By a vote of 56-0, the New York Senate passed passed a bill making cyberbulling a misdemeanor punishable by fine or up to one year in jail. Not a single senator voted against this bill, which has the huge virtue of being tough on crime and demonstrates their concern for children. Nobody wants to be on the side of cyberbullies, right?

Except there’s one question that didn’t occur to a single senator. What’s cyberbullying?

This isn’t exactly a new problem following the Court of Appeals holding in People v. Marquan M. that Albany County’s cyberbullying law was unconstitutional. The issue isn’t whether bullying isn’t a problem or doesn’t do harm, but defining what it is and doing so in a way that doesn’t violate the First Amendment. As Eric Turkewitz explains, that’s hard to do.

There is, of course, lots of conduct that we can all agree is bullying, right? A kid gets taunted by classmates for his less-than-personal personality, and it’s a no-brainer, right? Well, almost right. I mean, friends do this kind of stuff to their good buddies after all. It isn’t just for enemies. But still, let’s say it is an “enemy” of sorts — two kids that actually hate each other. How do they know where the line in the sand is located as to what is legitimate and what isn’t? So if Kid A wants to say that Kid B’s support of Trump is “idiotic” or “moronic,” or that Kid B seems to be a clueless asshat for believing what s/he believes, would that conduct, if done online, be cyber-bullying? How about if it didn’t involve politics at all, and was purely personal? Don’t we have a right to call each other schmucks?

This, of course, doesn’t begin to scratch the surface of the problem, neither from the perspective of what is bullying to what is free speech. It’s one of those words that people believe they know when they see, but when put to the test of defining, come up empty.

So the New York Senate came up with a solution in SB2318A:

12-A. CYBERBULLYING. 1. AS USED IN THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS: A. MINOR SHALL MEAN ANY NATURAL PERSON OR INDIVIDUAL UNDER THE AGE OF EIGHTEEN. B. PERSON SHALL MEAN ANY NATURAL PERSON OR INDIVIDUAL. 2. ANY PERSON WHO KNOWINGLY ENGAGES IN A REPEATED COURSE OF CYBERBULLYING OF A MINOR SHALL BE GUILTY OF AN UNCLASSIFIED MISDEMEANOR PUNISHABLE BY A FINE OF NOT MORE THAN ONE THOUSAND DOLLARS, OR BY A PERIOD OF IMPRISONMENT NOT TO EXCEED ONE YEAR, OR BY BOTH SUCH FINE AND IMPRISONMENT.

3. This act shall take effect immediately.

Notice anything missing there? No definition of cyberbullying. Not a good one. Not a bad one. None at all. It’s a misdemeanor to engage in a “repeated course of cyberbullying,” but what that might be is anyone’s guess.

Is the Senate trying to leave a huge, gaping hole for prosecutors to fill? Or maybe they figure that if the courts are going to be such constitutional sticklers, let judges come up with the definition? Is there any judge so ignorant of law that he wouldn’t toss any prosecution based on this law? Is there any judge willing to create a definition to fill the Senate’s gaping hole? It’s one thing to try to rationalize a statutory definition with constitutional limitations, but this one doesn’t stand a chance.

Turk makes the obvious legal observation:

There is no point passing version 2.0 of a law that will one day be ruled unconstitutional.

Of course it will, as there is no other conceivable option but to hold this ridiculous attempt to criminalize cyberbullying unconstitutional. But there is, of course, a “point” to passing this shockingly badly written law. It enables senators to tell their constituents how much they hate cyberbullying, how much they love children, how hard they worked to craft a law to criminalize one and protect the other. And when those mean ol’ judges trash the law because of that loophole called the Constitution, it will be on their robed shoulders.

Hard as it may be to accept, law is hard, and writing law is very hard. Sometimes, it’s impossible to draft a law that criminalizes conduct that is harmful and wrong because it’s subject to constant variation based on unique circumstances, and any attempt to define it inherently implicates the right to call someone a schmuck. And like it or not, we have the right to say words about other people with whom we disagree in America.

But this law is just a cynical attempt to game the emotions of the electorate, as it has absolutely no chance of passing constitutional muster. The senators didn’t even give it a try, and as much as they may not be the sharpest knives in the legislature, even they know that you can’t criminalize cyberbullying by defining it as cyberbullying.

The one thing they do know is that the voters won’t think any harder than they worked on drafting a viable law, and will kvell over their concern for the children. And really, isn’t the what law is all about, getting re-elected?