iOS app Android app

Eugene Volokh

Eugene Volokh

Posted May 7, 2009 | 09:47 PM (EST)

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

Yesterday, Rep. Sanchez defended her bill on this subject in an item here on the Huffington Post. Unfortunately, the response doesn't quote or link to the bill, which in relevant part reads:

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.

Read her defense of the bill, and see what you think; here are a few thoughts of mine:

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.

Say, for instance, that you 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 say that you repeatedly blog the same after the vote, because you want the politician to feel ashamed and publicly condemned. You are 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.

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.

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 than I was troubled when I first blogged about the bill last week. 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.