The Volokh Conspiracy - Rep. Linda Sanchez Defends Proposed Outlawing of Using Blogs, the Web, Etc. To Cause Substantial Emotional Distress Through "Severe, Repeated, and Hostile" Speech:

Last week, I cricitized 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 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, 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.

(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.

(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.

Related Posts (on one page):

"Reasonable Regulation of Speech":
Rep. Linda Sanchez Defends Proposed Outlawing of Using Blogs, the Web, Etc. To Cause Substantial Emotional Distress Through "Severe, Repeated, and Hostile" Speech:
Federal Felony To Use Blogs, the Web, Etc. To Cause Substantial Emotional Distress Through "Severe, Repeated, and Hostile" Speech?

(link)

Glen Alexander (mail):

Is this such an egregious example of bad lawmaking as to fully rationalize the need for an activist judiciary?

And why should the differentiation between "acceptable" and "prohibited" forms of hostile speech be left to a judge and a jury? Gee, if that makes sense, then why not just make everything illegal, and let the police and prosecutors decide whom to indict, whom to offer pleas, and whom to take to trial? Then we could dispense with all these arguments about the appropriate exercise of state police power and there wouldn't be any need for individual rights.

We could all trust our elected, appointed and hired government officials to decide what's best for each of us and society, and spend our time quietly and diligently performing our assigned work.

Isn't it Friday yet?

5.7.2009 8:24pm

einhverfr (mail) (www):

I think this proposed bill is facially unconstitutional for the reasons you say. I think it is possible to craft a bill that could pass Constitutional muster, for example, by requiring that communications are personalized and persist after substantive effort (beyond a mere request to stop) is made to end the harassment, etc. (I think courts would also decline to enforce such a law where the communication had another legitimate purpose.)

I also think the bill raises important 4th Amendment (vagueness) issues as well.

5.7.2009 8:27pm

rosetta's stones:

...first, they came for the bloggers...
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This isn't going anywhere. But, it requires attention of course, and thank you for taking the time to dissect her response. It is important, and this is where you lawyers earn your pay.

Hopefully, Rep. Sanchez can be directed to more effective means of engaging in her crusade against cyberbullying: technology, good parenting, etc.

5.7.2009 8:33pm

Jacob Berlove:

"The Megan Meier Cyberbullying Prevention Act would criminalize bullying like this when perpetrators hide behind the emboldening anonymity of the web."

Is it just me, or should we require a say, 3 1/2 year cooling period before allowing legislators to sponsor and legislatures to enact freedom restricting laws of broad scope because when the impetus is some sad case that allows the lawmakers to score political points on?

5.7.2009 8:37pm

disgruntled:

This bill would also criminalize legitimate debt-collection methods (namely, shaming). For example, if a creditor creates a web page featuring a delinquent debtor, including "hostile" language about the debtor's situation, and repeatedly emails a link to the debtor's friends, that would be criminal behavior (unless, of course, this isn't "severe," the vagueness of which you already mentioned). Aside from whether this would be a smart business practice, this is protected behavior that shouldn't be criminalized.

5.7.2009 8:42pm

cognitis:

Blogger abstracts argument from this nascent bill's primary matters with impertinent examples. The bill describes the criminal pursuant:

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...[italics inserted]

From this description, Blogger imagines assaults against journalists of all sorts. American Heritage Dictionary (AHD) describes another sort of criminal pursuant:

To follow or observe (a person) persistently, especially out of obsession or derangement.

The criminal described by AHD is not a journalist but a stalker; AHD also implies such persistent or repeated observation of a person to be pathological or "deranged", such as a persistent desire to harass a person. While this nascent bill--as most bills--requires other legislators' disputation for perfection, lauds to Sanchez for this bill's future salutary and civilizing effect on the diseased and the barbarous.

5.7.2009 9:20pm

Disgruntled wrote:

I don't think in my state that would be legal anyway.

But anyway, debt collectors calling during dinner and being rude day after day would be criminalized only if they were in another state, which would be the case in a number of cases. And given that the few debt collection agencies I have ever been contacted by have been reasonably courteous, I think it would be actionable under a broad reading of this proposed bill.

5.8.2009 12:11am

neoconwithademocratface (mail) (www):

EXPOSED! Lets take a closer look at H.R. 1966, the anti free speech, anti 1st Amendment bill proposed by Linda Sanchez (D-CA)

5/6/2009: First lets look at the sponsors of this bill; and see just who got them elected! Click the names to see what "agenda's" they answer to; makes for interesting reading!

Political donors to Linda Sanchez D-CA: Top 100 donors: https://www.opensecrets.org/

Busted! Linda Sanchez took $8,000 from Fox News (News Corp), a 'right wing, conservative outlet! Y'know, a liberal democrat taking money from the 'O'Reilly Factor' and 'Hannity' network! Interestingly, she also took $7,500 from DirecTV which, oddly enough, is 35% owned by News Corp. Sneaky way to make political contributions, eh? If the 2 contributions are combined, they equal her #1 source of political contributors! Explains why they used two separate entities to buy her to propose this bill. There is clearly an anti-competition angle here that STINKS. This clouds any 'concern for internet safety' spin the sponsors may put on the bill!

Political corruption exposed; good to know who's willing to sell out the 1st Amendment for 15 grand. The sad part is, these politicians may not even be aware what they are doing is treasonous against the Constitution! The culture of Washington D.C. is so corrupted, its like second nature to them. Judas Iscariot betrayed Jesus Christ for 30 pieces of silver; tell me... what's the difference?

Cosponsors [as of 2009-04-18] of H.R. 1966, and their top 100 political contributors (ured.com for links)

Rep. Mark Kirk [R-IL]
Rep. Timothy Bishop [D-NY]
Rep. Raul Grijalva [D-AZ]
Rep. Bruce Braley [D-IA]
Rep. Lucille Roybal-Allard [D-CA]
Rep. Joe Courtney [D-CT]
Rep. John Yarmuth [D-KY]
Rep. Phil Hare [D-IL]
Rep. Marcy Kaptur [D-OH]
Rep. William Clay [D-MO]
Rep. Danny Davis [D-IL]
Rep. John Sarbanes [D-MD]
Rep. Brian Higgins [D-NY]
Rep. Lois Capps [D-CA]

When you turn on the kitchen light, the cockroaches scatter. 'Neo Conservatives' masked as 'Labor Union Democrats'; Oh my! This deceptive ploy only makes transparent the corruption that is rampant in our political system. We've seen it before: A "representative of the people" like Linda Sanchez (D-CA) used as a cover for a fear mongering, corporate expansionist, civil rights assault that pushes a neo-conservative agenda.

Linda Sanchez (D-CA) and others have introduced H.R. 1966, an anti free speech bill that threatens the smaller voices, and benefits the larger mainstream media. Alternative media exists without an mandated, dictated agenda. Why hurt the "little guy?" (more info on the bill here)?

Major political contributors to Linda Sanchez include big business mainstream media interests; such as News Corp, Directv, and the National Cable and Telecommunications Association. Newscorp is a major international media company that owns television networks such as Fox news, a conservative news outlet (hypocrite?)! They also operate major newspaper outlets, and have a great interest in seeing the smaller blogs die. These small blogs and social media outlets are grasping market share as the demand for real, independent non agenda news grows. The small blogs and media outlets are also a means for unsponsored independents (i.e. the "little guy") to get internet traffic. She is suppressing not only free speech with this bill, but free enterprise.

Corporate monopolism through a labor democrat is hypocrisy at its WORST; this must be opposed because it is deception of the voting constituency. Call your representative now to vote DOWN this bill.

Just more serving the interests of monopolizing corporations that seek to preserve their domination over the free internet, and snuff out the smaller voices. Disappointing, in that we had believed Linda Sanchez (D-CA) was an ally of the people, with her holding steadfast and not voting for the bailout. That is most likely the reason she is named as the author of this ridiculous bill. Think about it. How can we even trust any of these people anymore, when all they do is attempt to deceive us?

We are not fooled. I would prefer that no further bills be submitted by ANYONE in congress, so this cauldron of sellouts can't do any more damage to our liberties!

Why stifle working class Americans who run small blogs with this attack on the first Amendment? Speculation would suggest the bill is being pushed behind closed doors by News Corp and the National Cable and Telecommunications Association. How does this bill benefit the working class people, who have to fight for their rights under the constitution; rights being attacked daily by major corporations? The answer is clear, the betrayal is evident. We see FIRST HAND that once again, elected representatives are prioritizing big money political contributions over the voting majority.

Our rights under the Constitution are all we have, folks. It's the only defense the people have against big business and mainstream media dictatorships. This is a bad bill all around, that will weaken the smaller voices, and benefit mainstream media. Over-generalizations that can result from bills like this mean rights suppressions for those who don't have the resources to defend themselves. Who exactly is going to define the abstract boundaries of this bill? How will enforcement be carried out against free speech?

Protect our right to free speech, and fight government intervention into your rights! Read between the lines. We simply cannot trust the political process when politicians serve the interests of major political contributors.

geokstr (mail):

Not very far from proposals to ban "offensive" speech is it? Said offense to be totally defined by the "victim". Toss in the burgeoning extrajudicial state Kangaroo Commissions staffed with leftwing political hacks and no due process protections.

Now we just need a few new members of SCOTUS who can "empathize" properly with the various "offendable" victim groups. Coming right up.

Slip sliding away...

I wonder if any of the Germans in the thirties understood what was happening to them until it was too late. I wonder if it'll be illegal to say "I told you so" someday.

5.8.2009 12:14am

I can't wait to read the tortured rationalizations of this by certain commenters here. Or how they dismiss the pattern developing to stifle the speech of the opposition as paranoid delusions of the right.

Hey, you won, so I guess you get to do what you want, eh? After all, the huge massive supermajority of the voters knew this was coming and this is the real reason they voted for the Dems, right?

5.8.2009 12:25am

Geokstr:

Meh.... Whoever is in power wants to restrict freedom. Right, left, whoever..... Power corrupts.

5.8.2009 1:11am

J. Aldridge:

She is as clueless as a 8-month old child over what interstate or foreign commerce actually means.

5.8.2009 1:27am

Jonathan F.:

I'm not sure how much attention we should bother paying to an official who refers to "so-called free speech."

Wait -- on second thought, we should pay a lot of attention.

5.8.2009 1:48am

Dan M.:

It's not surprising that Fox News would want something like this. Bill O'Reilly is their big star and he HATES the internet. He's so upset that people can just go on the internet and anonymously say bad thing about him. He probably put up the money himself to encourage the writing of this bill. He is looking out for all of us, after all, and we're not safe as long as people can write nasty things about us on the internet.

5.8.2009 3:26am

einhverfr:
Meh.... Whoever is in power wants to restrict freedom. Right, left, whoever..... Power corrupts.

More phony moral equivalence.

The right tries to limit your freedom of speech to say f*ck in mass entertainment media, or to speak freely by flopping your genitalia on stage, or to burn a flag - the ACLU goes nuts and the salaried "community organizers" stage massive and sometimes violent protests. The left wants to put limits on free speech as a bludgeon to prevent their opposition from speaking at all as a means of gaining and maintaining power, and we're supposed to just shut up about it.

That is their point, I guess.

The left already controls all the speech codes on campuses, including all the "spontaneous" demonstrations against anything remotely conservative. They control much of what gets heard in the classroom. The drivel that emanates from Hollywood is mostly leftist propaganda. They already have the mass media in their hip pocket except for Fox, the internet and talk radio, which remain the only effective means the right has to get any information out that isn't the official party line.

The attacks on the internet and talk radio by the Dems will be relentless. We heard over and over again from the left that there was no way that the "Fairness Doctrine" would even be considered once they got in power.

Liars. No wonder the left has no particular problem with taqiyyah.

Yet the man appointed by Obama to lead the so-called "Diversity Committee" is a long-time champion of the Fairness Doctrine and he has packed the committee with every conceivable approved victim group. I'm surprised Al Jazeera's not on it (yet).
FCC Names Diversity Committee, Sets Meeting

Orwell was right.

5.8.2009 8:57am

Dan M.:
It's not surprising that Fox News would want something like this.

Sometimes I just can't believe the brazen distortion and twisted reasoning that the left uses to "prove" that it's all the fault of the right. Please give a cite that shows how Fox News is in favor of this, and not just a "quote-mine" from O'Reilly either.

If I was to cite the left's hero, Keith Olbermann, for the lunatic things he says every night, it'd be a full time job, and I wouldn't even have to rip anything out of context either.

5.8.2009 9:05am

Geokstr:

The right tries to limit your freedom of speech to say f*ck in mass entertainment media, or to speak freely by flopping your genitalia on stage, or to burn a flag - the ACLU goes nuts and the salaried "community organizers" stage massive and sometimes violent protests.

But it was the Bush Administration's Dept. of Justice which tried to argue in court that merely linking to a Hamas site (a pure speech activity) was both unprotected by the First Amendment and also criminalized under the Clinton-Era ATEDPA.

Really, I don't see much difference between the parties on this.

5.8.2009 12:36pm

(The civil rights records of Bush and Clinton were reasonably equivalent and Obama is shaping up to be another one exactly in that line....)

5.8.2009 12:37pm

Sometimes I just can't believe the brazen distortion and twisted reasoning that the left uses to "prove" that it's all the fault of the right. Please give a cite that shows how Fox News is in favor of this, and not just a "quote-mine" from O'Reilly either.

I'm not "the left." I watch a good bit of Fox News but O'Reilly annoys the hell out of me and he's their biggest star. From before I stopped watching his show I recall several instances where he'd whine about how people can say whatever they want on the internet, that he didn't think it was right that they should be able to do so or that they should be able to do so anonymously. He bitches about everything.

I'm a conservative, but I don't really trust Rupert Murdoch's or Bill O'Reilly's commitment to free speech. There are plenty of lefty morons who wants bills like this, but Bill O'Reilly is exactly the type of person on "the right" who would love to see a bill like this pass so that he could have people like Al Franken thrown in jail. He's very sensitive to criticism.

5.8.2009 2:00pm

Dan M:

My apologies for accusing you of being on the left. I've never seen a person on the right before criticize Fox as being anti-free speech.

I've seen O'Reilly two or three times and couldn't stand him, so we agree on that. And he did manage to kiss Obama's ring in that interview with him prior to the election.

However, given that they're the only TV outlet that is even halfway unbiased, if you're right that Fox is just as much in favor of supression of free speech as the rest of the mass media, the Obama administration, the Democratic party, the university professoriat, the teaching profession, and Hollywood, then we might as well just give up now and march ourselves off to the camps.

I think that even though Fox has the occasional megalomaniac who want might want to side with the left on this for his own personal benefit, we still have to consider them a relative beacon of objectivity. No reason for the perfect to be the enemy of the reasonably good here.

5.8.2009 5:47pm

Yeah, I'm not really commenting on the programming of Fox News, which is generally very good, but rather O'Reilly's thin skin and Murdoch's desire to protect his biggest star.

5.8.2009 6:28pm

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