Some state laws ban "criminal harassment," including behavior defined more or less as
Engag[ing] in a course of conduct [= a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose] or repeatedly commit[ing] acts which harass or intimidate the person and which serve no legitimate purpose.
The broadest body of caselaw I've seen on this has been in Wisconsin; the statute I just quoted is the Wisconsin one, Wisc. Stat. Ann. 947.013. Note that this is a very different provision than "hostile [work/educational/public accommodations/housing] environment harassment," with entirely different elements; all they share is the label "harassment," and the capacity to restrict speech because of its content.
Here's a specific interest that I think helps illustrate the problems with such laws: Several Fond du Lac residents live near a convicted sex offender (a Michael A. Allen). They printed copies of that offender's Wisconsin Department of Corrections Sexual Offender Registry Registrant Information web page, and publicly posted it in various places -- at a gas station, at a YMCA, and several trees and telephone poles. They were then arrested for harassment. The arresting officer's report explains that the arrest happened
because [the arrestees'] conduct served no useful purpose. Michael Allen is following the rules of the registration system and is not breaking any laws. It appears to be the intent of the suspects to force Michael Allen to move from the area.
I take it that defendants believe their conduct does serve a legitimate and useful purpose -- it may inform their neighbors about the possible danger posed by Allen. Even if they intend to try to get Allen to move, that too may be useful for them and their children, though of course it may lead Allen to move to become a possible threat to other children (for reasons I note below, I don't see him as much of a threat, but obviously they do, and the law does require registration for offenders like Allen).
Moreover, the Court has made clear that people have a right to republish public record criminal justice information, even when it consists of the names of rape victims. (See Florida Star v. B.J.F.) Surely people have at least as much right to republish such information about criminals. (For more, see here.) So I think their speech can't be criminalized.
But more broadly, it seems to me that regardless of whether such speech could be prohibited under a clearly and narrowly drafted law, the current law, which punishes "harass[ing]" speech said with "no legitimate purpose" must be unconstitutionally vague. It gives no meaningful guidance to speakers who want to know if they'll be criminally punished, or to police officers, prosecutors, judges, and juries. It thus poses all the problems that Grayned v. City of Rockford (1972) identified as constitutional defects of vague laws:
First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.
Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.
Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to "`steer far wider of the unlawful zone' ... than if the boundaries of the forbidden areas were clearly marked."
By the way, Allen's offense (as reported in the press) strikes me as very minor as sex crimes go:
Court records show that Allen was convicted in 1998 of second-degree sexual assault of a child for receiving oral sex from a 15-year-old girl. The records show that Allen was 16 years of age at the time of the incident, which occurred in 1997 in Shawano County. In a victim statement included with court documents, the 15-year-old girl said it was her idea to perform the sexual act. She also wrote that she didn't think it was Allen's fault or that he should get in trouble.
It seems to me that even if consensual 16-/15-year-old sex should be criminalized, it should not be subject to sex offender reporting (certainly not longterm reporting), or at least any such reports should clearly note the nature of the offense (something the Wisconsin sex offender page does not). Such reporting is not only unfair to the offender, but also harmful to the community, because it misleads the public into overestimating this threat, and distracts them from other possible threats.
Nonetheless, while this would have been good reason for Wisconsin not to place Allen's records on the sex offender site (unless there was something more to the sexual contact than the newspaper reports), and this might make the neighbors' actions morally suspect (if they knew the nature of Allen's crimes), it doesn't strip the actions of constitutional protection. The First Amendment includes the right to convey information even about crimes that many may consider minor (though note that Wisconsin law, which makes the crime a felony and a reportable sexual offense). One might argue that the neighbors' speech is so incomplete as to be false, but I don't think that's right; I take it, for instance, that newspapers couldn't be criminally prosecuted if they accurately reported that someone was convicted of a certain crime, but failed to give all the details that might show how minor the crime was, and the same must be true here. And in any event, none of the facts of Allen's case can remotely justify punishing speakers under the amorphous "no legitimate purpose" standard.
Note also that the same defendants were also arrested for getting into a fight with the offender over the offender's coming onto their property to remove a copy of the sheet that they had posted on their own property. That, though, is a separate charge, which I'm setting aside for now.
Anyway, Professor Volokh, when you write,
I think your first paragraph explains why he's got a false-light claim. But for reasons hinted at in your second paragraph, and for the the reasons McClurg pointed out long ago (Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places, 73 N.C.L. Rev. 989 (1995)), having a valid invasion of privacy claim and having an invasion of privacy claim a court will label valid are totally unrelated to each other.
Sexual Offender registries tend to be far to broad, encompassing acts which, as EV noted, may be illegal, but are certainly not of a predatory nature.
But yes, too, parents should be able to ascertain whether a sex offender lives next door. Their behavior, given such knowledge, ought not be of the criminal nature itself.
There is a legitimate interest in informing the community about a possible danger. That right however can be abused to the point of harassment. If the neighbors only want to inform the community, they can do that effectively. Posters around the town seems like overkill, intended to make his life miserable. Disguised as "informing the public".
If a sex offender is to be considered a danger to a family neighborhood, then the law needs to be changed and the neighborhood should advocate for that to happen. If he is legally allowed to live there, and has given no cause for being evicted, then they have no basis to prompt him to leave.
Likewise, that the law allows a sex offender to live somewhere doesn't mean that his neighbors lose their First Amendment rights to speak about him, and to urge that he be ostracized -- just as in NAACP v. Claiborne Hardware, black patrons' indubitable legal rights to shop at white-owned stores didn't strip other blacks of their First Amendment rights to urge the ostracism of fellow blacks who didn't comply with the boycott.
But where to draw the line between rightful propagation of information to warn the public, and outright harassment. Can the law be written to accurately delimit these two? Some level of vagueness on the written law and a reliance on the judge's perception seems inevitable.
Here though the solution appears to be "the answer to bad speech is more speech." The guy needs to get his actual "offense" out there in the public eye, so that the jerks who are persecuting him appear to be what they are: jerks.
I was told by someone with great passion that Idaho's registered sex offender list of crimes is that broad. But when I researched it, it was theoretically possible for statutory rape to get you in that category, but doesn't seem to happen very often.
Which I believe it does. If they want to inform the neighborhood, one short visit to each home is enough. The posters are unnecessary and clearly intented to harm the invididual. What the people should do is call upon their mayor/governor to declare their area a sex-offender free zone.
If this were an all-white community putting up posters that read "Keep the n****** out", would there be this much question that their actions constituted harassment of the african-american residents? Maybe this case isn't as blatantly bad as my example, but I think there is a line somewhere.
If they had no permission to post, then they committed an intentional tort in the course of their posting signs.
Would not the commission of intentional torts against any party in the course of their acts at least give some credibility to the argument that their intention for posting the signs was not entirely legitimate?
Or for that matter, could they not be charged under a criminal trespass statute (if any exist) for posting signs without permission of the utility company or perhaps the trees' owners?
Another possibility if they had no permission is prosecution for littering. Is there an Officer Obie on the Fon du Lac PD?
I should also say that many utility companies and tree owners won't complain about posting of flyers by neighbors, and may permit this. For instance, if a neighbor posted such a flyer on the tree I own, I wouldn't call the police, or support a prosecution of the neighbor; if need be, I'd try to block the prosecution by retroactively licensing the neighbor to use the tree. Even if I disagreed with the flyer, as I do here, I'd probably just remove it and ask the neighbor not to post it again, rather than trying to get him criminally prosecuted for using my tree.
Unless one thinks all hostile environment harassment law is unconstitutional (which Professor Volokh might), the touchstone of that analysis is "severe or pervasive" harassment, which reflects the common sense notion that an isolated comment shouldn't constitute sexual harassment but talking about sex over and over again in front of nonconsenting female employees would.
If we want to take it out of harassment law, I can see other doctrines where this could be an issue too. For instance, one element of common law defamation is that the character and circumstances of the expression would lead a reasonable person to believe that the speaker was making a factual claim. The number of times that something is said is relevant to this issue-- an offhand comment might be understood as a joke, hyperbole, etc., whereas repeated utterance could evidence the factual nature of the statement.
In broadcasting law with respect to the indecency standard, the number of times something is expressed is relevant as well. (Remember the recent "fleeting utterances" decision of the DC Circuit?) I would think that there would be similar considerations with obscenity-- something that multiple instances of nudity and depictions of sexual conduct is more likely to appeal to the prurient interest and offend community standards.
None of this is to attack Professor Volokh's conclusion that the "criminal harassment" law is vague as they come and probably unconstitutional. But repetition is certainly a legitimate consideration in First Amendment law.
“...which serves no legitimate purpose:” The prosecution has to prove, then, that there is no purpose of the speech which could be served which is legitimate. Or to put it another way, even if a single purpose among many were legitimate -- whether the actor acted to that purpose or not, then the actor would be acquitted. And as to whether even that single purpose was not legitimate, the proof would have to be beyond a reasonable doubt. On its face, that’s a pretty darn hard test for a prosecutor to meet.
And how should legitimacy of purpose judged?
Well, surely the purpose cannot be measured by the speech’s being merely functional for, or in the mind of, the actor (“Even if they intend to try to get Allen to move, that too may be useful for them.”)
Rather, presumably, the legitimacy or lack of legitimacy of the purpose must also be measured in objective terms because if it is not objectively rational, then how could it be “legitimate?”
If as the objective facts are presented here, and if they are completely presented here, then Allen was convicted of an act with a person of some, similar maturity, albeit still a child, of approximately the same age, at the instigation of the partner and with her consent, then is it possible to have a rational fear of – and therefore a legitimate purpose for speech publicly marking Allen and purporting to warn of – a purported threat that his presence posed.
So contrary to what is suggested here the test of the neighbours’ actions is not whether they considered whether or the offence was “minor” but rather whether or not the neighbours could rationally conclude that the fact of having been convicted of the offence and registered on these facts, meant that Allen could be considered a threat that required warning of this nature.
I suggest that the ordinary operation of the law here provides more than sufficient certainty for the appropriate constitutional protection of the actors.
A New Jersey family court judge explicitly told his colleagues publicly to ignore constitutional "rights" when deciding whether there is enough evidence to issue domestic violence restraining orders. (Cathy Young and Professor Stephen Baskerville have links to the judge's comments).
Such attitudes illustrate Justice Brandeis's observation that the biggest dangers to liberty come from overzealous people with good intentions. The Constitution is commonly ignored when a measure supposedly aimed at the problem of domestic violence is proposed.
For example, the portions of the Violence Against Women Act held unconstitutional by the Supreme Court in U.S. v. Morrison (2000) were enacted UNANIMOUSLY by the Senate, and upheld by almost all lower courts.
That was despite the fact that Bruce Fein and Justice Department attorneys pointed out the serious constitutional problems exhibited by the provisions later held unconstitutional.
This week, the New York Times carried an article by a Harvard researcher about how the two dozen state laws that absolutely mandate arrests in response to all plausible allegations of domestic violence, rather than leaving the issue to police officer discretion, increase rather than decrease deaths by domestic violence victims.
Deaths in such states are much higher than in states that lack such draconian laws mandating arrest. Female victims are afraid to report incipient violence for fear that their batterer will be arrested and lose his job (and with it the family income). Male victims are afraid that they will be arrested if they report domestic violence to police. As a result, domestic violence goes unremedied.
But no one is rethinking those draconian mandatory-arrest laws, because overzealous legislators and judges, ignore facts and evidence in favor of ideology, resulting in flawed responses to the serious social problem of domestic violence.
Constitutional problems are all too often simply ignored in the domestic violence context. That harms civil liberties, and in the long run, domestic violence victims as well.
Nick
Fortunately, the registration has become so onerous that it has likely crossed the line from civil to criminal, and it may come crashing down, at least for people whose crimes were committed before Adam Walsh came into effect.
Remember Mr. Allen when you see someone listed as a sex offender with a child victim.
As to the "crime" of the posters, if Wisconsin better defined harassment and eliminated the "legitimate purpose" element, could it pass muster? What if they made "no legitimate purpose" and affirmative defense, not an element?
It's ironic that sometimes a legislature can sometimes make a criminal statute constitutional constitutional by removing protections.
Even if not criminal, the behavior of Linda C. Schultz, who, according to the article EV linked to, lives at 323 N. Macy St. in Fond du Lac, Wisconsin, should be condemned. Michael J. Merkel also lives at that address and was also charged.
Ms. Schultz and Mr. Merkel either didn't care to check the truth or they didn't care that they were tarnishing Mr. Allen for something very few people think should be a crime. Shame on them.
Linda Schultz tried to justify her actions by saying, "My grandchildren live upstairs, and we have a lot of kids in the neighborhood." What do her kids have to fear from this guy?
I hate to break it to Ms. Schultz, but her grandkids are probably more at risk of sexual abuse from her relatives than from the dude down the street who had consensual sex with someone only one year his junior when he was sixteen.
Thanks for the link to the statute. Assuming the law hasn't changed in 10 years, it doesn't look like he had any defense. "Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 16 years is guilty of a Class C felony."
As to his failure to maintain his registry status, that just shows how insane the sex offender statutes have become. A sixteen year old has consensual sex with someome one year his junior, and he ends up in a Kafkaesque system that gives him two felonies and subjects him to years of public humiliation.
How many readers are saying, "There but for the grace of God go I"?
State v. Winter, 204 Wis.2d 113 (Wis. App. 1996).
See also, State v. Watson, 610 N.E.2d 472, 477 (N.C. App. 2005):
Also, Smith v. Martens, 106 P.3d 28 (Kan. 2005):
Of course, whether Wisconsin's law can be applied to the conduct at issue - citizen re-posting of registered sex offender information - is a separate issue.
The argument that protected speech may be banned as a means to ban unprotected speech turns the First Amendment upside down. The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse. Ashcroft v. Free Speech Coalition, 535 U.S. at 254-55 (2002).
Even if speech that "lacks a legitimate purpose" were substantively unprotected, a ban on such speech would still be unconstitutionally vague, in the absence of interpretive guidelines explaining what speech is deemed to lack a legitimate purpose, or other limiting criteria.
Cases like Nitzberg v. Parks and Keyishian v. Board of Regents make that clear.
In Nitzberg, the Fourth Circuit held that a school speech policy that parroted the vague language in the Supreme Court's Tinker decision about what speech can be prohibited in schools was unconstitutionally vague, even though such speech was substantively unprotected by the First Amendment, because the fact that a court uses a legal standard for judging whether a speech restriction is unduly restrictive does not mean that that standard itself is clear enough when it is used as a blanket restriction on speech, rather than to test the validity of clearly-written restrictions on speech.
For example, as Professor Tribe's constitutional law treatise once pointed out, if a state passed a law banning all speech that "is not protected by the First and Fourteenth Amendments," such a ban would be hopelessly vague, and have an enormous chilling effect, even though it would not ban any constitutionally protected speech.
In Keyishian v. Board of Regents, the Supreme Court held unconstitutionally vague a law that it itself had held was not overbroad in the previous decade, showing that a speech restriction can be unduly vague and a trap for the unwary even if it does not restrict constitutionally protected speech by its terms.
The fact that these principles are not applied to stalking and domestic violence restraining order laws is the product of politics, not logic, and the failure to strike down or limit such laws even when they are extremely vague or overbroad is an abdication of courts' constitutional duties.
and some have mentioned the unfairness of the sex offender registries. well, you won't want to miss the Kansas listing of Jorge Garcia Gomez, who was barely 10 years old when he committed the offense of indecent liberties with a child, with a similarly-aged victim.
Now, I commend your zeal in defending the First Amendment (frankly, it's one of the major reasons I enjoy this blog), but I don't see how anyone can say that it is unconstitutional or even inappropriate for any jurisdiction to prohibit speech when it is made with the intent to harass and intimidate and it does in fact harass and intimidate. Or am I missing something? (A possibility which must be acknowledged given the lateness of the hour and my lack of caffeination.)
But the statute quoted does not address speech directly. It addresses general acts, which might include speech. I was suggesting, though not very well, that prosecution under the statute might be framed to rely primarily on non-speech acts, and that some of the sign poster's non-speech acts might diminish if not entirely vitiate claims that they were merely engaging in protected speech.
From TFA cited:The antecedent of their in "their front yard" appears ambiguous. But if it means "Allen's front yard", I just don't see a First Amendment defense to posting any sign in Mr. Allen's own front yard without permission. No matter what the sign said about Mr. Allen, posting it on his property without permission is a crime. I think a pattern of posting signs with Mr. Allen's name on them (even with nothing more), combined with posting one on Mr. Allen's own property would be If there were any purpose but to harass, then why post a sign on Mr. Allen's own property?