It’s Now a Crime in Louisiana to Electronically Communicate With “Intent to … Abuse [or] Torment” a Minor

A newly enacted statute, Rev. Stat. 14:40.7 provides, in relevant part:

A. Cyberbullying is the transmission of any electronic textual, visual, written, or oral communication with the malicious and willful intent to coerce, abuse, torment, or intimidate a person under the age of eighteen.

B… (2) “Electronic textual, visual, written, or oral communication” means any communication of any kind made through the use of a computer online service, Internet service, or any other means of electronic communication, including but not limited to a local bulletin board service, Internet chat room, electronic mail, or online messaging service….

F. The provisions of this Section shall not be construed to prohibit or restrict religious free speech pursuant to Article I, Section 18 of the Constitution of Louisiana.

The penalty is up to 6 months’ in jail (or an up to $500 fine or both), except that under-17-year-old offenders are routed to the juvenile justice system.

This is not bad as the earlier version, which also applied to speech intended to “embarrass, or cause emotional distress.” But it’s still pretty bad, especially because it leaves unclear what exactly is a “malicious and willful intent to … abuse [or] torment.”

Would publishing an online editorial — or a blog post — condemning an underage criminal for his crimes qualify as “malicious and willful intent to … abuse [or] torment”? Or would it not be “malicious” because it would be justified by righteous indignation (in which case I take it courts would have to decide what indignation is righteous and what is not)? Note that the law isn’t limited to messages sent only to the target, but includes speech published to the world at large as well.

Would sending a message castigating an ex-lover for cheating (assuming both the ex-lover and the sender are 17) qualify as “malicious and willful intent to … abuse [or] torment”? What if the message “speak[s] insultingly, harshly, and unjustly” (unjustly, that is, in the view of the judge), which is the dictionary definition of “abuse” that seems most relevant to speech?

So either the law is too broad, or it will be narrowed only by reading “malicious” as limited to speech that courts dislike — which raises the risk of impermissible content and viewpoint discrimination. And until the narrowing takes place (and maybe even after that), the law will be remarkably vague.

The exception for religious speech is also probably unconstitutional, because it treats nonreligious speech worse than religious speech. Cf. R.A.V. v. City of St. Paul (holding that content-based distinctions are presumptively unconstitutional even when they operate within an unprotected category of speech).

UPDATE: Some commenters suggested that “malicious” is sufficiently well-defined because it arises often in legal contexts.

But the trouble is that means different things in different contexts. In the law of homicide, for instance, the “malice aforethought” that distinguishes murder from manslaughter is a term of art that means (more or less) extreme recklessness, knowledge, or purpose that the result will be brought about, plus absence of certain kinds of immediate provocation. This would indeed cover the examples I gave, since there it may be very likely that the speaker does indeed want to make the listener feel “abused” or “tormented” (if that’s what’s required), and that there was no immediately preceding provocation.

In the constitutional law of libel, “actual malice” means simply reckless or knowledge about the falsehood of the statement, pretty clearly not what’s intended here. In tort law, “malice” sometimes does mean, mor or less, “ill will” towards the target — but that too might be satisfied in the examples I gave: Someone writing an online article excoriating a young criminal may well feel ill will towards the criminal, and might well want the criminal to feel ashamed and “tormented” by guilt or by a sense of public condemnation. And sometimes “malice” means something else, such as “reckless disregard of the law or of a person’s legal rights,” which in this context is circular.

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