People are troubled by a just-enacted statute that extends part of telephone harassment law to the Internet. I think they’re right to be troubled by it, and here’s why.
First, the statute, with deletions marked by strikeouts and insertions marked by underlines:
47 U.S.C. § 223(a)(1)(C): Whoever … in interstate or foreign communications … makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications….
(h)(1) The use of the term “telecommunications device” in this section —
(A) shall not impose new obligations on broadcasting station licensees and cable operators covered by obscenity and indecency provisions elsewhere in this chapter;and
(B) does not include an interactive computer service [= any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions].; and
(C) in the case of subparagraph (C) of subsection (a)(1), includes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet ….
What does this practically mean?
1. This potentially criminalizes any anonymous speech on a Web site that’s intended to annoy at least some readers, even if it’s also intended to inform other readers. This is true whether the poster is berating a government official, a religious figure, a company that he thinks provides bad service, an academic who he thinks is doing or saying something misguided, a sports figure who he thinks is misbehaving, or what have you; so long as he’s trying to annoy any recipient (whether the target, if the poster thinks the target is reading the blog, or the target’s partisans or fans).
2. How is this different from traditional telephone harassment law? The trouble is that the change extends traditional telephone harassment law from a basically one-to-one medium (phone calls) to include a one-to-many medium (Web sites).
This is a big change. One-to-one speech that’s intended to annoy the one recipient is rarely of very much First Amendment value; people are just rarely persuaded or enlightened by speech that’s intended to annoy them. It has some value (see item 3 below), but to the extent that it’s in some measure deterred, the loss to public debate isn’t that great — speakers are still free to speak to others besides the person they’re trying to annoy.
But one-to-many speech that is intended to annoy one or a few readers, but intended and likely to enlighten or persuade many other readers, is potentially much more valuable. Juan might think that the target of the speech deserves to be berated for his misconduct, and that the target’s supporters deserve to be berated for siding with the target; but Juan might also want the rest of the public to hear about the target’s misbehavior, and to be persuaded to think less of the target, or to act differently themselves.
Though the desire to annoy may sometimes be petty (and I’m using Juan just because Juan is our one anonymous coblogger here, not because Juan generally tries to annoy people!), it shouldn’t strip the speech of constitutional protection. “[I]n the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment…. [E]ven when a speaker or writer is motivated by hatred or ill will his expression was protected by the First Amendment ….” And the same is true, I think, in discussion of consumer matters, of religion, of sports, and of other things, not just public affairs.
3. Orin suggests that this isn’t a problem, because even traditional telephone harassment law has already been limited to exclude “speech [that] is protected by the First Amendment.” Orin cites United States v. Popa, a case that set aside as unconstitutional a conviction of Ion Popa, who made several racist calls to the U.S. Attorney for the District of Columbia (the chief federal prosecutor in the District). The trouble, though, is that it’s far from clear just what speech Popa protects.
A. One possible interpretation of Popa is that it bars telephone harassment prosecution when the “speech is protected by the First Amendment.” At some level, that’s almost tautological — of course when the speech is protected by the First Amendment, the First Amendment prohibits prosecution for that speech. But it also returns us to the underlying question: When is speech that’s intended to annoy the recipient protected by the First Amendment? If someone calls not a prosecutor but a law professor and leaves an anonymous deliberately annoying racist message, is that protected? What if he calls a law student with such a message? What if he posts an anonymous blog post that says this? The poster would have little guidance about what he may or may not say.
Of course, when prosecuted, the speaker can say “my speech is protected by the First Amendment.” But given that the statute draws no distinction between what constitutes protected annoying anonymous speech and what constitutes unprotected annoying anonymous speech, the speaker doesn’t know what he may safely say, and the prosecutor doesn’t have much guidance about what he should prosecute. It’s as if Congress enacted a whole bunch of speech restrictions but tacked on an “except if the First Amendment prohibits this” to them. The result would be speech restrictions that are technically not overbroad (since by their terms they don’t bar First-Amendment-protected speech), but that are practically too vague, since they provide little guidance to people about what they may say.
B. Another possible view is that the telephone harassment statute bars any prosecution for speech unless the speech falls within the traditional First Amendment exceptions, such as threats, obscenity (which means hard-core pornography), false statements of fact, fighting words, and the like. These exceptions are at least tolerably well-defined, and all of us already generally have to avoid speech that falls within these exceptions (since the federal and state governments have taken advantage of most of these exceptions to in fact outlaw or at least make tortious speech that fits in the exceptions).
But if that’s the interpretation of Popa, then most garden-variety telephone harassment, of the sort that most people assume is fully prosecutable, would be unpunishable. Calling someone anonymously simply to insult them wouldn’t be covered (such insults don’t fit within the “fighting words” exception, since the anonymity and distance of the speaker makes it unlikely that the speech will start a fight). Likewise for calling someone to make an indecent suggestion, except when the suggestion is an actual threat of violence or is so sexually explicit as to be obscene (which is a pretty high threshold to meet). The very premise of telephone harassment law, as it’s generally understood, is that some such speech — while protected in many media — is unprotected when said with the intent to annoy (and perhaps said to a particular person). Harassment law thus rests on the theory that there should be a new First Amendment exception recognized for “telephone harassment” that goes beyond just threats, fighting words, and the like. So the “speech is protected unless it’s threats, fighting words, obscenity, incitement, or false statements of fact” theory is thus almost certainly not what Congress has had in mind, and is unlikely to be adopted by the courts.
C. Popa can easily be read, I think, as holding that speech that’s “intend[ed] in part to communicate a political message” is protected from punishment by the statute. But it’s far from clear that this would protect speech on a Web site that’s intended to communicate a message about some company’s allegedly mistreatment of its consumers, that’s intended to criticize the performance of a sports figure, that’s intended to express an annoying view about theology, or whatever else. What’s more, it’s often not easy to tell exactly what’s a “political” message and what’s not. The court in Popa held that racist insults of a high-level official are political. What about speech that criticizes law professors (whether racist speech, speech that casts aspersions on their intellect or teaching ability, or what have you)? What about speech that criticizes a particular student in racist terms, but implicitly conveys a message about school admissions? (Not that I would endorse such speech, of course; I just think that (a) it ought to be constitutionally protected, when posted on a Web site, even if it’s intended to annoy, and (b) there’s likely to be controversy about whether it’s political.)
D. Finally, Popa can also be read as holding that speech is protected from the statute when the speaker “intend[ed] to engage in public or political discourse.” “Public discourse” is broader than just “political message,” and would certainly include religion and probably consumer matters involving large businesses and the like. But it too is a pretty vague term. Is publicly distributed personal criticism of a particular professional’s skills, for instance, a lawyer’s or a professor’s, “public discourse”? There’s no well-established First Amendment test for this, and the Court’s use of the related term “public concern” has proven to be unpredictable and, I think, often misguided (see Part V.B of this article, starting with PDF page 46).
So on balance I think the extension of the telephone harassment statute to the Web is a mistake. The statute already has problems, and the extension risks substantially exacerbating those problems, by potentially covering one-to-many annoying Web speech as well as the somewhat less valuable one-to-one annoying telephone calls.
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