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Eli Baumwell: There ought not be a law (Opinion)

We find ourselves again in the wake of tragedy, with legislators promising new laws to curtail those tragedies, even over basic constitutional concerns.

No, I’m not talking about the scourge of gun violence in America; I’m talking about bullying among adults.

The story prompting this discussion is tragic and horrific. It’s alleged that several people conspired to circulate revealing photos of a local woman — both digitally and in public spaces — ultimately resulting in her jumping to her death from the New River Gorge Bridge in 2017.

But as tragic as this story is, it should not result in a rush to change our laws, as state Sen. Patricia Rucker, R-Jefferson, has proposed.

The Gazette-Mail acknowledged the First Amendment concerns of Rucker’s plan to change the state’s bullying statute, but gave a full-throated endorsement to the plan in an Aug. 8 editorial anyway.

Let me be clear: These concerns are very serious, which is why this law should not be changed.

We are finally waking up to the horrors of America’s mass-incarceration crisis, which has been fueled by the belief that every undesirable act should be punished with jail time. But creating new crimes — in this case, the criminalization of certain types of speech and expression — is not an appropriate response to the very real problem of cyberbullying.

Those championing this change suggest it would be rarely invoked, but experience shows us otherwise. Prosecutorial restraint is often in short supply.

Far too often, new laws are eventually used against the very people they were supposed to protect. For example, when minors are charged with producing child pornography for taking a nude selfie.

Laws that could limit the First Amendment in any way should be narrowly tailored. Let us recall that the early versions of West Virginia’s cyberbullying revenge-porn bills would have criminalized emailing someone the iconic “Napalm Girl” photo from the Vietnam War.

Even if not prosecuted, these laws would have had a chilling effect on free speech and expression. Adults engaged in a rigorous online debate could suddenly find themselves guilty of a crime. “I’ll know it when I see it” is a bad standard for criminal conduct.

Deference for the First Amendment means narrowly tailored laws that occasionally might contain some gaps.

Other legal recourses were and are available in this case, without potentially criminalizing speech. Civil liability, which the family is pursuing, is another way to hold people accountable in the legal system. Other criminal charges were potentially available.

Perhaps, the greatest failing of the legal system was that the court — the victim’s employer — fired her for being the target of this harassment.

This is a frustrating and heartbreaking case, and it’s easy to feel like justice hasn’t been served here.

But we cannot add to our mass-incarceration crisis and subvert the First Amendment in our desire to right every wrong.

Most of us have said something or shared something that unintentionally hurt someone’s feelings. In fact, most of us have probably said or shared something intending to be cruel. While we should strive for better, this is not — and should not be — criminal.

Words and expression have power. It’s because they have power that we should be extremely reluctant to criminalize their use.

Eli Baumwell is the policy director

for the ACLU of West Virginia.

Funerals for Sunday, August 18, 2019

Combs, Amy - 5 p.m., Bible Center Church, Charleston.

Michael, Sherry - 2 p.m., Handley Funeral Home, Danville.

Morrison, Ray - 2 p.m., Morris Funeral Home, Cowen.

Smith, Robert - 3 p.m., Curry Funeral Home, Alum Creek.

Stump. Arleen - 1 p.m., Roach Funeral Home, Gassaway.

Wright, Gary - 2 p.m., Preston Funeral Home, Charleston.