The New York Senate keeps throwing unconstitutional laws on the table, assuming that the good intentions of the legislators could be too much for the judges in court who would be trying to determine if, or how much the new laws violate the First Amendment. A new bill from the New York Senate says that publishing photos of elderly without their permission is illegal.
The recently passed anti-cyberbullying bill had been pushed across the governor’s desk for the fifth time. However, the law didn’t determine specifically which meaning of “cyberbullying” was used in the bill. However, now that it is determined, it doesn’t look like it will have good odds of surviving a Constitutional challenge in case it becomes law.
The post by Eugene Volokh regarding the bill brought several examples of how criminalized speech looks that the bill could take into account, which includes speech that is likely found on social media.
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“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.”
Protected until the victim turns 18
The law classifies this situation as a Class A misdemeanor, which conviction can end up with a year in jail if the prosecutor can get the judge to pass the maximum sentence. Moreover, only minors are protected by the law, from a range of protected speech.
Law concerning the elderly
However, the new law could make publishing photos of elderly illegal, in case they haven’t given their permission in posting the photo. Commenting on the bill, Eric Turkewitz pointed out that publishing photos of elderly on social media would be criminalized if the subjects in the photo suffer from some kind of incapacitation and haven’t given explicit permission about the photos being posted online. In his latest post, he points out that it is the New York Senate’s latest assault on free speech.
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.”
The New York State Senate once again takes a stab at restricting free speech, this time with a detailed definition.
— Eric "Hot Spot" Turkewitz (@Turkewitz) June 12, 2018
So, as the law said, if a person is a caretaker of an elderly person, or he or she is your parent, grandparent or a friend, you can be charged with a misdemeanor because of publishing photos of elderly without their permission. In this bill, “vulnerable” means that the victim is an elderly person of 60 or more years who is “suffering from a disease or infirmity” which prevents them from taking care of themselves on their own. That being said, according to Turkewitz, the wide variety of photos on social media would be criminalized just because someone in the photo didn’t explicitly give their permission on publication of the photos.