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Cyberbullying bill draws free-speech concerns from ACLU

Sen. Robert A. "Bobby" Zirkin, D-Baltimore County and chairman of the Senate Judicial Proceedings Committee. (File photo)

Sen. Robert A. “Bobby” Zirkin, D-Baltimore County and chairman of the Senate Judicial Proceedings Committee, is chief sponsor of the bill. (File photo)

ANNAPOLIS – Legislation to expand Maryland’s law against cyberbullying of youngsters drew criticism Tuesday from a free-speech advocate, who was in the unwelcome position of testifying after parents whose teenage daughter was driven to suicide by online harassment.

“My heart goes out to the families,” David Rocah, senior staff attorney at the ACLU of Maryland, told the Senate Judicial Proceedings Committee. “The question is whether the bill is constitutional. It isn’t.”

Rocah called the legislation “vastly overbroad,” saying it would outlaw communications protected under the First Amendment in an otherwise laudable effort to combat online bullying.

The measure would “criminalize a vast amount of speech,” Rocah said. For example, he noted that the bill could prohibit a victim of sexual assault from naming her attacker online or from texting about someone’s alleged racism.

Rocah spoke in opposition to Senate Bill 103, which would outlaw a one-time online bullying incident conducted with the perpetrator’s knowledge that his or her single post would likely be liked or shared multiple times. The legislation targets a post that intentionally intimidates, torments or harasses a minor.

The bill is “aimed at the communicative intent of the speech” and would apply to “communication as opposed to conduct,” thus violating the First Amendment, Rocah said.

But Sen. Robert A. “Bobby” Zirkin, the committee’s chair and the bill’s chief sponsor, said the bill passes constitutional muster because it is “narrowly tailored” to achieve the state’s “compelling interest” in protecting children from those who intend to harass them online.

“There are limits to the First Amendment’s unbridled free speech and this is one of them,” Zirkin said. “We have an obligation to protect these (young) folks.”

Zirkin’s support of the bill on constitutional grounds was supported by other members of the panel.

Sen. Robert Cassilly, R-Harford, said the free-speech protections of the First Amendment likely yield when the speech is intended to harm a specific child.

Sen. Chris West, R-Baltimore County, said the First Amendment does not apply to words intended to incite immediate lawless activity, which, he added, seems akin to hateful online comments directed at specific youngsters with the intention of tormenting them into harming or even killing themselves.

The controversial bill would expand “Grace’s Law,” a 2013 statute that makes it a crime punishable by up to a year in jail and a $500 fine to engage in a continuous course of bullying online. The law was named for 15-year-old Grace K. McComas of Woodbine, who killed herself on Easter Sunday in 2012 after being repeatedly bullied on social media.

Before Rocah’s testimony, Grace’s mother endorsed the law’s expansion, telling the committee that children have been “cyberbullied to death” from a single post that “goes out to hundreds at a time and then can be shared.”

“She (Grace) was a bright light and an injustice occurred that took her out of this life way too soon,” Christine McComas said. “She could not see out of the despair to a better day.”

Grace’s father told the panel that the internet enables bullies to “use words as a weapon,” with messages that are “amplified and multiplied.”

“As a father, I felt so powerless to help Grace,” Dave McComas said.

This General Assembly session marks the second year that Zirkin has introduced the bill.

In 2018, the Senate approved the measure, but it failed in the House Judiciary Committee, then led by Del. Joseph F. Vallario Jr., D-Prince George’s, who said he opposed the law on constitutional grounds.

Vallario, who lost his re-election bid in the Democratic primary last year, has been replaced as Judiciary Committee chair by Del. Luke Clippinger, D- Baltimore City.

The panel’s new vice chair, Del. Vanessa E. Atterbeary, D-Howard, is a lead sponsor of the House version of the legislation, House Bill 181.

Del. Jon S. Cardin, D-Baltimore County, is the primary sponsor of H.B. 181.

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