Opinion

ROOKE: Red State Bill Could See Residents Jailed For Online Speech

OPINION
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Mary Rooke Commentary and Analysis Writer
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The Oklahoma state Senate passed a bill in March that critics say is a chilling attack that could land Oklahomans behind bars for constitutionally protected free speech.

SB 1100 amends sections 1172 and 1953 of the Oklahoma Computer Crimes Act passed in 2021 to stop cyberbullying through any telecommunications, like texts, emails, phone calls, and posts made to online platforms. Under SB 1100, it would be unlawful to willingly “make any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, or indecent with intent to harass or threaten to inflict injury, physical harm, or severe emotional distress to any person.”

SB 1100

The Oklahoma State Senate passed SB 1100 by a 38-8 vote. The bill’s passing was praised by Oklahoma Attorney General Genter Drummond, who called it a “stronger anti-bullying measure” after the deaths of 17-year-old Mustang student Jot Turner and 16-year-old Owasso student Dagney “Nex” Benedict.

“Schools are seeing firsthand the crisis of teen suicide and how it can be stoked by horrific bullying,” Drummond said in a press release. “Laws cannot force people to be kind to one another, but we can ensure there are consequences to the sort of bullying that leads to tragedies such as those we have seen in Mustang and Owasso.”

There is no indication that Benedict’s suicide was a result of bullying. The local prosecutors declined to press charges against the students who engaged in a physical altercation with her the day before she died.

Oklahoma State Representative Chris Banning told the Daily Caller that SB 1100 was an attempt to tighten up previously passed legislation dealing with cyberbullying. However, the current version goes far beyond creating anti-bullying legislation.

“I don’t understand the intent besides trying to put a stamp on the death of a child. It irritates me that the death of a child is being used in such a political way. It shouldn’t be used, ” said Banning. (ROOKE: Fleeing To Red States Won’t Spare You From The War Against Wokeness)

“I’ve worked on this bill for three days straight, pretty much putting everything else aside because of how dangerous the language was,” he continued. “It’s already law in Oklahoma that if I tell you to stop texting me and you continue to text me, it’s against the law right now.”

The bill defines “severe emotional distress” to mean “significant mental suffering or distress that requires medical or other professional treatment or counseling.” Banning agreed this could mean Oklahomans are at risk for fines or jail time for simply misgendering someone online if that person receives counseling for being misgendered.

The penalties for breaking this law would be steep.

  • First offense: maximum $500 fine or one year in county prison or both
  • Second offense: maximum $1,000 fine or two years in the custody of the Department of
    Corrections or both
  • Third offense: maximum $100,000 fine or ten years in the custody of the Department of Corrections or both

Banning spoke with the Oklahoma Attorney General’s office about the language in SB 1100. He said the office signaled a willingness to help the legislature craft better language should it come back up for a vote. Banning offered to show an example of how easy it is to be annoying to someone via electronic communication. “Although they struck through the word annoying, they added the word harass. The definition of the word harass includes the phrase engaging in behavior that annoys,” which he pointed out was simply wordsmithing.

Ryan Haynie, the Criminal Justice Reform Fellow for the Oklahoma Council of Public Affairs, told the Daily Caller that while the term annoy has been stripped, including the intent to harass is just as worrisome.

“This law came to my attention two years ago, and I thought at the time it was likely criminalizing protected speech, especially where it said with the intent to annoy. Look, if annoying speech can be criminalized, we just need to shut down the internet,” he said. “Annoy is low-hanging fruit. If you look at the version now, they actually crossed through the word annoy because that’s an easy word for them to say that’s clearly over the line, but I don’t believe they see harassment as over the line.” (ROOKE: SCOTUS Has To Protect Kids From Genital Mutilation Because The Rest Of Society Wouldn’t)

“To me, the inclusion of harassment is problematic in part because when people speak in public, they might have a bunch of different reasons for speaking: one might be to get the point across or to make a point to a broad group of people; another might very well be to harass an individual who they feel has taken a position the speaker feels is not a good position. That is still protected speech,” Haynie said.

“At a bare minimum, they should put something to include that Section 1172 does not apply to constitutionally protected speech. It’s unnecessary, but it is a helpful signal to prosecutors, judges, and defense counsel,” Haynie added. “Is that something that’s necessary? No, because I can always defend myself based on the First Amendment, but if it’s in the statutory scheme, then a prosecutor who is looking at charging someone with a crime at least has to see that has to think to themselves, ‘Am I charging someone for something that is protected speech?'”

He said it seems that while they are trying to go after cyberbullying, the bill is attacking one-to-many speech, like posting on online platforms such as Facebook, Twitter and other social media sites.

Moms for Liberty Oklahoma told the Daily Caller it also has concerns that the broad language of this bill allows the State to create legislation that would jail Oklahomans over “hurt feelings.”

“The main issue is the added verbiage of ‘severe emotional distress’ to the current language.  If convicted, a person could be fined and/or jailed.  Every American should be alarmed by this, and every person should know that we cannot and should not legislate feelings. The Oklahoma Attorney General should know this better than the average person,” Moms for Liberty Oklahoma Tulsa County Chapter Chair Janice Danforth said. (ROOKE: Biden Looks To Deal Fatal Blow To Girls’ Sports)

“If we start creating laws to punish someone because they cause severe emotional distress, which is going to be drastically different from person to person, we are on a very slippery slope.  Who is going to determine the severe emotional distress, and what type of emotional distress is considered severe?  The answer to both of those questions is subjective, and because of that, this bill is dangerous,” she continued.

“SB 1100, authored by Sen. Paul Rosino, was created with the intent to crack down on bullying due in part to the suicides of Mustang student Jot Turner and Owasso student Nex Benedict.  AG Drummond applauded the passage of this bill through the Oklahoma Senate.  However, Moms for Liberty Oklahoma and other groups and individuals saw concerns with this bill, and many started to be vocal about those concerns.  This bill should not, in no uncertain terms, be passed into law in Oklahoma.  Moms for Liberty Oklahoma will continue to fight against this bill every session until it is put to rest,” Danforth added.

The bill, which had passed the state Senate, was initially scheduled to be put up for a vote in the Oklahoma House of Representatives on April 23, but it was pulled after critics warned that it attacked free speech in Oklahoma.

Banning doesn’t think his colleagues in the House will vote for the bill with its current wording, but that doesn’t mean it won’t come back. “It appears that our leadership can put any bill on the floor almost at any time. Just sling it back on the floor and make it happen. That’s the power of the leadership. So although this bill is dead, I am being very careful because it could arise very quickly with bad language,” Banning said.

SB 1100 is problematic in its current form, with harsh penalties that will surely chill free speech in the state. It is alarming that a bill like this passed a Republican-led state Senate with overwhelming support. The authors, Republicans state Sen. Paul Rosino and state Rep. Steve Bashore, did not respond to the Daily Callers’ multiple attempts to clarify their reasoning for authoring such a bill. The Oklahoma Attorney General’s office has yet to respond to the Daily Caller’s request for comment.