Would New Jersey Bill Criminalize the Speech in Hustler v. Falwell?

I’m sure the legislatures aren’t thinking of the bill this way, but it might well be what this bill — which cleared one New Jersey Senate committee by a 5-0 vote this summer, and which unanimously passed another committee today — would do. The bill provides, in relevant part,

1. a. A person commits the crime of cyber-harassment if, while making a communication in an online capacity via any electronic device or through a social networking site and with the purpose to harass another, the person …

(2) sends, posts, comments, requests, suggests, or proposes any lewd, indecent, or obscene material to or about a person ….

If Larry Flynt had posted his nasty attack on Jerry Falwell online in New Jersey — assuming the Internet and this law were around back then — he would likely have been committing a crime. He might have had “the purpose to harass” Jerry Falwell, whatever that precisely means. The scurrilous parody said “about” Falwell, which talked about Falwell supposedly having sex with his mother, may well have been “indecent,” again whatever that precisely means.

Seems pretty certainly unconstitutional to me. For an example of a similar Washington law being used to try to uncover the identity of someone who published a YouTube cartoon satire of City of Renton police officers — an attempt that was premised on the theory that such publication was indeed criminal harassment, because of its supposedly lewd, indecent, or obscene references to sexual goings-on among the officers. (The matter was ultimately dropped after a public outcry.)

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