…abridging the freedom of speech,” and the amendment applies to the states, there are still some very limited exceptions to it. But this just isn’t one of them.

The First Amendment is no defense to conspiracy discussions about committing a crime, or defamation, or inciting imminent lawless action, or obscenity or copyright.

I don’t see posting pictures of elderly Ma or Pa on that list. For this bill, if signed, to pass constitutional muster, the Supreme Court would have to create a wholly new category of restricted speech. Do you think they will do that? Or more importantly, did you even analyze that?

My guess is no since this bill passed 61-0, and there are more than a few lawyers in the Senate.

Here's what's being criminalized by this law:

A PERSON IS GUILTY OF UNLAWFUL POSTING OF A VULNERABLE ELDERLY PERSON ON SOCIAL MEDIA WHEN, BEING A CAREGIVER WHILE PERFORMING THEIR DUTY OF CARE FOR A VULNERABLE ELDERLY PERSON, HE OR SHE POSTS AN IMAGE OR VIDEO OF SUCH PERSON ON SOCIAL MEDIA INCLUDING, BUT NOT LIMITED TO FACEBOOK, YOUTUBE, TWITTER, INSTAGRAM, SNAPCHAT, TUMBLR, FLICKR AND VINE, WITHOUT SUCH PERSON'S CONSENT.

So, like the law says, if you act as a caretaker for an elderly person -- someone who might be your parent, grandparent, or close friend -- you can be charged with a misdemeanor for posting photos of them without their consent. "Vulnerable" in this bill simply means about the age of sixty and "suffering from a disease or infirmity" which prevents them from providing for their own health or personal care. That's a whole lot of gray area to cover with a vaguely-worded bill. As Turkewitz points out in his post, this would criminalize a wide swath of social media sharing simply because someone in the photo did not explicitly consent to publication. He also notes it does not simply criminalize sharing photos of elderly people in incapacitated states. It criminalizes the publication of any photos taken at any point in time.

[L]et’s say that on Veteran’s Day you share a photo of your disabled WW II father for whom you sometimes care. He’s 20 years old in that long-ago-taken pic and in uniform. You are proud of his service as part of the Greatest Generation. Guilty of a misdemeanor.

The bill's supporters will almost certainly claim they never intended the law to be read that way. But the best way to prevent laws from being read this way is to craft them carefully, rather than just toss word salad on the senate floor and hope for the best.

But it's all cool with the senators who voted (again!) for an unconstitutional bill that criminalizes protected speech, because one time this bad thing happened.

Recent media reports have highlighted occurrences of a caretaker taking unauthorized photographs or video recordings of a vulnerable elderly person, sometimes in compromised positions. The photographs are then posted on social media networks, or sent through multimedia messages.

There's no better way to craft a bad law than typing something up quick to criminalize a thing you saw on Facebook. Jesus Christ. This is almost too stupid to be true. [Sobs into tattered copy of US Constitution.] You cannot use the First Amendment as a doormat just because some people are assholes.

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