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N.Y. Courts overturn cyberbullying law; workplace bullying bill on shaky ground

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An employment law web site notes that “since 2003, twenty-one states have introduced legislation to combat private workplace bullying but none have been passed into law.” But an anti-bullying bill known as the “Healthy Workplace Bill” (S. 3863) passed the New York Senate Labor Committee on June 3.

A recent ruling by the New York Court of Appeals provides additional fodder for critics of overly-broad bullying legislation, such as bills that restrict supervisors’ criticism of employees or hold employers liable for hurtful or offensive remarks by a worker’s peers.

On July 1, New York’s highest court struck down Albany County’s cyberbullying law, finding it unconstitutionally overbroad even as to minors, in its 5-to-2 ruling in People v. Marquan M. As UCLA law professor Eugene Volokh notes, the ordinance criminalized “disseminating … personal … information” about any person, if it’s done “with the intent to … annoy …, abuse, [or] taunt” and “with no legitimate private, personal, or public purpose.”

This First Amendment ruling logically also limits the reach of workplace bullying laws. Advocates of broad workplace bullying laws have argued that the First Amendment does not apply to private workplaces. But the First Amendment does apply to government action, which includes the government imposing rules and regulations on speech in private workplaces. For example, a federal appeals court ruled that if a government official pressures a private employer to take action against someone for his speech, that can violate the First Amendment, see Korb v. Lehman, 919 F.2d 243 (4th Cir. 1990) (pressure on defense contractor to fire employee). Two other appeals courts reached similar conclusions. Dossett v. First State Bank, 399 F.3d 940 (8th Cir. 2005); Reuber v. U.S., 750 F.2d 1039 (D.C. Cir. 1985).

Pressure on a private institution to restrict speech can violate the First Amendment rights of the individual whose speech is restricted or limited by that institution as a result. For example, the federal appeals court in New York ruled that a city official’s letter urging a billboard company to stop displaying a church’s anti-homosexuality billboard potentially violated the First Amendment, since the letter cited his “official authority as ‘Borough President of Staten Island’ and thus could constitute an “implicit” threat, even though the official lacked direct regulatory authority over the billboard company and did not explicitly threaten any reprisals. See Okwedy v. Molinari, 333 F.3d 339 (2d Cir. 2003); see also Rattner v. Netburn, 930 F.2d 204 (2d Cir. 1991) (reviving free speech lawsuit by businessman over village’s pressure on Chamber of Commerce not to publish his ad in its publication).

New York’s anti-bullying (“Healthy Workplace”) bill contains language somewhat similar to that declared unconstitutional on campus in the Saxe, DeJohn, and McCauley cases decided by the Third Circuit Court of Appeals.

As we noted earlier, the term “bullying” is increasingly being used as an excuse for censorship of speech protected by the First Amendment, such as anti-abortion advocacy, publicly revealing the names of students who vandalized a pro-life exhibit, student newspaper editorials criticizing gay marriage, and criticism of shoddy academic research on subjects like the history of firearms.

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