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[Eugene Volokh, April 30, 2009 at 4:07pm] Trackbacks

Federal Felony To Use Blogs, the Web, Etc. To Cause Substantial Emotional Distress Through "Severe, Repeated, and Hostile" Speech?

That's what a House of Representatives bill, proposed by Rep. Linda T. Sanchez and 14 others, would do. Here's the relevant text:

Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both....

["Communication"] means the electronic transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received; ...

["Electronic means"] means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.

1. I try to coerce a politician into voting a particular way, by repeatedly blogging (using a hostile tone) about what a hypocrite / campaign promise breaker / fool / etc. he would be if he voted the other way. I am transmitting in interstate commerce a communication with the intent to coerce using electronic means (a blog) "to support severe, repeated, and hostile behavior" -- unless, of course, my statements aren't seen as "severe," a term that is entirely undefined and unclear. Result: I am a felon, unless somehow my "behavior" isn't "severe."

2. A newspaper reporter or editorialist tries to do the same, in columns that are posted on the newspaper's Web site. Result: Felony, unless somehow my "behavior" isn't severe.

3. The politician votes the wrong way. I think that's an evil, tyrannical vote, so I repeatedly and harshly condemn the politician on my blog, hoping that he'll get very upset (and rightly so, since I think he deserves to feel ashamed of himself, and loathed by others). I am transmitting a communication with the the intent to cause substantial emotional distress, using electronic means (a blog) "to support severe, repeated, and hostile behavior." (I might also be said to be intending to "harass" -- who knows, given how vague the term is? -- but the result is the same even if we set that aside.) Result: I am a felon, subject to the usual utter uncertainty about what "severe" means.

4. A company delivers me shoddy goods, and refuses to refund my money. I e-mail it several times, threatening to sue if they don't give me a refund, and I use "hostile" language. I am transmitting a communication with the intent to coerce, using electronic means "to support severe, repeated, and hostile behavior." Result: I am a felon, if my behavior is "severe."

5. Several people use blogs or Web-based newspaper articles to organize a boycott of a company, hoping to get it to change some policy they disapprove of. They are transmitting communications with the intent to coerce, using electronic means "to support severe, repeated, and hostile behavior." Result: Those people are a felon. (Isn't threatening a company with possible massive losses "severe"? But again, who knows?)

6. John cheats on Mary. Mary wants John to feel like the scumbag that he is, so she sends him two hostile messages telling him how much he's hurt her, how much she now hates him, and how bad he should feel. She doesn't threaten him with violence (there are separate laws barring that, and this law would apply even in the absence of a threat). She is transmitting communications with the intent to cause substantial emotional distress, using electronic means "to support severe, repeated, and hostile behavior." Result: Mary is a felon, again if her behavior is "severe."

The examples could be multiplied pretty much indefinitely. The law, if enacted, would clearly be facially overbroad (and probably unconstitutionally vague), and would thus be struck down on its face under the First Amendment. But beyond that, surely even the law's supporters don't really want to cover all this speech.

What are Rep. Linda Sanchez and the others thinking here? Are they just taking the view that "criminalize it all, let the prosecutors sort it out"? Even if that's so, won't their work amount to nothing, if the law is struck down as facially overbroad -- as I'm pretty certain it would be? Or are they just trying to score political points here with their constituents, with little regard to whether the law will actually do any good? I try to focus my posts mostly on what people do, not on their motives, but here the drafting is so shoddy that I just wonder why this happened.

Related Posts (on one page):

"Reasonable Regulation of Speech":
Rep. Linda Sanchez Defends Proposed Outlawing of Using Blogs, the Web, Etc. To Cause Substantial Emotional Distress Through "Severe, Repeated, and Hostile" Speech:
Federal Felony To Use Blogs, the Web, Etc. To Cause Substantial Emotional Distress Through "Severe, Repeated, and Hostile" Speech?

Comments

[Eugene Volokh, May 7, 2009 at 7:52pm] Trackbacks

Rep. Linda Sanchez Defends Proposed Outlawing of Using Blogs, the Web, Etc. To Cause Substantial Emotional Distress Through "Severe, Repeated, and Hostile" Speech:

Last week, I cricitized Rep. Linda Sanchez's bill that says,

Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both....

["Communication"] means the electronic transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received; ...

["Electronic means"] means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.

I gave several examples of the kinds of speech the law might turn into a federal felony, but for now let me just give two of them, merged into one:

I try to coerce a politician into voting a particular way, by repeatedly blogging (using a hostile tone) about what a hypocrite / campaign promise breaker / fool / etc. he would be if he voted the other way. Or I repeatedly blog the same after the vote, because I want the politician to feel ashamed and publicly condemned. I am transmitting in interstate commerce a communication with the intent to coerce or substantially distress using electronic means (a blog) "to support severe, repeated, and hostile behavior" -- unless, of course, my statements aren't seen as "severe," a term that is entirely undefined and unclear.

Others criticized the bill as well.

Yesterday, Rep. Sanchez defended her bill, on the Huffington Post. Check out her response, and see what you think. Here's what I think:

1. Sanchez's post nine times mentions the need to protect children (or "young" people). But the proposed law is not in any way limited to speech aimed at a child. It three times mentions the "anonymity" of the Internet. But the proposed law is not in any way limited to anonymous speech.

2. So what about speech that's aimed at adults, including adult Congresswomen and other public figures? Sanchez tells us, "bloggers, emailers, texters, spiteful exes, and those who have blogged against this bill have no fear." "Congress has no interest in censoring speech and it will not do so if it passes this bill. Put simply, this legislation would be used as a tool for a judge and jury to determine whether there is significant evidence to prove that a person 'cyberbullied' another. That is: did they have the required intent, did they use electronic means of communication, and was the communication severe, hostile, and repeated."

But the whole problem is that bloggers, newspaper commentators whose columns are posted online, and others are not protected against the law, precisely because much constitutionally protected speech is said with an intent to coerce or substantially distress, is severe, is hostile, and is repeated.

(Show the rest of the post.)

Sanchez writes that "the Act would give judges and juries discretion to recognize the difference between an annoying chain email, a righteously angry political blog post, or a miffed text to an ex-boyfriend and serious, repeated, hostile communications made with the intent to harm." Yet that's a false dichotomy: What about serious, repeated, hostile righteously angry political blog posts made with the intent to coerce a politician to change her policies? What about serious, repeated, hostile online newspaper columns made with the intent to substantially distress a politician (or a leading business figure or some such) whom the speaker is angry at?

What in the statute authorizes judges or juries to distinguish those from the "serious, repeated, hostile communications made with the intent to harm"? Nothing -- those statements (and many other statements that are constitutionally protected) are serious, repeated, hostile communications made with the intent to harm, and under Rep. Sanchez's proposals would be federal felonies.

3. Sanchez argues that "Slander and libel law provide for different standards when the injured party is a public official or private person, and nothing in the Megan Meier Cyberbullying Prevention Act attempts to override that principle," and points to the judges' and juries' "discretion" (see the quote a couple of paragraphs above) as a means of implementing that principle. But the statute says not a word about any such distinction. Where are judges and juries to pick up on that? Are they just to intuit it? Plus, first, unguided jury discretion is itself a First Amendment problem, because of the risk that juries will apply the law in viewpoint-based ways. And, second, even speech that distresses private people is generally constitutionally protected.

4. Sanchez points to existing First Amendment exceptions as justifications for her proposal, but those exceptions are narrow, and far removed from what she's talking about. It's true that the Court has held that there is no value in false statements of fact, Gertz v. Robert Welch (1974) (which is why libel, slander, false statements of fact, identity theft, and false commercial speech are unprotected). But that hardly explains why it's permissible to ban true statements, as well as statements of opinion.

Likewise, it's true that the Court has recognized that true threats of violence are legally punishable. But that narrow exception hardly applies to "severe, repeated, and hostile" speech that's "inten[ded] to coerce, ... harass, or cause substantial emotional distress." In fact, the Court has repeatedly held that even speech that's coercive -- for instance, through fear of social ostracism -- and extremely distressing is constitutionally protected, even against mere civil liability. See, e.g., NAACP v. Claiborne Hardware (1982); Hustler Magazine v. Falwell (1988). The Court has never accepted the notion that the narrow and historically recognized exceptions to protection justify a broad range of "reasonable regulation of speech."

And to cover her other examples, the law generally doesn't criminalize "sexual harassment," and doesn't make civilly actionable the posting of sexist or sexually offensive statements on Web sites; any such liability would likewise be unconstitutional. And "stalking" restrictions are constitutional only if they're far more narrowly crafted, for instance limited to repeated speech to a particular person, rather than speech published on Web sites and blogs (two items that the law expressly covers).

This is exactly what free speech maximalists often argue when new exceptions, however narrow, are suggested: Sure, this one is narrow, but what others will be argued by analogy to them? The slippery slope is a serious concern in a legal system that's based on precedent and analogy. We're seeing Sanchez trying to slip another step down, by analogy to restrictions that are very different from the one she is proposing. And if she prevails, what other restrictions could then be defended by analogy to her new "cyberbullying" exception.

(Hide most of the above.)

5. Sanchez reports that her proposal was run by a "variety of experts and law professors." I would like to see even one statement from one such expert that would explain how this law is constitutional. The law is clearly unconstitutionally overbroad. And to the extent that one tries to cure that breadth by reading things into it that don't appear on the text (say, a "public figure"/"private figure" distinction somehow shoehorned into the words "severe" or "hostile"), it is unconstitutionally vague.

But Sanchez's defense of the law as written troubles me even more. If Sanchez did want to limit the law to speech aimed at children, or focus only on individualized communications and not blog posts or other speech aimed at the public at large, or exclude public figures or matters of public concern, she could easily amend the bill.

Yet apparently she doesn't want to impose such limitations. The ban on "severe, repeated, and hostile" speech -- including on "blogs [and] websites" -- that's intended to "coerce, ... harass, or cause substantial emotional distress to a person," including adults and including politicians, seems to be exactly what she wants.