Posted by Eugene Volokh:
Annoying Anonymous Speech Online:
http://volokh.com/archives/archive_2006_01_08-2006_01_14.shtml#1136923654
People are [1]troubled by a just-enacted statute that extends part of
telephone harassment law to the Internet. I think they're right to be
troubled by it, and here's why.
First, the statute, with deletions marked by strikeouts and insertions
marked by underlines:
47 U.S.C. § 223(a)(1)(C): Whoever ... in interstate or foreign
communications ... makes a telephone call or utilizes a
telecommunications device, whether or not conversation or
communication ensues, without disclosing his identity and with
intent to annoy, abuse, threaten, or harass any person at the
called number or who receives the communications....
(h)(1) The use of the term �telecommunications device� in this
section --
(A) shall not impose new obligations on broadcasting station
licensees and cable operators covered by obscenity and indecency
provisions elsewhere in this chapter; [DEL: and :DEL]
(B) does not include an interactive computer service [= any
information service, system, or access software provider that
provides or enables computer access by multiple users to a computer
server, including specifically a service or system that provides
access to the Internet and such systems operated or services
offered by libraries or educational institutions][DEL: . :DEL] ;
and
(C) in the case of subparagraph (C) of subsection (a)(1), includes
any device or software that can be used to originate
telecommunications or other types of communications that are
transmitted, in whole or in part, by the Internet ....
What does this practically mean?
1. This potentially criminalizes any anonymous speech on a Web site
that's intended to annoy at least some readers, even if it's also
intended to inform other readers. This is true whether the poster is
berating a government official, a religious figure, a company that he
thinks provides bad service, an academic who he thinks is doing or
saying something misguided, a sports figure who he thinks is
misbehaving, or what have you; so long as he's trying to annoy any
recipient (whether the target, if the poster thinks the target is
reading the blog, or the target's partisans or fans).
2. How is this different from traditional telephone harassment law?
The trouble is that the change extends traditional telephone
harassment law from a basically one-to-one medium (phone calls) to
include a one-to-many medium (Web sites).
This is a big change. One-to-one speech that's intended to annoy the
one recipient is rarely of very much First Amendment value; people are
just rarely persuaded or enlightened by speech that's intended to
annoy them. It has some value (see item 3 below), but to the extent
that it's in some measure deterred, the loss to public debate isn't
that great -- speakers are still free to speak to others besides the
person they're trying to annoy.
But one-to-many speech that is intended to annoy one or a few readers,
but intended and likely to enlighten or persuade many other readers,
is potentially much more valuable. Juan might think that the target of
the speech deserves to be berated for his misconduct, and that the
target's supporters deserve to be berated for siding with the target;
but Juan might also want the rest of the public to hear about the
target's misbehavior, and to be persuaded to think less of the target,
or to act differently themselves.
Though the desire to annoy may sometimes be petty (and I'm using Juan
just because Juan is our one anonymous coblogger here, not because
Juan generally tries to annoy people!), it shouldn't strip the speech
of constitutional protection. "[2][I]n the world of debate about
public affairs, many things done with motives that are less than
admirable are protected by the First Amendment.... [E]ven when a
speaker or writer is motivated by hatred or ill will his expression
was protected by the First Amendment ...." And the same is true, I
think, in discussion of consumer matters, of religion, of sports, and
of other things, not just public affairs.
3. [3]Orin suggests that this isn't a problem, because even
traditional telephone harassment law has already been limited to
exclude "speech [that] is protected by the First Amendment." Orin
cites [4]United States v. Popa, a case that set aside as
unconstitutional a conviction of Ion Popa, who made several racist
calls to the U.S. Attorney for the District of Columbia (the chief
federal prosecutor in the District). The trouble, though, is that it's
far from clear just what speech Popa protects.
A. One possible interpretation of Popa is that it bars telephone
harassment prosecution when the "speech is protected by the First
Amendment." At some level, that's almost tautological -- of course
when the speech is protected by the First Amendment, the First
Amendment prohibits prosecution for that speech. But it also returns
us to the underlying question: When is speech that's intended to annoy
the recipient protected by the First Amendment? If someone calls not a
prosecutor but a law professor and leaves an anonymous deliberately
annoying racist message, is that protected? What if he calls a law
student with such a message? What if he posts an anonymous blog post
that says this? The poster would have little guidance about what he
may or may not say.
Of course, when prosecuted, the speaker can say "my speech is
protected by the First Amendment." But given that the statute draws no
distinction between what constitutes protected annoying anonymous
speech and what constitutes unprotected annoying anonymous speech, the
speaker doesn't know what he may safely say, and the prosecutor
doesn't have much guidance about what he should prosecute. It's as if
Congress enacted a whole bunch of speech restrictions but tacked on an
"except if the First Amendment prohibits this" to them. The result
would be speech restrictions that are technically not overbroad (since
by their terms they don't bar First-Amendment-protected speech), but
that are practically too vague, since they provide little guidance to
people about what they may say.
B. Another possible view is that the telephone harassment statute bars
any prosecution for speech unless the speech falls within the
traditional First Amendment exceptions, such as threats, obscenity
(which means hard-core pornography), false statements of fact,
fighting words, and the like. These exceptions are at least tolerably
well-defined, and all of us already generally have to avoid speech
that falls within these exceptions (since the federal and state
governments have taken advantage of most of these exceptions to in
fact outlaw or at least make tortious speech that fits in the
exceptions).
But if that's the interpretation of Popa, then most garden-variety
telephone harassment, of the sort that most people assume is fully
prosecutable, would be unpunishable. Calling someone anonymously
simply to insult them wouldn't be covered (such insults don't fit
within the "fighting words" exception, since the anonymity and
distance of the speaker makes it unlikely that the speech will start a
fight). Likewise for calling someone to make an indecent suggestion,
except when the suggestion is an actual threat of violence or is so
sexually explicit as to be obscene (which is a pretty high threshold
to meet). The very premise of telephone harassment law, as it's
generally understood, is that some such speech -- while protected in
many media -- is unprotected when said with the intent to annoy (and
perhaps said to a particular person). Harassment law thus rests on the
theory that there should be a new First Amendment exception recognized
for "telephone harassment" that goes beyond just threats, fighting
words, and the like. So the "speech is protected unless it's threats,
fighting words, obscenity, incitement, or false statements of fact"
theory is thus almost certainly not what Congress has had in mind, and
is unlikely to be adopted by the courts.
C. Popa can easily be read, I think, as holding that speech that's
"intend[ed] in part to communicate a political message" is protected
from punishment by the statute. But it's far from clear that this
would protect speech on a Web site that's intended to communicate a
message about some company's allegedly mistreatment of its consumers,
that's intended to criticize the performance of a sports figure,
that's intended to express an annoying view about theology, or
whatever else. What's more, it's often not easy to tell exactly what's
a "political" message and what's not. The court in Popa held that
racist insults of a high-level official are political. What about
speech that criticizes law professors (whether racist speech, speech
that casts aspersions on their intellect or teaching ability, or what
have you)? What about speech that criticizes a particular student in
racist terms, but implicitly conveys a message about school
admissions? (Not that I would endorse such speech, of course; I just
think that (a) it ought to be constitutionally protected, when posted
on a Web site, even if it's intended to annoy, and (b) there's likely
to be controversy about whether it's political.)
D. Finally, Popa can also be read as holding that speech is protected
from the statute when the speaker "intend[ed] to engage in public or
political discourse." "Public discourse" is broader than just
"political message," and would certainly include religion and probably
consumer matters involving large businesses and the like. But it too
is a pretty vague term. Is publicly distributed personal criticism of
a particular professional's skills, for instance, a lawyer's or a
professor's, "public discourse"? There's no well-established First
Amendment test for this, and the Court's use of the related term
"public concern" has proven to be unpredictable and, I think, often
misguided (see [5]Part V.B of this article, starting with PDF page
46).
So on balance I think the extension of the telephone harassment
statute to the Web is a mistake. The statute already has problems, and
the extension risks substantially exacerbating those problems, by
potentially covering one-to-many annoying Web speech as well as the
somewhat less valuable one-to-one annoying telephone calls.
References
1. http://news.com.com/2010-1028_3-6022491.html
2. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=485&invol=46
3. http://volokh.com/archives/archive_2006_01_08-2006_01_14.shtml#1136873535
4.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=dc&navby=case&no=983017A
5. http://www.law.ucla.edu/volokh/speechip.pdf
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