I just got the text of an interesting and nearly unreported-on decision from an Ohio trial court. Michael Coon wrote three e-mails to Amjad Hussain, a Muslim columnist for the Toledo Blade, who was apparently born in Pakistan. (Hussain is a heart surgeon at the University of Toledo, where he has worked for over 30 years.) The e-mails were insulting, ranting, and vitriolically hostile to Muslims and, at times, Middle Easterners. But as I read them, they did not contain any overt threats to Hussein. Nor did the prosecution's brief point to any specific supposed threats, though it often spoke of Coon's "motive to harass, abuse, and threaten Dr. Hussain."
Nonetheless, Coon was prosecuted for telecommunications harassment, aggravated by its being ethnic intimidation. The prosecution seems to have at first argued that Coon violated 2917.21(A)(5) by communicating with Hussain after Hussain had told him to stop e-mailing him; but that line of reasoning was apparently dropped, seemingly because Hussain had never made such a demand personally (though apparently the Sheriff's Office did make such a demand, perhaps at Hussain's behest). The prosecution instead focused on 2917.21(B), which bars communicating with a person (via e-mail, phone, and the like) "with purpose to abuse, threaten, or harass another person."
The judge rejected this theory, on the grounds that "although angry and intolerant, read in context, the intent established is one of political discourse," and the speech was thus "protected political speech." I think the courts should go further, and conclude that otherwise protected speech — i.e., speech that doesn't fit within an exception such as that for true threats, or for fighting words — can't be punished even if a judge or jury finds that the speaker had the "purpose to abuse ... or harass." (Note that this speech can't be fighting words because it wasn't face-to-face, and was thus extremely unlikely to lead to an immediate fight between the target and the speaker. The fighting words exception is generally limited to such speech, because the justification of the exception is preventing such fights.) But at least the judge reached the right result, and perhaps this was the best the judge could do given the posture of the case.
I should add that I think a statute that generally lets people demand that others stop e-mailing them (perhaps with some exception for situations where the e-mail is necessary for some sorts of business or government service purposes), and punishes those who continue e-mailing after the demand is received, would indeed be constitutional. It would be much like the statute upheld as to traditional mail in Rowan v. U.S. Post Office Dep't (1970). And it would be justifiable because it would leave the writer free to correspond all he wants with willing or potentially willing readers, and only block communications to people who have clearly expressed their lack of interest in the writer's messages. It would also avoid (if properly drafted) courts deciding whether the speaker's intent was really "to abuse ... or harass" (both vague terms rife with the possibility of viewpoint discrimination in application) or to engage in "political discourse."
But the state's theory in this case was indeed focused on the statute barring abusive/harassing messages, and I'm glad that the court rejected that theory. I should add, by the way, that in my view the defense memorandum in this case struck me as much better written and argued than the prosecution memorandum (though I recognize that the prosecutor might not have had a lot of time to invest in his memorandum).
Kindly expand upon this. You believe that harassing, yet non-fighting-words speech, shouldn't be prosecuted, but any speech (via email) should be prosecuted if the recipient demands "stop!" and is too stupid to know how to filter?
I'm rather confused by the distinction. Leaving aside spammers, who should be prosecuted simply because the trains have to run on time and everyone hates them, is it because you view an email address as the electronic equivalent of private property, a virtual yard?
That's the only meaningful distinction I can see.
I should have mentioned, by the way, that I discuss the Rowan analogy in somewhat more detail here; I'll change the post to link to that.
Your argument against punishing this kind of speech seems that it would be impossible to target such speech without involving some degree of government intervention in order to decide what speech is to be prohibited. Thus, a request to stop sending messages, as a precondition to punishment, creates a simply-administered, bright-line rule that you find preferable to inviting judicial mucking about.
But such a rule, which distinguishes cases where no reasonable sender would suppose their messages to be desired and where no reasonable receiver would willingly consent to receiving those messages ex ante, strikes me as highly arbitrary and not justified by the degree to which it protects "core" First Amendment speech. You make the abuse/harass standard out to look like it would involve some extraordinary degree of judicial discretion, but I don't see how the question would be any different than determining whether a threat was "true" or whether a figure or issue is of "public concern," which courses through First Amendment limitations on defamation, to point to a few other First Amendment standards. The abuse/harass standard is also less content-based or viewpoint-based than either of those standards, in that it's a standard that turns on intent and effect, rather than something necessarily in the speech itself (though the speech may be a primary source of evidence as to intent, or, potentially, the reasonableness of the claimed harm).
The judge's decision to characterize this speech as "political discourse" should, I think, tip us off that something is going wrong here. (And I'll here note that I'm unable to discern how to view anything from your links to the case but the first page, so I'm working mostly on your descriptions.) Would the judge so easily have found an "intent" to engage in "political discourse" had the target not been a Muslim, but rather a white Christian? In other words, would the judge's standard tend to cast into the "public discourse" category almost any harassing speech targeted at politically-conspicuous minorities, such as gays, Hispanics, Muslims, and even blacks, when the speech tends to invoke their political conspicuity? Why should the First Amendment—beyond just protecting such speech—provide special protection for such speech?
Why bother with a statute when the glaringly obvious is right in front of us?
Any email program has something to the effect of:
Preferences > Rules > [offensive emailer's address] Move to Trash and Mark as Read
Permanent disregard = problem solved.
As this case could have been from the outset, without resorting to the courts.
duh.
sorry, but merely annoying or insulting speech should not EVER be a criminal/police matter. less govt. less intrusion, and a little personal responsibility. if you can't take some insulting words, you got bigger problems. we don't need big brother rolling out the stops to protect you.
and i also agree, that unless speech is "true threats" etc. then AT LEAST a notice by the recipient must be made to the sender to STOP SENDING THE EMAILS. iow, making it known to the sender that their emails are unwanted.
regardless, despite what Simon says (lol), I believe living in a country with the 1st amendment means that every citizen is necessarily expected to understand/accept/deal with the fact that they are going to have to deal with mean, insulting and/or racist speech WITHOUT help from the govt.
and as i've mentioned umpteen times... before making it a criminal matter, in cases where the "harassment" is extensive, etc. and other methods (blocking etc.) have failed - the person should apply for an anti-harassment order. once that order is served, ANY contact wiht the petitioner is a crime. simple. no content distinctions need be made. it's a crime. period. but that's a resort that is way too extreme imo for merely annoying and insulting emails.
I think your analysis is spot on. Regarding the "you must cease emailing" point and whether it would be valid to prosecute someone who disregarded such a request, I would point out there is a federal statute, the Fair Debt Collections Practices Act, which essentially requires a bill collector to stop calling the debtor if the debtor so requests and states he or she has an attorney and that the collector should call the attorney. If the collector disregards this request, he or she may be held civilly liable for statutory damages.
I'm not sure the ability to prohibit speech directed to you should extend to politicians nor to columnists (or others) who are in and continue to be in the "marketplace of ideas." Once you step into the ring, so to speak, you consent to accept the blows that follow. In the specific context of e-mail, the delete key seems to provide a pretty big shield if you choose to use it.
The distinction is much the same as for some telephone services -- receiving the unwanted message, even just to examine it and toss it away, costs the recipient money.
Unless you have complete control over your SMTP server so that you can block various IPs or sender addresses before they transmit their message, you have paid a cost to receive the message. Receiving and filtering email costs bandwidth and CPU time. It costs you through your ISP's billing rates, your power bill to run your computer long enough to filter the email, and even the wear and tear on your computer.
It is true that the cost is small, or even miniscule, but it is a cost that you would not have to pay but for the unwanted communication.
That is also a reason why spammers should be prosecuted. They cost all recipients who receive their email and discard it.
Laws are to protect everyone equally, not just the minority of people who know how to setup a spam filter. Yes, you know how to set one up, and all your friends do too. But you are intelligent enough to know about the idea of selection bias.
And none of you "spam filters solve it all!" people have shown even a glimmer of concern about what to do if the harasser simply evades the block by opening a hotmail account, for example.
You are improperly putting the burden on the harassee to prevent the unwanted communications. No matter how easy it might be under ideal circumstances to do so, that's the wrong way to approach it. What if the person who's receiving the unwanted email wants to use a webmail program that doesn't have blocking features?
Under your rules, such a choice apparently falls into the "she was wearing a short skirt, she was asking for it" legal theory.
I completely agree. See my unpopular posts on the Lori Drew thread.....
Almost exactly where I said the line should have been drawn there. Aside from fighting words, fraud, true threats, etc, there needs to be a tangible and unambiguous attempt by the victim to avoid harassment before it can be criminalized (largely because there you get into a conflict of speech vs. privacy, and no version of free speech translates into an obligation of others to listen to you).
Now to some of the posters.
Ryan Waxx wrote:
One thing to remember about a the vast majority of the spam these days is that there are other areas where spammers could be prosecuted outside of the speech/content areas. For example the use of viruses and other malware to allow spam relaying would be criminal in the same way that breaking into your neighbors house to set up a radio broadcasting station in his attic would be.... These are prosecuted on grounds such as these.
One thing to be said about spam filters is that the technology has largely made it necessary for most spammers to engage in illegal activity to try to circumvent the filters.
Consider the spam that runs counter to the Prescription Drug Act, for example.
Simon P wrote:
I think this is a fair criticism of the post as a whole. However, I would still defend the idea that this should be protected until the victim takes reasonable steps to tryo to end the harassment for a couple of reasons:
1) Intent to harass is not going to be a judicial decision any more than wilful infringement would be in a copyright case (which affects statutory damages). It will be a matter of fact, not law, and end up being in the hands of the jury aside from summary judgement. In summary judgement proceedings (and similar types of proceedings), the judge could potentially rule on such a matter if reasonable no reasonable juror could find such an intent. Handing such decisions over to a jury, where criminal proceedings may depend solely on intent seems to be a big mistake because it adds a large and unpredictable element to these cases. This could easily have a chilling effect on free speech.
I support robust protections for free speech of the sort discussed and ruled on in Brandenburg v. Ohio. I think that anything less becomes both a slippery slope and something which is impossible to enforce fairly across the board. I have argued elsewhere that hate-speech restrictions in Denmark were directly responsible for the Jylands-Posten cartoon controversy spilling over into riots in the Middle East...
Your right to freedom of speech on a public sidewalk doesn't give you the right to keep yelling in my ear after I've asked you to shut up.
The reason your freedom of speech is no threat to me is that I don't have to listen to you if I don't want to. Your freedom to speak ends at my ears. If I'm not in a public square, you have no right to direct your words at me if I don't want to hear them, and even if I am, you have no right to try to force me to hear them if I don't want you and you aren't thereby prevents from talking to anyone who does want to listen.