Congress could act within its Art 1 Sec 8 powers and still restrict speech. It’s easy to imagine that Congress would try to regulate, say, interstate commerce in altar wine used in Catholic churches but not in Protestant ones.

Well, except that regulating speech, or regulating alter wine only for Catholics, is improper.

I don’t see the distinction you’re trying to draw. Criminalizing certain verbal acts is not a power given to Congress, as made explicit in the First Amendment. Unless you’re trying to make the Hamiltonian argument that the Bill of Rights is unnecessary because Article I Section 8 should suffice.

I don’t think the first amendment was unnecessary. Congress could act within its Art 1 Sec 8 powers and still restrict speech. It’s easy to imagine that Congress would try to regulate, say, interstate commerce in altar wine used in Catholic churches but not in Protestant ones.

Maybe I can express what I was getting at with my distinction this way:

You can attack this law in at least two ways: first amendment, or enumerated powers. Best of luck before this Court with your commerce clause argument! If this law goes down, it’s going down on first amendment grounds. However, many “harassment” laws do not run afoul of the first amendment. I could see some being overbroad, but I would imagine that most states have some law making it a criminal act to use words to harass, and I don’t mean explicit verbal threats of violence.

So my point is that I agree with those who have commerce clause problems with this law, but I disagree with those who have first amendment problems with this law, and I’d like to hear those arguments.

alkali: Further to rick.felt’s comments, I have wondered why these kind of situations could not simply be prosecuted under Missouri state criminal statutes of general application, including:

Because then that would leave overzealous Assistant US Attorneys in Los Angeles with nothing to do?

Can’t have that – they might turn their attention to enforcing the nation’s immigration statutes or something.

rick.felt: Gabe:What? How is that remotely responsive to what I wrote?I asked whether this proposed law was objectionable because:(a) criminalizing certain verbal acts was contrary to the first amendment; OR(b) Criminalizing certain verbal acts is not a power given to Congress. I’m open to the idea that Congress doesn’t have the authority to regulate what a woman named Lori says to a girl named Megan. I’m less open to the idea that all harassment laws are unconstitutional on first amendment grounds.

I don’t see the distinction you’re trying to draw. Criminalizing certain verbal acts is not a power given to Congress, as made explicit in the First Amendment. Unless you’re trying to make the Hamiltonian argument that the Bill of Rights is unnecessary because Article I Section 8 should suffice.

1. involuntary manslaughter (defined under Missouri law as “recklessly causing the death of another person”),

2. child abuse (“knowingly inflicting cruel and inhuman punishment upon a child less than seventeen years old”),

3. harassment (“to engage in a course of conduct directed at a specific person that serves no legitimate purpose, that would cause a reasonable person to suffer substantial emotional distress, and that actually causes substantial emotional distress to that person”), or

4. stalking (intentional harassment).

A new federal criminal statute does not seem necessary when all of those statutes (and their counterparts in other states) are available.

(To be sure, I don’t claim that Ms. Drew is guilty of any of these crimes — I don’t know the particular facts of the situation. My point is that if the issue is whether Ms. Drew, by her conduct, recklessly caused the death of another person,” then the question is whether she is guilty of involuntary manslaughter — either she is or she isn’t, and no additional statutory apparatus seems necessary.)

Rick, extortion is extortion; the words can be used to prove a larger extortion scheme. But the prosecution would be focused on that.

Also, Chairman Scott’s opening statement recommended opening Section 230 of the CDA. John Palfrey of Harvard concurred with this recommendation.

Ranking Member Gohmert garnered some chuckles when he questioned the worth of the Wasserman Schultz bill, HR 3630. He questioned whether the government should spend “$120 million in Chinese money we’ll have to borrow” for a matter that should be handled by parents and teachers.

What? How is that remotely responsive to what I wrote?

I asked whether this proposed law was objectionable because:
(a) criminalizing certain verbal acts was contrary to the first amendment; OR
(b) Criminalizing certain verbal acts is not a power given to Congress.

I’m open to the idea that Congress doesn’t have the authority to regulate what a woman named Lori says to a girl named Megan. I’m less open to the idea that all harassment laws are unconstitutional on first amendment grounds.

“Nice store you got here, Mr. Jones. Isn’t this a nice store, Vito?”

“Sure is, Tony. It’d be a damn shame if some punk kids from the neighborhood ever vandalized it. Kids these days…”

No “direct, explict threats of… criminal activity.” Tony and Vito are exercising their first amendment rights. None of the government’s business.

rick.felt: So are we opposed to all laws against intimidation and harassment on first amendment grounds, or are we opposed to this because it exceeds Congress’ authority? I can get behind the latter, but I’m not about to read a right to harass into the first amendment.

The Constitution does not claim the right to authorize any interactions between private individuals; it is solely and entirely devoted to defining and limiting the powers of government. Just because Congress shall pass no law against X does not in any way mean that we should personally feel morally justified in performing every possible iteration of X.

The law under which Drew was prosecuted was a bad one because it criminalized the breach of a private contract, i.e., violation of private terms of service. I don’t believe it follows from that, however, that no criminal laws could cover Drew’s acts.

Drew’s trial wasn’t a first-amendment case. The facts that there were no existing statutes that covered her acts and that what she did involved speaking does not imply that the reason that there was no law was because it would be repugnant to the first amendment. Prof. Kerr has a duty to his client, but the idea that criminal statutes against verbal harassment are always unconstitutional is absurd.

rick.felt says:
So are we opposed to all laws against intimidation and harassment on first amendment grounds, or are we opposed to this because it exceeds Congress’ authority? I can get behind the latter, but I’m not about to read a right to harass into the first amendment.

Can the sort of conduct sought to be targeted by the bill (as well as by the criminal prosecution in the Lori Drew case) be addressed by a tort action, or would that also be barred by the First Amendment?