Ban on Behavior that “Emotionally Abuse[s]” or “Is Likely to Create an … Offensive Environment” and “Which Serves No Legitimate Purpose” + Liability for Parents Who “Allow[]” Such Speech

That’s what a new ordinance from Monona, Wisconsin provides (as posted on the amusingly named

(a) … Bullying is a form of harassment and is defined as an intentional course of conduct which is reasonably likely to intimidate, emotionally abuse, slander, threaten or intimidate another person and which serves no legitimate purpose.

“Course of conduct” is defined as a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.

“Harassment” is defined as [any intentional course of conduct] whether verbal, physical, written, or by means of any mode of communication … which is likely to create an intimidating, hostile or offensive environment, and which serves no legitimate purpose….

(b) … It shall be unlawful for any person to engage in any bullying or harassment of a person or induce another person to engage in such bullying or harassment.

(c) … No person shall retaliate against any person who reports any conduct which is prohibited by this section.

(d) … This section shall not be construed to apply to any constitutionally protected activity or speech.

(e) … It shall be unlawful for any custodial parent or guardian of any unemancipated person under eighteen (18) years of age to allow or permit such person to violate the provisions of subsection (b) above. The fact that prior to the present offense a parent, guardian or custodian was informed in writing by a law enforcement officer of a separate violation of subsection (b) by the same minor occurring within ninety (90) days prior to the present offense shall constitute a rebuttable presumption that such parent, guardian or custodian allowed or permitted the present violation.

The penalty is a fine of $50 to $1000 (plus “the costs of prosecution”) for a first offense, and $100 to $2000 (plus the costs of prosecution) for subsequent offenses. But though the penalties are just fines, this is indeed a criminal ordinance (the Code of Ordinances speaks of “conviction” for violations of such ordinances).

And it seems to me to be far too vague and broad to be a sound statute. Just what does it mean to “emotionally abuse” someone, especially without reference to any particular relationship in which such terms could have some professional meaning? What does it mean to create a “hostile[] or offensive environment” — not limited to workplaces or educational institutions, but in any aspect of life? What counts as a “legitimate purpose”? And how are laypeople trying to understand the law to determine what is “constitutionally protected activity or speech,” given the hot debates on, for instance, whether and when speech that reveals private facts about someone is constitutionally protected, or whether the display of pictures of aborted fetuses where children might see them is constitutionally protected?

If there are specific forms of “emotionally abus[ive]” or “offensive environment”-creating behavior that the government thinks are harmful enough that they should be criminalized, we can have a reasoned and informed debate about whether such behavior should be prohibited. But simply using these vague terms, and leaving it to city prosecutors and judges to decide what’s “legitimate,” “abus[ive],” “hostile,” or “offensive,” strikes me as not the way that our legal system should function.

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