Researching the policy debates surrounding SOPA I came across “Dear Internet: It’s No Longer OK to Not Know How Congress Works.” Clay Johnson, its author, posted it in response to “Dear Congress: It’s No Longer OK to Not Know How the Internet Works,” which rightfully criticized members of Congress for their wilfull ignorance of fundamental aspects of Internet architecture during debates on SOPA. Johnson’s point is that “online activists, the free culture crowd, and the pro-open and free Internet crowd needs to get a clue too. See — it’s just as important for us to understand how Congress works as it is for the Congress to understand how the Internet works. In Washington, those who ‘educate’ Congress the best usually end up with the winning legislation.” As a teacher this is what most interests me, helping students understand how policy is translated into legislation and other modes of regulation. I’m not talking about the mechanics of How a Bill Becomes a Law, but understanding that law is the manifestation of policy. The topic of tomorrow’s Internet law class is “Architecture, Values, and Regulation,” introducing students to Larry Lessig’s concept that with respect to the Internet, Code is Law. (Here’s Lessig’s 2000 article by that title in Harvard Magazine; he developed the concept most fully in Code v.2.) It’s not surprising that after years of being the foremost thinker about modes of Internet regulation Lessig turned his attention to how money, lobbying, and corporate influence affects how policy becomes law.
On the Friday the Massachusetts house passed anti-bullying legislation by unanimous vote. The state senate passed similar legislation the week before. The governor has said he will sign the bill after the senate and house versions are reconciled. Proponents of legislative remedies to bullying praise the house’s version “because it requires school officials–bus drivers, cafeteria workers, teachers, and others–to report bullying to a school’s principal.” The house version, H4567, defines bullying in part as ““the repeated use by a perpetrator of a written, verbal, or electronic expression, or physical act or gesture . . . directed at a victim that causes physical or emotional harm or damage to the victim’s property; places the victim in reasonable fear or harm to himself or of damage to his property; [or] creates a hostile environment at school.’’ The Globe article linked above reports that principals [and perhaps others?} would be required to report to police any bullying that constitutes a criminal act. What line must be crossed for bullying to become criminal? The article does not say and I’ve not yet located the text of the bill. The house rejected an amendment that would have required school employees who do not report bullying be fined. “Some lawmakers said the lack of such of fine made the proposed law toothless; while others said that any official who does not report an incident would be subject to being fired.”
The article does not say whether anyone in the Massachusetts house or senate considered the First Amendment implications of their bills. “Written, verbal, or electronic expression . . . that causes . . . emotional harm” covers a lot of constitutionally-protected speech. I’m not optimistic that this bill will reduce bullying or that it will survive the inevitable First Amendment challenge.