The Volokh Conspiracy - The Crime of Severe, Repeated, and Hostile Communication with the Intent to Cause Substantial Emotional Distress?

That's what a proposed federal statute -- the Megan Meier Cyberbullying Prevention Act, HR 6123, introduced two weeks ago by Reps. Linda Sanchez (D-CA) and Kenny Hulshof (R-MO) -- would create:

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 ["including email, instant messaging, blogs, websites, telephones, and text messages"] to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.

Wow. So if I harshly criticize Reps. Sanchez and Hulshof ("hostile") at least twice ("repeated") in a way that a jury finds "severe," whatever that exactly means, and if I do that "with the intent to ... cause substantial emotional distress," I could go to prison for up to two years. My criticism could be perfectly accurate. It could be an expression of my opinion, including on political, social, or religious issues. The desire to cause substantial emotional distress could be prompted by the target's reprehensible actions or political views, and could be coupled with a genuine attempt to persuade the public. Doesn't matter: My actions would be a crime.

This is clearly unconstitutional. In Hustler v. Falwell, the Supreme Court held that even civil liability for "outrageous" (not just "severe") behavior that recklessly, knowingly, or purposefully causes "severe emotional distress" (not just "substantial emotional distress") violates the First Amendment when it's about a public figure and on a matter of public concern. Many, though not all, lower courts have held the same whenever the statement is on a matter of public concern, even about a private figure.

I would go further and reject the emotional distress tort altogether whenever it's premised on the content of speech that falls outside an existing exception, i.e., speech that isn't threatening, factually false, or the like. But in any case even the specific holding in Hustler is enough to make the statute facially overbroad. (Given the Hustler reasoning, the requirement that the speech be electronic, repeated, or intended to cause substantial distress doesn't adequately narrow the law: "[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....")

Existing telephone harassment laws have their problems in some cases, but at least they limit themselves to one-to-one speech to the person who is being "harassed," and don't interfere with the speaker's ability to communicate with willing listeners in the public at large. This law has no such limitation. Its reference to blogs and websites strongly suggests that it deliberately addresses one-to-many publishing media as well as one-to-one email and text messaging -- but even without that reference, it would literally cover any "communication," with no limitation that the communication be sent specifically to the distressed person. Appalling.

	[Eugene Volokh, June 5, 2008 at 3:41pm] Trackbacks The Crime of Severe, Repeated, and Hostile Communication with the Intent to Cause Substantial Emotional Distress? That's what a proposed federal statute -- the Megan Meier Cyberbullying Prevention Act, HR 6123, introduced two weeks ago by Reps. Linda Sanchez (D-CA) and Kenny Hulshof (R-MO) -- would create: 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 ["including email, instant messaging, blogs, websites, telephones, and text messages"] to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both. Wow. So if I harshly criticize Reps. Sanchez and Hulshof ("hostile") at least twice ("repeated") in a way that a jury finds "severe," whatever that exactly means, and if I do that "with the intent to ... cause substantial emotional distress," I could go to prison for up to two years. My criticism could be perfectly accurate. It could be an expression of my opinion, including on political, social, or religious issues. The desire to cause substantial emotional distress could be prompted by the target's reprehensible actions or political views, and could be coupled with a genuine attempt to persuade the public. Doesn't matter: My actions would be a crime. This is clearly unconstitutional. In Hustler v. Falwell, the Supreme Court held that even civil liability for "outrageous" (not just "severe") behavior that recklessly, knowingly, or purposefully causes "severe emotional distress" (not just "substantial emotional distress") violates the First Amendment when it's about a public figure and on a matter of public concern. Many, though not all, lower courts have held the same whenever the statement is on a matter of public concern, even about a private figure. I would go further and reject the emotional distress tort altogether whenever it's premised on the content of speech that falls outside an existing exception, i.e., speech that isn't threatening, factually false, or the like. But in any case even the specific holding in Hustler is enough to make the statute facially overbroad. (Given the Hustler reasoning, the requirement that the speech be electronic, repeated, or intended to cause substantial distress doesn't adequately narrow the law: "[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....") Existing telephone harassment laws have their problems in some cases, but at least they limit themselves to one-to-one speech to the person who is being "harassed," and don't interfere with the speaker's ability to communicate with willing listeners in the public at large. This law has no such limitation. Its reference to blogs and websites strongly suggests that it deliberately addresses one-to-many publishing media as well as one-to-one email and text messaging -- but even without that reference, it would literally cover any "communication," with no limitation that the communication be sent specifically to the distressed person. Appalling.