NY Senate Passes Bill That Would Make It A Crime To Publish Photos Of The Elderly Without Their Consent
from the still-trying-to-bypass-that-whole-First-Amendment-thing dept
The New York State Senate just keeps pitching unconstitutional law-balls over the plate, apparently assuming legislators' good intentions will overwhelm judges asked to determine just how much the new laws violate the First Amendment.
The senate recently passed an anti-cyberbullying bill -- its fifth attempt to push this across the governor's desk. The law couldn't be bothered to cite which definition of "cyberbullying" it was using, but once the definition was uncovered, it became apparent the bill has zero chance of surviving a Constitutional challenge should it become law.
Eugene Volokh's post on the bill passed along several examples of criminalized speech the bill would result in, including one with its finger directly on social media's pulse.
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.
The law makes this a Class A misdemeanor, which can be redeemed for a full year in jail if the prosecutor can get a judge to agree on handing out the maximum sentence. That law protects only minors from a variety of protected speech because everyone knows cyberbullying ends once victims turn 18.
The new law that's looking to steamroll protected speech addresses the other side of this generational gap. Eric Turkewitz was again the first person to spot the bad bill, pointing out it would criminalize the posting of photos of grandparents to social media if the photo's subjects suffer from any form of incapacitation and have not given explicit permission for their photos to be posted publicly. His post takes on the First Amendment ramifications of the NY Senate's latest oblique assault on free speech.
Elder Abuse Bill (S.409) that makes it a crime for caregivers (including family) to post photos on social media if elderly, vulnerable seniors aren’t able to give consent.
[...]
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.
So, like the law says, if you act as a caretaker for an elderly person -- someone who might be your parent, grandparent, or close friend -- you can be charged with a misdemeanor for posting photos of them without their consent. "Vulnerable" in this bill simply means about the age of sixty and "suffering from a disease or infirmity" which prevents them from providing for their own health or personal care. That's a whole lot of gray area to cover with a vaguely-worded bill. As Turkewitz points out in his post, this would criminalize a wide swath of social media sharing simply because someone in the photo did not explicitly consent to publication. He also notes it does not simply criminalize sharing photos of elderly people in incapacitated states. It criminalizes the publication of any photos taken at any point in time.
[L]et’s say that on Veteran’s Day you share a photo of your disabled WW II father for whom you sometimes care. He’s 20 years old in that long-ago-taken pic and in uniform. You are proud of his service as part of the Greatest Generation. Guilty of a misdemeanor.
The bill's supporters will almost certainly claim they never intended the law to be read that way. But the best way to prevent laws from being read this way is to craft them carefully, rather than just toss word salad on the senate floor and hope for the best.
But it's all cool with the senators who voted (again!) for an unconstitutional bill that criminalizes protected speech, because one time this bad thing happened.
Recent media reports have highlighted occurrences of a caretaker taking unauthorized photographs or video recordings of a vulnerable elderly person, sometimes in compromised positions. The photographs are then posted on social media networks, or sent through multimedia messages.
There's no better way to craft a bad law than typing something up quick to criminalize a thing you saw on Facebook. Jesus Christ. This is almost too stupid to be true. [Sobs into tattered copy of US Constitution.] You cannot use the First Amendment as a doormat just because some people are assholes.
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Filed Under: elder abuse, first amendment, free speech, new york, publicity rights, social media
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Can we pass a bill that sends politicians to jail for passing unconstitutional bills?
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finding marks for the "grandparent scam"
https://www.aarp.org/money/scams-fraud/info-2018/grandparent-scam-scenarios.html
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Re: finding marks for the "grandparent scam"
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Wait, Vine?
Err, isn't Vine long dead at this point? Seems like a bad sign in terms of how well they've thought this through, if their attention to detail is so bad they're citing social networks that don't even exist anymore.
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When they come up for election again, the politicians can list their support for the bill as some sort of accomplishment or proof that they are among the "good guys" because they supported a bill against bad stuff. And in an overwhelming number of cases, the strategy works perfectly. The people hearing the claim will just swallow it whole. The calculation is simple: abuse is bad and this bill is against abuse, therefore the bill is good and the politicians that supported it are good whereas those that opposed it are bad. Never mind that those who opposed it may have opposed it because they saw through the bullshit of the bill, and not because they are in favor of abuse. 99.9999% of voters won't examine the arguments against the bill.
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This bans 'Silver Alerts'
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This is to stop caregivers from posting embarrassing shots of their charges. It does NOT include family members, even when caring for their relatives. Nor would it stop Silver Alerts or posting a 60 y/o photograph.
This takes over where HIPPA stops.
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Try again as the bill states
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That may be what it's for, but that's not how it was written.
Yes it does. Bill Text Sections E(III),(IV)
Yes it would, if those postings were made without the elderly person's consent. There's no exceptions written into the law for Silver Alerts or specifications as to the age of the photographs.
Now, will it be used for such things? Maybe not. But can it be used? Absolutely. And that makes it a badly written law.
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Do you hate it with the passion of a thousand suns?? :)
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It's entirely justified.
You want to do grave damage to our Republic over trivial nonsense.
Even without our founding principles, this is minutia that doesn't warrant intervention of the nanny state.
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accepting exceptions
------------
The 1st Amendment states NO exceptions.
By conceding that government officials may rightfully "create" exceptions to the Bill of Rights -- you have negated the basic concept of a written constitution. You have endorsed the rule-of-men over the rule-of-law.
["Sobs into tattered copy of US Constitution."]
NY Senators pick & choose which parts of the Constitution they accept/reject ... and so do most Americans.
few people here shed any tears over the thousands of "exceptions" created to the 2nd Amendment, which states absolutely NO exceptions: "the right of the people to keep and bear arms, shall not be infringed."
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Re: accepting exceptions
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Re: accepting exceptions
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Re: Re: accepting exceptions
The Supremacy Clause of the United States Constitution (Article VI, Clause 2) establishes that the Constitution is the "supreme law" of the land.
The "opinions" of varied temporal swarms of government judges do NOT override the Constitution itself. Even the U.S. Supreme Court has NO authority within the formal Constitution to be the final arbiter of Constitutional interpretation.
And exactly where in Constitutional text do you see Federal authority granted to control ANY speech whatsoever of the populace. There is none.
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And exactly where in Constitutional text do you see Federal authority granted to control ANY speech whatsoever of the populace?
[Congress shall have the power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
-Article 1, Section 8, Clause 8
It's a pretty clear grant of authority, I don't know how you missed it during your in depth analysis of Constitutional text.
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It does not 'restrict' free speech any more than your legal inability to stroll into a local radio station ... and begin broadcasting your political views, without the station owner's permission. Property Rights always "limit" one's absolute freedom, in the broadest sense.
All laws restrict your personal freedom to greater or lesser degree.
Apples & Oranges
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And when there's a disagreement about what the Constitution means and whether a law is constitutional or not, who settles it?
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Nobody's disputing the authority of courts to interpret laws when they're not written clearly. What's unclear about "shall make no law"? To say that they can pass some laws is more than "interpretation", it's straightforward contradiction of the text.
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Well that's just deflecting the question. Who then decides whether a law is not written clearly? The Supreme Court has absolute authority to interpret the Constitution. Sometimes they will interpret it in ways you don't like. Many people choose to see "decisions I don't like" as "activist judges trampling on the true meaning of the constitution" but of course any decision will have a large number of people who don't like it. To believe your view is always correct and the Supreme Court is only doing their job correctly if they agree with you is just hubris.
The only way to change this scenario is with a constitutional amendment, but I'm not sure how the situation could be improved (besides the practical impossibility of doing so). I wouldn't want to give Congress or the President the ability to override the Supreme Court, would you? You can't let a lower court do it. The only other thing I can think of is referendum, and that sounds like a pretty sketchy idea too.
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Re: Re: Re: Re: Re: Re: accepting exceptions
I'm not sure you're being entirely fair, here.
In a hypothetical country with separate legislative and judicial branches but no Constitution, if the legislature passed a law which said in clear and absolute terms that "X is forbidden", and a court ruled that "in cases like Y, X is not forbidden", that wouldn't be just statutory interpretation; that would be blatant contravention of the text of the statute.
To argue that the same holds for similarly absolute statements in the Constitution doesn't seem problematic to me - and that does seem to leave it at the question of what statements in the Constitution are similarly absolute, and thus at the question of whether the wording of the First Amendment is such an absolute statement. Or, as the previous commenter put that latter question: "What's unclear about "shall make no law"?".
Muddying the waters, of course, are decisions - legislative and/or judicial - from the early days of the republic (which I seem to recall reading about even though I can't currently remember any of the details) that some particular bits of speech can be prohibited.
If the wording in the First Amendment was intended as an absolute statement of that nature, presumably the people who intended it as such would have opposed these decisions - but, IIRC, some of them actually supported if not outright made the decisions. That would seem to imply that the prohibition wasn't intended to be quite so absolute as its literal text would imply, which opens up the door to interpretation as to exactly what exceptions to the prohibition there might be.
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Right, and the Supreme Court decides that question.
Again, the Supreme Court decides if there's anything unclear about it, and nobody has the power to overrule their decisions. That's just how our system works, for better or for worse. You or I can find decisions we don't like, but as I said before, I don't know of a system that would be better.
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I see your point, particularly about the lack of ideas for a better system, and yet... wouldn't that argument apply equally well against any claim that the Supreme Court got it wrong in some particular instance, no matter how blatantly inconsistent with the underlying law a ruling may have been?
Yes, our system says that "when there'd disagreement about what a law means and whether it's constitutional or not, the Supreme Court settles that disagreement".
But taking that to such an extreme that pointing out that the Supreme Court has made a decision on the question is sufficient to counter any arguments against the decision and shut down debate strikes me as problematic, in a way at least distantly akin to the onetime tradition of only priests being permitted to interpret (or even read?) the Bible.
The Supreme Court is neither infallible nor incorruptible, though they've come closer to the latter over the course of their history than most other courts I could think of. It's entirely fair to argue, or even simply to assert, that they got it wrong in a particular matter - particularly so when the result of their decision seems to contradict the text of the (part of the) law which should govern the matter at hand.
Such argument or assertion could itself easily be wrong, of course. But saying "authority to decide that rests with the Supreme Court, and they disagree with you" is not a valid way of countering it.
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Yes, it applies across the board.
I didn't mean to shut down debate, or imply that because the court decided so, that means it's correct. I think it's important to debate these decisions. I was responding to this:
Article III states: "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
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That does shed some more light on things; thanks. (I could see room for objections based on the reputed-to-exist lack of explicit Constitutional authority for the doctrine of judicial review of the Constitutional validity of laws, but that would be another discussion.)
Taken literally and to the extreme, however, that principle would seem to imply that the Supreme Court could make any decision at all - including deciding to completely ignore any law or portion of the Constitution it wants to, even one which was adopted and worded specifically to overturn a previous Supreme Court decision - and the other branches of government would have no recourse. If true, that would seem like enough of a risk/problem enough that we shouldn't just ignore it under the principle of "can't think of a better approach".
Also, to return to an earlier detail which I realized later I hadn't clarified as much as I'd have liked:
In the context (of what I wrote that this was in response to), what I parse you as saying by this is "the Supreme Court decides the question of which statements in the Constitution are so clear and absolute that it is not within the authority of the Supreme Court to decide whether or not they are in fact that clear and absolute", which seems internally contradictory.
Even if it's not, that itself seems problematic. If the court sets the boundaries of its own authority, then its authority has no boundaries, which seems both undesirable in a democratic system and counter to the clear intent of the separation-of-powers design of the federal government.
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My understanding is the only recourse is for Congress to amend the law. If the decision is about the meaning of the Constitution, they would have to amend the Constitution.
To an extent. The Supreme Court has decided on its authority in the past, but it's always been on questions such as whether they have the authority to review a question of fact or law. If they were to decide that they also have the authority to, say, write new legislation, I don't know what would happen. Almost certainly those "laws" would not be considered to have force of law, but what would the other branches of government do about the rogue court?
Perhaps if we had it to do over again, we would make the Supreme Court's powers more explicit, but if it has the authority to interpret the Constitution, we'll always have this tension. And if it doesn't, then it doesn't serve much purpose. Maybe there would be a mechanism like a 3/4 majority of both houses of Congress plus Presidential signature to override a SC decision. Maybe add in 2/3 of the state legislatures or something like that. There would be a safety valve, but in practice it would be almost impossible to implement unless the court really went off the rails in a way everyone agreed on.
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But wouldn't the Court be able to decide to ignore the amendment, and still rule as if the amendment were not in effect?
I think the other branches could in theory add more justices to the court to break the (assumed for this hypothesis) corrupt majority, but I'm not sure there wouldn't be a way for the Court to ignore even that...
The only real solution in that case, that I see, would be for the executive branch to start declaring court decisions invalid and ignoring them - and unless extremely circumscribed and temporary, that itself would likewise represent a fatal breakdown of the systems of democracy.
(No response to the rest because I don't really see anything there to disagree with. I'm still curious about whether you agree on the "internally contradictory" thing, but satisfying my curiosity is not essential.)
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I suppose so, but then you're in full blown constitutional crisis. I couldn't begin to know what would happen at that point.
My position is that there is no question of law that is not within the authority of the SC to decide. So there's no contradiction, because there are no such statements.
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That's a self-consistent position, although it does leave the problem of "no boundaries on the Court's authority" for reasons already discussed - but then I'd want to ask: who decided that question? That is, who decided that there is no question of law which is not within the authority of the Supreme Court to decide, or (more importantly) for which it is not within the authority of the Supreme Court to decide that the wording of the law does not mean what it appears to mean?
I suspect that you'd point to the Founders, by way of Article III again, and you'd probably be right. That looks to me like a flaw in the design of the system, however, and one which we've only avoided having break the system thus far by the good fortune of having not had a sufficiently corrupt Supreme Court majority for any sufficient length of time.
I'm not sure there'd be any benefit to be gained from pursuing that further, however - we'd probably just end up recursing down the rabbit hole.
Thanks for an interesting discussion!
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I think that's right.
Thank you too, this has been enjoyable.
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Re: accepting exceptions
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Re: Re: accepting exceptions
... the copyright/patent clauses are certainly "constitutional" as written -- however, Congress/courts and government bureaucrats have so distorted them in practice -- that they are virtually unrecognizable from the original.
the ultimate problem facing American citizens is getting government officials to obey the Constitution. That has long proven an impossible task, with no hope of solution.
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Revenge Porn
Cyberbullying
and the most dangerous of all...
GRANNY GAWKING!!!!!!!!!!
The citizens should demand a refund for the salaries of these asshats.
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on their Treatment Of Tommy Robinson .
Don't worry People your governments not out to fuck you over.
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Real Purpose
None of you have sussed out the obvious about this bill yet?
It's entire raison d'être is to prevent unauthorized photos of the senators themselves!!! It will effectively outlaw Facebook and Twitter pics and selfies that include the NY Senate and its members. Especially including the embarrassing pics of them from college.
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Re:
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Copyright's new propaganda:
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Free speech. Not only for those with a permit
When someonw gets a permit to protest in some public area it doesn't mean that only you and your view on the issue has permission. The permit allows them to assign resources to an area where a lot of people are going to be. Now anybody can attend the event and say whatever they want. Just FYI.
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Elderly
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Do they really ...
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Incapacitated gives consent?
That is what incapacitated means, they cannot give consent.
The caregiver gives consent, if they have the Medical Power of Attorney. So the caregiver can give consent to themselves on behalf of the incapacitated person. If the elderly person is capable of giving consent, then the elderly person is not incapacitated in the first place. All this is an oxymoron.
Who is going to bring a legal complaint against the caregiver? The incapacitated person? How can they file a complaint if they are incapacitated? Will the caregiver do it for them? How does that work? The caregiver will file a complaint against herself on behalf of the incapacitated person? Why would they do that? All this doesn't make sense.
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