Archive | “Bullying” Bans

Senate Considering Extending Statute That Led to Unconstitutional Prosecution for Twitter Messages That Criticized Religious Leader

As I noted last year, a federal prosecutor indicted a man for his campaign of insulting Twitter messages about a Buddhist religious leader, and a federal judge then dismissed the indictment on First Amendment grounds.

Some of the Twitter posts might have been seen as threatening, but the government’s theory wasn’t that they were threatening, but that they where posted “with the intent to harass and cause substantial emotional distress to” the religious leader, and actual caused such distress, in violation of the federal antistalking statute, 18 U.S.C. § 2261A. The district court correctly held that the statute was unconstitutional as applied, and left open the possibility that it might be unconstitutional on its face as well. The government appealed, but earlier this month decided to drop the appeal.

Now the Senate, rather than tightening the law to prevent its being applied to constitutionally protected speech, is considering expanding it. Section 107 of the Violence Against Women Reauthorization Act of 2011 (which I blogged about below, as to a different constitutionally troublesome provision) would take the existing statute and have it cover not just speech that causes substantial emotional distress, but also speech that “attempts to cause, or would be reasonably expected to cause substantial emotional distress,” so long as the speaker is intending to (among other things) “harass” the target. Anyone who

with the intent to … harass … uses the … any interactive computer service … to engage in a course of conduct that … causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to [the person or the person’s family member]

would now be committing a federal crime. If the statute were just limited to conduct and speech intended to threaten someone — which the rest of the statute [...]

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Crime to Insult a Minor Twice Online With Intent to Annoy?

That’s what would happen under a Monroe County (New York) bill, proposed by County Executive Maggie Brooks, County Legislature Vice President Michael G. Barker, and County Legislator Carmen F. Gumina. The bill reads, in relevant part (paragraph break added):

[It shall be unlawful for a person] to … with intent to harass [or] annoy [a minor] … engag[e] in a course of conduct or repeatedly commit[] acts of abusive behavior over a period of time by [electronic] communication.

Acts of abusive behavior shall include, but not [be] limited to: taunting; … insulting; tormenting; humiliating; disseminating sexually explicit photographs, either actual or modified, of a minor; disseminating the private, personal or sexual information, either factual or false, of a minor without lawful authority.

So the following would all be criminals, punishable by up to a year in jail:

  1. Someone who sends two e-mails over several days to friends — or posts two items on a Facebook page or a blog post — insulting a high school classmate, with the intent to annoy him.
  2. Someone who twice (over several days) e-mails or posts something condemning her ex-boyfriend for cheating on her (since that would be revealing “sexual information” “of a minor”), with the intent to annoy the ex-boyfriend.
  3. Someone who writes two newspaper articles or blog posts (over several days) insultingly condemning a juvenile criminal, with the intent to annoy him (perhaps because he wants the criminal to feel bad about the crimes).
  4. Someone who twice (over several days) e-mails or posts something mocking a candidate for high school student government, with the intent to annoy the candidate.
  5. Someone who twice (over several days) e-mails or posts something taunting a rival high school’s sports team, with the intent to annoy the players on that team.

Note that I say “twice” because the [...]

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Should Colleges Punish “Cyber-Bullying” by Their Students?

So argue two lawyers in a recent Chronicle of Higher Education article, warning of legal liability if colleges don’t take suitable steps to suppress such speech. The article is short on definitions of cyber-bullying, but calls for colleges to update their “anti-bullying and social-media policies to take into account the immediate and significant harm that can be inflicted when bullying behavior leaves the dormitory or the quad and goes online,” and to have administrative processes to “foster a safe and supportive” (and “more inclusive”) “environment for all of its students” by “[m]anaging the recent and exponential growth of social-media sites and digital forms of communication.”

This sounds to me like more than just a call for punishing constitutionally unprotected speech, such as threats of violence — though how much more is hard to tell. It will be interesting to see what new university speech codes aimed at preventing “cyber-bullying” are going to spring up in the coming years. [...]

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Speech Urging an Employer to Fire an Employee

My post about the Minnesota trial court order forbidding a parent to urge a Catholic school to fire a gay teacher led to several commenters’ suggesting that such speech may indeed be restricted, at least if it consists of more than just one e-mail. Such speech, the theory is, may indeed constitute “harassment,” if it’s repeated (and perhaps if it’s aimed at not just the current employer but future employers, if this employer does fire the employee). Or, the argument goes, it could be punishable under the tort of intentional interference with business relations.

I think that’s wrong. The First Amendment, it seems to me, protects people’s rights to express their views, including when the views are aimed at persuading others to act, and including when the action is firing an employee, cutting off a contract with a contractor, and so on. If the speech falls within an existing First Amendment exception, for instance because it’s a threat of criminal conduct or a knowingly false accusation, then the speech can be punished. But outside those exceptions, speech urging the legally permissible firing of a schoolteacher — or a spokesman or a radio talk show host — is as protected as speech urging anything else.

The Supreme Court has expressly held that the tort of intentional interference with business relations is constrained by the First Amendment, and that speech aimed at producing economic pressure is constitutionally protected notwithstanding the tort. This happened in NAACP v. Claiborne Hardware (1982), where the NAACP organized a boycott of white-owned businesses aimed at pressuring them to hire black employees (and aimed at other things as well). The Court reversed an interference with business relations tort verdict, on the grounds that “Speech does not lose its protected character, however, simply because it may embarrass others [...]

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Anti-“Harassment” Order Based on Letters to Employer Alleging a Catholic School Teacher Was Gay

I’m writing an article on the First Amendment, criminal harassment law, and the constitutional distinction between speech said to a particular objecting person and speech said to the public; and in the process, I ran across this 2001 case that I thought I’d mention, since it could equally come up today.

Minnesota law provides, in relevant part,

“Harassment” includes: … repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another ….

The court may grant a restraining order ordering [a person] to cease or avoid the harassment of another person or to have no contact with that person if … the court finds at the hearing that there are reasonable grounds to believe that the respondent has engaged in harassment….

A first-offense violation of the restraining order is generally both a misdemeanor and punishable as contempt of court, but when a person “knowingly violates the order … because of the victim’s or another’s actual or perceived race, color, religion, sex, sexual orientation, disability …, age, or national origin,” the violation is a felony.

Now note that the statute isn’t limited to traditional telephone harassment or stalking that only involves unwanted speech to the target. It potentially also includes unwanted speech about the target, so long as it is “repeated” and “[has] a substantial adverse effect or [is] intended to have a substantial adverse effect on the safety, security, or privacy” of the target. This means the law potentially cuts off not just speech to one unwilling listener (or a few unwilling listeners), but also speech to willing listeners as well. The Minnesota courts have read the statute as covering two categories of unprotected speech — “‘fighting [...]

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Revisions Planned for Arizona Ban on “Obscene, Lewd or Profane Language” Used Online “With Intent to … Offend”

As I noted last week, both houses of the Arizona legislature passed a bill that would say,

It is unlawful for any person, with intent to[, among other things,] harass, annoy or offend, to use any electronic or digital device and use any obscene, lewd or profane language ….

Many people criticized the bill, as did I, but just a few days ago, a co-sponsor of the bill (UPDATE: Vic Williams) was having none of it, writing,

As the co-sponsor of HB2549 I can see the conspiracy have their tin-foil hats on tonight.

HB2549 is being chased down by the “black-helicopter” crowd. Their claims of internet restriction are unfounded and way off base!!

You can read the bill and full details @ http://www.vote4vic.com/index.cfm/article_58.htm

Yet the tin foil apparently worked: Another co-sponsor has now announced that the bill will be revised, before being sent to the Governor. According to CNN,

[Arizona Rep. Ted] Vogt said Wednesday that the bill would be amended to say those harassing communications must be directed at a specific person and must be “unwanted or unsolicited.”…

The bill will not apply to online comment sections or semi-public forums such as Facebook walls, Vogt said.

“With Facebook, you’ve got control over who your friends are,” he said. “So if somebody is threatening you and you never de-friend them then you’re not controlling it. You’re inviting people to comment freely on your Facebook page. You can de-friend them and you can end the problem there.”

Comments sections are the same, he said, since websites don’t have to invite people to comment and can take down those sections if they are worried about threats.

I haven’t seen any specific proposed text (none is posted yet on the Legislature’s site), so I can’t speak to how good the [...]

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A Crime to Use “Any Electronic or Digital Device” “And Use Any Obscene, Lewd or Profane Language” “With Intent to … Offend”?

That’s what Arizona HB 2549, which was just passed by both houses (though not yet signed by the Governor) provides, in relevant part:

It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use a telephone ANY ELECTRONIC OR DIGITAL DEVICE and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.

I take it that this refers only to speech intended to offend someone who receives it, and not someone who hears about it indirectly. But note the significance of the shift from a telephone to “any electronic or digital device”: Telephones are basically one-to-one devices, so a phone call that uses profane language to offend is likely meant only to offend the one recipient, rather than to persuade or inform anyone; but computers used to post Facebook messages or send Twitter messages or post blog items can offend some listeners while persuading and informing others.

So, under the statute, posting a comment to a newspaper article — or a blog — saying that the article or post author is “fucking out of line” would be a crime: It’s said with intent to offend, it uses an electronic or digital device, and it uses what likely will be seen as profane language (see, e.g., City of Columbia Falls v. Bennett (Mont. 1991)). Likewise if a blog poster were to post the same in response to a commenter’s comment. Likewise if someone posts something in response to an e-mail on an e-mail-based discussion list, or in a chatroom, or wherever else. (Note that if “profane” is read to mean not vulgarly insulting, but instead religiously offensive, see City of Bellevue v. Lorang (Wash. [...]

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Proposed Connecticut “Cyber-Harassment” Law

The Raised Bill No. 456, sec. 2 would provide, in relevant part:

(a) A person commits electronic harassment when such person, with intent to harass, annoy or alarm another person, transmits, posts, displays or disseminates, by or through an electronic communication device, radio, computer, Internet web site or similar means, to any person, a communication, image or information, which is based on the actual or perceived traits or characteristics of that person, which: …

(2) Has a substantial and detrimental effect on that person’s physical or mental health;

(3) Has the effect of substantially interfering with that person’s academic performance, employment or other community activities or responsibilities;

(4) Has the effect of substantially interfering with that person’s ability to participate in or benefit from any academic, professional or community-based services, activities or privileges; or

(5) Has the effect of causing substantial embarrassment or humiliation to that person within an academic or professional community.

So say Michael Bellesiles says things that are false, and my colleague Jim Lindgren posts a devastating critique of Bellesiles’ work. This rightly should “caus[e] substantial embarrassment or humiliation to [Bellesiles] within an academic or professional community,” and rightly should “substantially interfer[e] with [Bellesiles’] … employment” (Bellesiles ultimately resigned under pressure from his tenured job because of what his critics, including Jim, pointed out about his work) as well as with Bellesiles’ “ability to … benefit from any academic[ or] professional … privileges.” [UPDATE: And the critique may well be based on Lindgren’s judgment about Bellesiles’ “perceived trait” of academic carelessness or even dishonesty.]

This means that the only thing that would stand between Jim and criminal prosecution — if Lindgren were in Connecticut, and the law were enacted — would be the question whether Lindgren had the “intent to harass, annoy or alarm another person.” Now [...]

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Article in High School Newspaper Criticizing Homosexuality = “Bullying”?

The Shawano High School newspaper decided to run dueling student opinion pieces on whether same-sex couples should be able to adopt children; the student article that answered the question “no” said, among other things, quotes Leviticus 20:13 (“If there is a man who lies with a male as those who lie with a woman, both of of them have committed a detestable act; they shall surely be put to death. Their bloodguiltiness is upon them.”). The school district then publicly apologized for the column, as an “[o]ffensive article[] cultivating a negative environment of disrespect,” and said that it is “taking steps to prevent items of this nature from happening in the future.” And in a Fox interview, the school superintendent labeled the column a form of “bullying.”

Now I’ve long thought that Hazelwood School Dist. v. Kuhlmeier (1988) was correct, and that public K-12 schools should be free to control what is published in the school newspaper. If a school wants the newspaper to be its voice, it should be entitled to dictate which subjects and which viewpoints it chooses to carry, even when it speaks through the speech of students.

But what troubles me here is the superintendent’s willingness to label such speech as a form of “bullying,” which is speech that schools often ban even outside the school’s own newspaper, that schools often try to restrict even when it is said outside school, and that legislatures sometimes even try to criminalize. Indeed, the Shawano School District’s bullying policy provides that “bullying” may lead to “warning, suspension, exclusion, pre-expulsion, expulsion, transfer, remediation, termination, or discharge. Disciplinary consequences will be sufficiently severe to try to deter violations and to appropriately discipline prohibited behavior.”

I’ve long been troubled by anti-bullying policies and criminal laws, partly because “bullying” is [...]

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Court Rejects Prosecution of Man for Writing Many Insulting Tweets and Blog Posts About Religious Leader

I blogged about this in August, but now there’s a District Court decision dismissing the indictment, United States v. Cassidy (D. Md. Dec. 15, 2011), and it strikes me as generally quite correct. Here is a rough summary of what seem to be the facts, from the original post:

William Lawrence Cassidy is charged with violating the federal antistalking statute, 18 U.S.C. § 2261A by “with the intent to harass and cause substantial emotional distress to a person … us[ing] an interactive computer service … to engage in a course of conduct that caused emotional distress to that person, to wit: the posting of messages on www.twitter.com and other Internet websites concerning [Alyce Zeoli].” (For details about Cassidy’s tweets and post, see the criminal complaint.)

Here’s the backstory:

Born in Canarsie, Brooklyn, Ms. Zeoli is considered to be a reincarnated master in the Tibetan Buddhist religious tradition, and is known to her followers as Jetsunma Ahkon Lhamo. She is an avid Twitter user, with 23,000 followers. A representative for Ms. Zeoli said she declined to be interviewed for this article.

According to the F.B.I. and Ms. Zeoli’s lawyer, Mr. Cassidy also claimed to be a reincarnated Buddhist when he joined Ms. Zeoli’s organization, Kunzang Palyul Choling, in 2007. He signed up using a false name and claimed to have had lung cancer, they said. Ms. Zeoli’s organization cared for him and, briefly, even appointed him to its executive team [as Chief Operating Officer]. The relationship soured after they came to doubt his reincarnation credentials and found that his claims of cancer were false. Mr. Cassidy left.

After Cassidy left, he started saying insulting things about Zeoli online, ultimately with over 8000 tweets over the span of several months. A few could be seen as potentially threatening, e.g.,

[...]
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Four New York Democratic Senators: “Proponents of a More Refined First Amendment Argue That This Freedom Should Be Treated Not as a Right But as a Privilege”

The sentence reads, in a context that shows the authors agree with the argument:

Proponents of a more refined First Amendment argue that this freedom should be treated not as a right but as a privilege — a special entitlement granted by the state on a conditional basis that can be revoked if it is ever abused or maltreated.

That’s what’s written in the recently released Cyberbullying: A Report on Bullying in a Digital Age, published by the Independent Democratic Conference, a group of four New York state senators — Jeff Klein, Diane Savino, David Carlucci and David Valesky. The theoretical explanation of this “more refined First Amendment” in the report is pretty general and abstract, but the concrete proposal in the report seems quite consistent with the disdain for the First Amendment that the phrase “this freedom [of speech] should be treated not as a right but as a privilege” suggests.

That proposal has two parts. First, the senators say they’ll introduce a bill that, among other things, would make it a crime to “intentionally, and for no legitimate purpose, engage[] in a course of conduct using electronic communication directed at a child under the age of twenty-one years” when the actor “knows or reasonably know that such conduct … causes material harm to the mental or emotional health … of such child.” And the bill would “clarif[y] that a single electronic communication can be considered a ‘course of action’ if it is directed at a child under the age of twenty-one years and transmitted to multiple recipients –- even if the child is not one of them.”

So let’s consider this (assume all the actors here are teenagers, unless otherwise specified):

(1) A girl finds that her boyfriend has been cheating on her with her best friend. [...]

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Federal Government Prosecuting Man for Writing Many Insulting Tweets and Blog Posts About Religious Leader

Somini Sengupta at the New York Times wrote today about this case, in which William Lawrence Cassidy is charged with violating the federal antistalking statute, 18 U.S.C. § 2261A by “with the intent to harass and cause substantial emotional distress to a person … us[ing] an interactive computer service … to engage in a course of conduct that caused emotional distress to that person, to wit: the posting of messages on www.twitter.com and other Internet websites concerning [Alyce Zeoli].” (For details about Cassidy’s tweets and post, see the criminal complaint [UPDATE: fixed link].)

Here’s the backstory:

Born in Canarsie, Brooklyn, Ms. Zeoli is considered to be a reincarnated master in the Tibetan Buddhist religious tradition, and is known to her followers as Jetsunma Ahkon Lhamo. She is an avid Twitter user, with 23,000 followers. A representative for Ms. Zeoli said she declined to be interviewed for this article.

According to the F.B.I. and Ms. Zeoli’s lawyer, Mr. Cassidy also claimed to be a reincarnated Buddhist when he joined Ms. Zeoli’s organization, Kunzang Palyul Choling, in 2007. He signed up using a false name and claimed to have had lung cancer, they said. Ms. Zeoli’s organization cared for him and, briefly, even appointed him to its executive team [as Chief Operating Officer]. The relationship soured after they came to doubt his reincarnation credentials and found that his claims of cancer were false. Mr. Cassidy left.

After Cassidy left, he started saying insulting things about Zeoli online, ultimately with over 8000 tweets over the span of several months. A few could be seen as potentially threatening, e.g., “ya like haiku? Here’s one for ya: ‘Long, Limb, Sharp Saw, Hard Drop’ ROFLMAO.” But the complaint isn’t limited to those, or even mostly focused on them; it also includes statemento like, “[Zeoli] is a [...]

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“Respondent Is Prohibited from Posting Any Information/Comments … on Any Internet Site Regarding the Petitioner [the Mayor’s Sister] and … Her Immediate or Extended Family”

[UPDATE: The order has now been rescinded.]

Johanna Hamrick runs the Berea Post blog, and had been candidate for mayor and city council president in Berea, Ohio. She had posted various things critical of Norma Kleem, the sister of the Berea mayor, and (among other things) Berea Commission on Aging member and, apparently, the organizer of the Berea July Fourth parade, such as:

DON’T FORGET YOUR TOMATOES!

As the Fourth of July Parade is approaching we are getting so excited here at The Berea Post. It is sure to be a special year as we have heard of only one parade participant having a discriminatory letter.

All persons receive a letter to be a part of the parade. As you guessed it, you have to return your form to Norma Kleem. In prior years she has limited who is allowed in the gate, what vehicles, and many other obstacles have been put up. This year the letter was the same as prior years, all except one. One persons letter stated that only Berea City Fire Trucks were allowed in. Why? Well if the City Club gets their donated fire truck in, someone could look better on the fire truck. Yes, one letter stated this information. How low can you go? Well the little dictator wants control. Little dictator wants to make sure any opponent is denied like in past years.

Please Sunday July 3rd, DO NOT FORGET YOUR TOMATOES!!! I truly would love to chuck one right at someone in THAT camp. It would be quite enjoyable. Happy Independence Day Berea.

Norma Kleem sought a protection order against Hamrick based on this post and other conduct (including, allegedly, following Kleem in her car, and trying to hit Kleem with her car). On Monday, Judge Nancy Margaret Russo granted the [...]

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City of Renton Drops Attempt to Prosecute Its Critic (and to Use a Search Warrant to Uncover His Identity)

I blogged about this case earlier under the headings “Is It a Crime to Publish Parody Videos That Use “Lewd … Language” Meant to “Embarrass and Emotionally Torment” Police Officers?” and “Search Warrant for Name of the Author of the Renton (Washington) Parody Videos Temporarily Stayed.” The news, reported last night by the Seattle Times, is that “The city of Renton won’t pursue cyberstalking charges against the digital cartoonist” and “the city withdrew the [search] warrant” aimed at uncovering the critic’s name. “Instead, officials said Thursday, they will conduct an internal investigation because they believe the cartoonist is a current police officer.” (The government’s power to discipline or even fire its employees based on their speech is considerably greater than its power to prosecute people based on their speech.)

“‘There has been no relevant information that we have uncovered to date on the cyberstalking case to further a criminal investigation,’ Chief Administrative Officer Jay Covington said in a statement.” Sounds quite right, for reasons I discussed in the original post. Thanks to Shane Lidman for the pointer. [...]

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Search Warrant for Name of the Author of the Renton (Washington) Parody Videos Temporarily Stayed

I blogged about this case last week (Is It a Crime to Publish Parody Videos That Use “Lewd … Language” Meant to “Embarrass and Emotionally Torment” Police Officers?); yesterday, the judge stayed the search warrant aimed at unmasking the author of the videos, pending a hearing on whether the search warrant should be quashed. [UPDATE: The request to quash the warrant came from lawyer Harish Bharti, who is representing an unidentified client (who might well be the anonymous author of the videos).]

As I argued in my earlier post, under the City Attorney’s interpretation of the Washington cyberstalking statute that the videos supposedly violate, that statute violates the First Amendment and is unconstitutionally overbroad on its face; if that’s so, then the warrant should indeed be quashed, because it will not reveal evidence of criminal conduct. It will be interesting to see what ultimately happens in court. Thanks to Ed Grinberg for the pointer. [...]

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