Back in the days of the Roman Empire, the mad Emperor Caligula had the penal code placed at the top of a tall column in the Forum. Judges soon got tired of shinnying up and down whenever they had to look up the law and started secretly improvising instead. Hence the origin of “judicial discretion.” It was not until the invention of the file cabinet that laws were printed on paper and it began to be considered bad form to enforce them without fair notice of what they were.
So we were flabbergasted to learn from Simple Justice that the NY State Senate has just passed a bill criminalizing cyberbullying without providing a smidgen of a definition of what conduct constitutes that offense. Surely the law has to be struck down as unconstitutional.
Fugettaboutit, says Justice Bludgeon, the controversial Brooklyn judge who tried to return Manhattan to the Indians for a refund. In a case of first impression, he writes:
Defendant Stinky K. stands charged with cyberbullying after texting 125 “Yo mama” jokes to her classmates. As an initial matter, we reject her claim that the statute is void for vagueness. Laws are presumed to be constitutional, otherwise they wouldn’t have been passed.
To be sure, a superficial reading of the statute might suggest that it contains no definition of cyberbullying. But statutory construction must not be nitpickingly over-technical. The Legislature is not obliged to adhere to a rigid litany, catechism or rosary. As Supreme Court Justice Potter famously observed regarding hardcore pornography, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.” Indeed, any law enacted for the purpose of protecting children is by definition constitutional.
That is not to say, however, that the statute at issue does not suffer from a grave deficiency: it is not named after a child. But it is not for this Court to cure legislative oversights.
We accordingly find Stinky K. guilty as charged. Sentence will be imposed as soon as the bill is passed in the Assembly and signed by the Governor.