January 29th, 2019

Is the NYS Senate Restricting Your Speech?

I stumbled across this story quite by accident. The New York Legislature is in session and a flurry of bills are being passed. And I happened to look one of them up.

This post, however, isn’t about the bill but about the Senate’s website. Specifically, there is a comment section for the bills being proposed and passed, and that comment section has restrictions.

Restrictions? Yeah, you read that right. This is a website devoted to public policy, owned and operated as the official arm of the Senate, and it restricts what you can say relative to those policy issues. It restricts open debate, which any semi-conscious high school student will tell you runs headlong into the First Amendment.

The offending rules for the comments includes the completely subjective “hate speech,” about which there is no accepted definition, as well as things that are “off topic,” or profanity.

These are the comment rules that you can see near the bottom of any page that shows the status of bills, with a few highlights that I added:

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published.

But who decides what is off-topic? One need not be a long time denizen of cyberspace to see that many people think their comments are on topic while others think they’re off.

And what is profane? Are people restricted to George Carlin’s seven dirty words or is there some other list for people to consult? Is it my list or your list and what happens when one of our lists changes? And what happens if someone simply wants to write, “Fuck this bill“? You know what? The Supreme Court has already decided that this sort of profanity is protected speech. (Cohen v. California)

What is campaign-related if you object to a bill and its sponsors and think they should be tossed out of office on their ears for having proposed such fool-hardy nonsense?

Is it self-promotional if you give a personal story of what horror you think may befall your company if the bill is passed? Can you name your company?

And, most importantly, who is the gatekeeper for what people are permitted to say to their Senators via these comments?

I’m willing to bet that no legislator has ever given a thought to the comments section as it’s rarely used by my observation. But it’s prohibitions on speech seem to present clear First Amendment issues, making this a problem waiting to happen.

December 29th, 2018

Google Maps Comes to New York – and other legislative stuff

People love to yell and scream about those damn politicians, don’t they? Well, since fair is fair they should get a solid pat on the back for getting stuff right, shouldn’t they?

New York’s Gov. Andrew Cuomo signed a bill Friday that allows satellite-mapping services, such as Google Maps, to be admitted into evidence at trial. It was passed in the waning days of the last legislative session ending in June, and Cuomo just inked it. (Part of CPLR 4511)

I know, that’s a little thing, isn’t it? Especially since federal courts are already doing it.

But it’s one of those little things that oils the wheels of justice so that they creak along just a little bit more efficiently.

The bill summary is here:

“Allows judicial notice of an image, map, location, distance, calculation, or other information taken from a web mapping service, a global satellite imaging site, or an internet mapping tool, when requested by a party to the action, subject to a rebuttable presumption.”

And, of course, there isn’t anything even remotely partisan about it. It just makes it a little bit easier to move things along when you stand in the well of the courtroom.

Last year, for those that remember back that far, there had been several new laws regarding civil justice that improved things in New York, including a terrific change in Supplementary Uninsured/Underinsured Motorist (SUM) insurance, a change in the statute of limitations in medical malpractice cases to add a date of discovery rule for cancer cases, and a modest change in the venue law.

With the both legislative houses now in the hands of one party due to the Blue Wave that swept the country as backlash to Trump there is the opportunity for more progress (and yes, more mischief).

Maybe we will finally see the Grieving Families Act pass for the families of wrongful death victims?

Perhaps we can finally stop the judicially-created law that allows defense lawyers to interview a plaintiff’s doctors — off the record and without plaintiff’s counsel even being notified.

Maybe we will see some anti-SLAPP legislation?

(Hey, maybe, maybe we will even see my pet project, Eric’s Law, move forward to wipe out some of the last vestiges of the idiotic ad damnum clause?)

I’ll be watching, as the coming session has the opportunity to be one of he most significant in many, many years.

June 14th, 2018

NY Senate Passes 2nd Bill in 2 Weeks Restricting Free Speech

Dear NY Senate:

What the heck is going on up there in Albany? Last week you passed an anti-cyberbullying bill that restricts free speech and conduct in such a way that, if ultimately signed, is guaranteed to be tossed into the trash heap by courts because it violates the First Amendment.

And this week you do it again?! This time with your 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.

Now I understand it might have made you feel good to pass such a bill, and you get to boast to constituents that you are doing something in Albany, but do you realize what you have really done?

For the benefit of those who voted for the bill but didn’t read it, this is what is made into a misdemeanor:

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.

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.

So, let’s say, on disabled Ma’s birthday you (a caregiver) hold a party for her, even though she can only semi-appreciate it. Then you share those party photos on Facebook for your friends and non-attending family members. Guilty of a misdemeanor.

You should note that the bill doesn’t clearly say when the photos had to be taken. It’s a crime if just three conditions are met: that the subject of the picture is a “vulnerable elderly person,” that the person sharing it is a caregiver, and that the sharing is “without such person’s consent.”

So let’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 was he) as part of the Greatest Generation. Guilty of a misdemeanor.

And the same is true for sharing any other photo for such people taken during their lifetimes: From childhood, parties, weddings (including their own), vacations, anything you can think of.

Since New York has about 20 million people, do you appreciate the scale of how many misdemeanors are being created for sharing a photo of a disable loved one? Even if the Supreme Court did create a new category of restricted speech for this, the bill is both vague and over broad.

If this was a new category of restricted speech — you can’t post photos of incapacitated people without their consent — then the slippery slope also says it is OK to criminalize the posting of photos of other incapacitated people. Like kids. How many kid pictures are shared on social media?

The justification for this bill is that the posting of photos of disabled elderly people has become a problem:

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. Such action, dehumanize individuals and create an
environment that perpetuates a disrespectful and/or potentially
abusive attitude. Caretakers are required to provide care and services
in an environment that all individuals are treated as human beings.

How big is this problem that you think it justifies a change in the First Amendment that affects millions of people sharing loving photos of their elderly parents?

June 12th, 2018

NY Senate and Cyberbullying, Part 2

Last week I saw a tweet come into my feed from the NY Senate about the 56-0 passing of a cyberbullying bill. I quickly knocked out a post ripping it for two reasons: The complete lack of a definition and the fact that it violated the First Amendment.

That post was picked up by Scott Greenfield. Then Greenfield’s post was seen by Tim Cushing at Techdirt. Which in turn was seen by Eugene Volokh. A little old school blogging as people added thoughts.

Now I have more to add: The first being a semi-correction that includes some additional criticism of the Senate. But the second is some actual praise.

First, as Volokh pointed out, the bill was an amendment to the Education Law, and the Education Law has an existing definition of cyberbullying that is defined elsewhere. The first of the Senate’s failings was the lack of a reference to that definition section.

That lack of a reference, Greenfield points out today in likewise doing a second post on the subject, threw us both off as this isn’t the way New York usually drafts its statutes. As Greenfield notes:

Had it been the Senate’s intent to borrow the definition from another section of the Education Law to create its new crime, and, indeed, to establish the basic elements of the offense as would be minimally necessary for a crime to pass constitutional muster, there should have been a reference in the new crime to the definition upon which it relies. This is how New York laws are drafted, how a criminal offense is framed as to contain the bare minimum required to establish the elements of the offense.

It never occurred to Turk or me that there would be a New York law devoid of a definition or elements which would leave it to us to go searching the laws to figure out whether there was some definition, something to establish the elements of the offense, lurking in the darkness somewhere else. You don’t do that. You don’t create a crime and omit either the definition or an express reference back to the section setting forth the definition upon which the legislators relied.

This failure of form, hoping for an implicit reference to the definitions section that exists elsewhere, is the lesser of the two problems. Because that existing definition is so chock full of vagaries as to render it unconstitutional as a criminal statute. These are the provisions (as originally made into law for school administrative purposes, not criminal purposes):

the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying, that
(a) has or would have the effect of unreasonably and substantially interfering with a student’s educational performance, opportunities or benefits, or mental, emotional or physical well-being; or
(b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety; or
(c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student; or
(d) occurs off school property and creates or would foreseeably create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property.
Acts of harassment and bullying shall include, but not be limited to, those acts based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex. For the purposes of this definition the term “threats, intimidation or abuse” shall include verbal and non-verbal actions.

So let’s say that Student A passes Student B in the hall. A smiles at B. Then A texts to B, “I’ll see you on the playground at lunch!”

Are they friends? Enemies? Was A flirting with B? Threatening B? Does A simply want to hang out with B? Should B be afraid? Enthralled? Bored to tears?

Would this conduct and speech “reasonably be expected to cause a student to fear for his or her physical safety?”

Would this conduct and speech, unreasonably and substantially interfere with a student’s educational performance, opportunities or benefits, or mental, emotional or physical well-being?

Who the hell knows?

And if you can’t figure out whether something is a crime or not, then the law is vague. And it is likewise over broad as it will sweep up into its net perfectly innocent conduct and speech.

But there is another part to this posting. And that part is praise.

The praise is not for the bill, but for the Senate’s use of Twitter to quickly and cheaply disseminate information in an easily accessible form to the public.

For all the howling and caterwauling about how bad Twitter is, filled with bots, trolls, and those who think they will somehow “win” arguments and “own” their opponent, the one thing it is particularly good at is the rapid dissemination of information by public bodies.

That is how I easily found the bill’s Senate passage, and that is what allows us to publicly debate it’s merits.

So. The bill itself gets an F, but the Senate’s information distribution gets an A+.

December 19th, 2017

Cuomo Signs NY’s New Auto Insurance Law

Last night, New York’s Gov. Andrew Cuomo signed legislation that alters New York’s auto insurance law, and it’s a win-win deal for everybody.

While the law sounds uber-wonky, it’s quite important due to a fundamental misunderstanding of how auto insurance works by the general public.

Most folks think that the insurance coverage they choose — let’s say a 250K limit — will protect them if they’re involved in a collision. But it doesn’t. That insurance only covers other people.

You, the injured driver, must pursue the guy that plowed into you at the intersection because he was checking his texts, through the limits of his insurance policy. And if his insurance policy is only, let’s say, the bare minimum 25K because his job is flipping burgers and he doesn’t really have a pot to piss in, then you with your fractured pelvis are, as we say in the law, shit out of luck.

But wait! There is one small hope for you, and that hope lies in your own policy provisions for getting involved in a collision with an uninsured or underinsured driver. That provision is known here in New York as Supplementary Uninsured/Underinsured Motorist (SUM) insurance.

The problem? The default on your policy was the state minimum, just 25K. And you can’t even collect that if have received the 25K from the guy that plowed into you.

Only a savvy person — or one with a conscientious insurance broker that informed him — would know that you could elect more SUM coverage. Most don’t, because most don’t know. My own legislator wasn’t aware of this whenI discussed this bill with her a few years ago, and found out only when her daughter was injured in a collision and got caught in this trap.

That law is the one that has now changed. Now the default choice is your SUM insurance matches the underlying coverage that you picked. So if you have a 250K policy you will have 250K SUM, and get as much protection for yourself as you are giving to others.

The cost is minimal and people can easily opt out. The thing is, those that are picking more than the minimum amount of coverage are the ones who understand that they likely have the most to lose. That’s why they bought the higher coverage in the first place.

When a bill becomes a law that has no losers attached to it, it’s a win-win all the way around.

I wrote about this back in June when it passed in the closing hours of the legislative session. The vote was 62-1 in the Senate and 104-6 in the Assembly.

People complain often about dysfunctional governments. But when they get it right we should take notice with a little golf clap in their direction.