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 does cover — there would be no constitutional problem. But trying to outlaw speech that is made “with the intent to … harass” and “would be reasonably expected to cause substantial emotional distress” often violates the First Amendment, as the federal judge rightly held in the Twitter case. It seems to me that Congress should be fixing this constitutional problem rather than expanding it.
UPDATE: I accidentally quoted the wrong passage in the block quote; sorry about that.