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New Jersey Employment and Civil Rights lawyer discusses New Jersey's Internet Harassment Law

"Or... Oh yeah, the internet."

I find myself a bit conflicted about New Jersey's Internet Harassment Law, L 2013, c.272.

On the one hand, as a civil rights attorney, I want to see hatred, bigotry and passive-aggressive abuse curbed (and as a parent, I want to freeze bullies in carbonate like Han Solo). Yet on the other hand, I don't want to see uneven or unfair treatment of speech simply as a response to a surging political movement instead of, as all law should be, representing a sound, considered response to a problem.

Please allow me to explain.

For the longest time, New Jersey has had a Criminal Harassment statute, NJSA 2C:33-4. This statute makes it a petty disorderly person's offense if one "harasses another" or makes a communication in offensively "course" language, or undertakes a communication "in any other manner likely to cause annoyance or alarm." The punishment for a petty disorderly person's offense has always been modest, keeping in line with the fact that a disorderly persons offense is significantly below the level of true "crime." In New Jersey, a true "crime" is a felony, an offense represented by four different degrees of seriousness.

The reason I feel conflicted, of course, has to do with the history of the movement to get this bill passed.

As with all legislation of the modern era, the legislation is invariably a response to one or more persons arguing that a particular issue has to be addressed in a particular way. As might be expected, and as is perfectly natural in a democracy, the instigators for any particular piece of legislation usually have a fairly biased and myopic view about what ought to be done and why it ought to be done. The victims of a particular type of crime, or a particular type of societal wrong, are going to have a strong emotional - and thus political - investment in getting the situation redressed.

And that's fine; that's how politics often works. Folks is folks, and all that.

Of course, the job of legislators, on the other hand, is to not be emotional. It's their job to respond sensibly, thoughtfully and soberly to the instigation for a legislative fix, no matter how emotional their constituents might be. Then, as a body politic, they execute their duty to uphold and defend the Constitution by debating the issue and deciding whether or not to pass a law. If they do, the law needs to be measured, appropriate, fair, balanced and sound.

Of course, that sounds great, and as a kid, I remember the sentiment expressed in the various Schoolhouse Rock cartoons on Saturday morning which taught our generation civics, history, science and nutrition ("I'm just a Bill, yeah I'm only a Bill, and I'm sittin' here on Capitol Hill..."). It's nice to believe in the Pollyanna view of legislative politics, but now that we've had our little fantasy, let's look at the reality.

There are two political parties and isolated candidates representing variously differing views under the rubric of independent, socialist, etc. But by and large, there are republicans and there are democrats. Also by and large, there are conservative republicans and progressive republicans, and conservative democrats and progressive democrats. Where you place a particular person of a particular party on the "spectrum" of conservatism and liberality usually depends on one's subjective point of view and on where the individual legislator happens to have placed themselves during recent voting.

But in accepting this, let's be mature about it. Politicians respond most quickly and most decisively when they feel as if the manner of their response is going to score them points with the voters upon whom they depend for reelection. It's very easy in the late 20th and early 21st centuries for a legislature to respond to an issue by passing a "strong" law that seems to protect - sensibly - a large constituency of people who perceive themselves to have been victims of something universally castigated. After all, who likes a bully?

It makes sense, therefore, that a large class of victims aren't going to get shouted down by any "opposing" view. When's the last time you heard from a lobbyist for bullies?

I therefore get - we all get - why the new internet harassment law was passed. As a civil rights attorney, I deplore the use of the internet in the passive-aggressive way that people tend to use it to harass and abuse others. In other blogs in the past, I've talked about the biology of human beings and how we were evolved to talk to one another. All mammals on this planet, including us, communicate by sight, scent and other factors. Mammals depend largely upon looking at one another. We don't really conscientiously assess one another when we communicate, but there is a great deal of unconscious assessment going on. Body language, tone, facial muscles, intonation - even pheromones - all contribute to how we view, mostly unconsciously, interpersonal communication.

That method is fairly well time-tested. Humanity is several hundred thousand years old, and our immediate antecedents are approaching a million to two million years old, depending on the current anthropological view. That's a long time for nature to get it right. Then along comes the internet, and all of that goes out the window.

No longer does a bully or harasser need to confront the humanity of their victim, and in so doing, their own humanity in the process. The reason that there were fewer bullies growing up when I grew up is because there was no internet to help them escape the immediate consequence of what they did. They had to look at their victim and decide to bully anyway. Yet nowadays, it's so easy to just hit a key and not confront the pain that you're causing (until later, or never). It's also easy for your toadies and audience to hit "I like this" or to contribute their own nonsense on Twitter (or wherever else) without themselves confronting the harm that they're doing in rooting for the bully. Back in my day, not only did the bully have to confront their own humanity in bullying, but the people who were his "fans" also had to look at what it was they were rooting for. That's why bullies usually didn't have that many fans, just a few henchmen. Nowadays, bullies have thousands or millions of accomplices, depending on what they're doing and how they are doing it. And because they don't have to see and confront their victim and thus confront their own humanity (and maybe not do the bad thing), there are more of them.

We're raising a generation of sociopaths.

But I digress. My point was that I hate the internet's ability to enable people to harm others with speed, efficiency, non-accountability and effectiveness borne of volume, on a scale no bully in my day ever imagined.

And a lot of harm has been done. We have "revenge porn", where someone posts intimate or embarrassing photographs after a relationship goes bad. We have the cutting and pasting (assisted by easy to use advanced technology) that allows someone to be made to appear as if they're engaging in conduct that is embarrassing or humiliating. We have surveys on "who would like so and so to kill themselves," etc. It's a disease.

But does it make sense to make it a felony if it happens on the internet, but to leave it not as a DP offense if it happens otherwise?

Now understand, I'm not arguing that the disorderly persons conduct ought to be felonized. I'm also not arguing that the internet version of this law shouldn't have been passed and that there shouldn't be significant punishment.

If I give the benefit of the doubt to the people who wanted the statute passed and to those who passed it, I think that they would argue that the consequences of internet harassment, including as it does a far wider audience and far more "permanency" than person to person communication, merits felonious treatment. That's a very good argument.

On the other hand, there's a free speech issue here. When a person is on trial for violation of the DP statute, there are "limiting" instructions that are given to a jury in a jury trial, and which the Judge must apply if the Judge is tying a case without a jury, to balance the rights of free speech vs. the right of a victim to be free of what the harassment statute prohibits. It's a fine balance and an important one. We can never become a culture that regulates the content of all speech or which anticipates content of speech and starts to curtail the right to speak. Will these same protections apply to the internet version? I don't know.

I applaud the felonization of internet harassment as a civil rights lawyer, but also as a civil rights lawyer, I'm concerned about the felonizaiton of internet harassment.

It's not easy being me.

I'm not arguing for a change to either statute. I guess what I'm saying is that I'm concerned about the speed with which the felony-internet version of the statue was passed. I want to make sure that accused victims have their rights even more vigorously protected (because it's a felony that travels with them the rest of their lives) than the rights of a person accused of the DP version of the harassment statue are now protected. With greater punishment should come greater vigilance and assurances of fairness and liberty for the accused as well as political validation for the victim.

I have a feeling this isn't the last time I'll talk about this. I'm glad the issue was addressed vis-a-vie the internet, because the internet is a disaster. I'm just not sure if this was the right way to address it, but I'm going to withhold judgment until I see how this pans out.

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