Posted by Eugene Volokh:
Rep. Linda Sanchez Defends Proposed Outlawing of Using Blogs, the Web, Etc. To
Cause Substantial Emotional Distress Through "Severe, Repeated, and Hostile"
Speech:
http://volokh.com/archives/archive_2009_05_03-2009_05_09.shtml#1241740320
[1]Last week, I cricitized [2]Rep. Linda Sanchez�s bill that says,
Whoever transmits in interstate or foreign commerce any
communication, with the intent to coerce, intimidate, harass, or
cause substantial emotional distress to a person, using electronic
means to support severe, repeated, and hostile behavior, shall be
fined under this title or imprisoned not more than two years, or
both....
[�Communication�] means the electronic transmission, between or
among points specified by the user, of information of the user�s
choosing, without change in the form or content of the information
as sent and received; ...
[�Electronic means�] means any equipment dependent on electrical
power to access an information service, including email, instant
messaging, blogs, websites, telephones, and text messages.
I gave [3]several examples of the kinds of speech the law might turn
into a federal felony, but for now let me just give two of them,
merged into one:
I try to coerce a politician into voting a particular way, by
repeatedly blogging (using a hostile tone) about what a hypocrite /
campaign promise breaker / fool / etc. he would be if he voted the
other way. Or I repeatedly blog the same after the vote, because I
want the politician to feel ashamed and publicly condemned. I am
transmitting in interstate commerce a communication with the intent
to coerce or substantially distress using electronic means (a blog)
�to support severe, repeated, and hostile behavior� -- unless, of
course, my statements aren�t seen as �severe,� a term that is
entirely undefined and unclear.
Others criticized the bill as well.
Yesterday, [4]Rep. Sanchez defended her bill, on the Huffington Post.
Check out her response, and see what you think. Here�s what I think:
1. Sanchez�s post nine times mentions the need to protect children (or
�young� people). But the proposed law is not in any way limited to
speech aimed at a child. It three times mentions the �anonymity� of
the Internet. But the proposed law is not in any way limited to
anonymous speech.
2. So what about speech that�s aimed at adults, including adult
Congresswomen and other public figures? Sanchez tells us, �bloggers,
emailers, texters, spiteful exes, and those who have blogged against
this bill have no fear.� �Congress has no interest in censoring speech
and it will not do so if it passes this bill. Put simply, this
legislation would be used as a tool for a judge and jury to determine
whether there is significant evidence to prove that a person
�cyberbullied� another. That is: did they have the required intent,
did they use electronic means of communication, and was the
communication severe, hostile, and repeated.�
But the whole problem is that bloggers, newspaper commentators whose
columns are posted online, and others are not protected against the
law, precisely because much constitutionally protected speech is said
with an intent to coerce or substantially distress, is severe, is
hostile, and is repeated.
([5]Show the rest of the post.)
Sanchez writes that �the Act would give judges and juries discretion
to recognize the difference between an annoying chain email, a
righteously angry political blog post, or a miffed text to an
ex-boyfriend and serious, repeated, hostile communications made with
the intent to harm.� Yet that�s a false dichotomy: What about serious,
repeated, hostile righteously angry political blog posts made with the
intent to coerce a politician to change her policies? What about
serious, repeated, hostile online newspaper columns made with the
intent to substantially distress a politician (or a leading business
figure or some such) whom the speaker is angry at?
What in the statute authorizes judges or juries to distinguish those
from the �serious, repeated, hostile communications made with the
intent to harm�? Nothing -- those statements (and many other
statements that are constitutionally protected) are serious, repeated,
hostile communications made with the intent to harm, and under Rep.
Sanchez�s proposals would be federal felonies.
3. Sanchez argues that �Slander and libel law provide for different
standards when the injured party is a public official or private
person, and nothing in the Megan Meier Cyberbullying Prevention Act
attempts to override that principle,� and points to the judges� and
juries� �discretion� (see the quote a couple of paragraphs above) as a
means of implementing that principle. But the statute says not a word
about any such distinction. Where are judges and juries to pick up on
that? Are they just to intuit it? Plus, first, unguided jury
discretion is itself a First Amendment problem, because of the risk
that juries will apply the law in viewpoint-based ways. And, second,
even speech that distresses private people is generally
constitutionally protected.
4. Sanchez points to existing First Amendment exceptions as
justifications for her proposal, but those exceptions are narrow, and
far removed from what she�s talking about. It�s true that the Court
has held that there is no value in false statements of fact, Gertz v.
Robert Welch (1974) (which is why libel, slander, false statements of
fact, identity theft, and false commercial speech are unprotected).
But that hardly explains why it�s permissible to ban true statements,
as well as statements of opinion.
Likewise, it�s true that the Court has recognized that true threats of
violence are legally punishable. But that narrow exception hardly
applies to �severe, repeated, and hostile� speech that�s �inten[ded]
to coerce, ... harass, or cause substantial emotional distress.� In
fact, the Court has repeatedly held that even speech that�s coercive
-- for instance, through fear of social ostracism -- and extremely
distressing is constitutionally protected, even against mere civil
liability. See, e.g., NAACP v. Claiborne Hardware (1982); Hustler
Magazine v. Falwell (1988). The Court has never accepted the notion
that the narrow and historically recognized exceptions to protection
justify a broad range of �reasonable regulation of speech.�
And to cover her other examples, the law generally doesn�t criminalize
�sexual harassment,� and doesn�t make civilly actionable the posting
of sexist or sexually offensive statements on Web sites; any such
liability would likewise be unconstitutional. And �stalking�
restrictions are constitutional only if they�re far more narrowly
crafted, for instance limited to repeated speech to a particular
person, rather than speech published on Web sites and blogs (two items
that the law expressly covers).
This is exactly what free speech maximalists often argue when new
exceptions, however narrow, are suggested: Sure, this one is narrow,
but what others will be argued by analogy to them? The slippery slope
is a serious concern in a legal system that�s based on precedent and
analogy. We�re seeing Sanchez trying to slip another step down, by
analogy to restrictions that are very different from the one she is
proposing. And if she prevails, what other restrictions could then be
defended by analogy to her new �cyberbullying� exception.
([6]Hide most of the above.)
5. Sanchez reports that her proposal was run by a �variety of experts
and law professors.� I would like to see even one statement from one
such expert that would explain how this law is constitutional. The law
is clearly unconstitutionally overbroad. And to the extent that one
tries to cure that breadth by reading things into it that don�t appear
on the text (say, a �public figure�/�private figure� distinction
somehow shoehorned into the words �severe� or �hostile�), it is
unconstitutionally vague.
But Sanchez�s defense of the law as written troubles me even more. If
Sanchez did want to limit the law to speech aimed at children, or
focus only on individualized communications and not blog posts or
other speech aimed at the public at large, or exclude public figures
or matters of public concern, she could easily amend the bill.
Yet apparently she doesn�t want to impose such limitations. The ban on
�severe, repeated, and hostile� speech -- including on �blogs [and]
websites� -- that�s intended to �coerce, ... harass, or cause
substantial emotional distress to a person,� including adults and
including politicians, seems to be exactly what she wants.
References
1. http://volokh.com/posts/1241122059.shtml
2. http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.1966:
3. http://volokh.com/posts/1241122059.shtml
4.
http://www.huffingtonpost.com/rep-linda-sanchez/protecting-victims-preser_b_198079.html
5. file://localhost/var/www/powerblogs/volokh/posts/1241740320.html
6. file://localhost/var/www/powerblogs/volokh/posts/1241740320.html
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