This is happening in § 1003 of the Violence Against Women Reauthorization Act of 2011, which is apparently being debated tomorrow. Here’s the deal: 47 U.S.C. § 223(a) currently criminalizes
(C) mak[ing] 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; [or] ...
(E) mak[ing] repeated telephone calls or repeatedly initiat[ing] communication with a telecommunications device, during which conversation or communication ensues, solely to harass any person at the called number or who receives the communication.
This law already has some problems, I think, given the vagueness of terms such as “annoy” and “harass,” and it’s been held unconstitutional as applied in a case in which a man was prosecuted for leaving racist voice-mail for then-U.S. Attorney and now-Attorney General Eric Holder; it might therefore be unconstitutionally overbroad. But it has generally been upheld in most cases, and such a result may be defensible precisely because the statute deals with calls or messages to the person who is being harassed. Restricting such unwanted one-to-one speech (with a properly crafted and narrowed statute) should be permissible, because it leaves people free to communicate with willing listeners. See generally Rowan v. United States Post Office Dep’t (1970).
But now the Senate is considering replacing “harass any person at the called number or who receives the communication” with “harass any specific person.” This appears to be a deliberate attempt to remove the language that could be read as limiting the current statute to one-to-one communications. (The proposal would also remove “annoy” from item (C), but it would keep “harass.”)
So say that someone started to post anonymous (or pseudonymous) blog posts — or Twitter messages or online newspaper articles — criticizing Attorney General Holder, a local official, a police officer, a businessperson, a religious leader, or anyone else. The posts aren’t threatening or false, just harshly critical. And say a prosecutor decided that the speaker was partly motivated by a desire to “badger, disturb or pester” the target of his messages. The speaker could then be prosecuted, on the theory that he was
utiliz[ing] a telecommunications device ... without disclosing his identity and with intent to ... harass any specific person [added text italicized].
And this is so even though the speaker is talking to the public at large, not just to the target: As I said, the proposal would expressly delete the statutory language that could now be used to try to limit the statute to one-one unwanted messages.
The intent to harass would not have to be the sole intention. Subsection (E) specifically limits itself to situations where the speaker has the sole intention to harass, and while that’s problematic enough on its own terms (since it’s so hard to tell what’s a speaker’s “sole” intention), it makes clear that subsection (C), which lacks such limiting language, applies even to cases where the intent to harass is one of the speaker’s intention.
Say a speaker thinks Congressman Joe Schmoe (or Officer Joe Schmoe or Reverend Joe Schmoe) has done bad things and therefore (1) intends to communicate to the public why he thinks Joe Schmoe should be reviled, and (2) wants Joe Schmoe to feel reviled and embattled. Harsh and, especially, repeated anonymous criticism of Schmoe would then reasonably be seen as having an “intent to harass” as well as an intent to communicate to the public. Note also that the word “harass” is not defined in the statute, but the definition I gave above, which is to “badger, disturb or pester,” is taken from a case interpreting another criminal prohibition on things done with “intent to harass,” and reflects that court of appeals’ judgment of the dictionary meaning of the word. I have no reason to think that “harass” would be interpreted any more narrowly (or more clearly) than “badger, disturb or pester.”
And of course there’s every reason to think that the revised statute could be used not just to go after criticism of private individuals — though I think it would be unconstitutional even then — but also government officials. As you can see in these posts, these sorts of broad “harassment” statutes have recently been used to silence, prosecute, or try to unmask critics of prominent religious leaders, city commissioners, police officers, and candidates for elective office. Why is the Senate considering broadening federal speech restrictions to make such prosecutions easier?
Note also that the bill would also remove the limiting language from the provision (§ 223(E)) that covers even nonanonymous speech that’s said “solely to harass.” Under the bill, a signed blog post, online newspaper article, or Twitter message could lead to a prosecution if the prosecutor thinks the purpose of the message is “solely to harass” the person being criticized in the article. I would argue that statements to the public always have the intention to inform, persuade, entertain, or something else, even if they also have the intention to harass. But the bill is deliberately expanding the subsection to cover not just speech said to a person, but also speech said to the public about the person. And given the human tendency to assume the worst motivations in those whose views one disagrees with, it’s quite plausible that prosecutors, judges, and jurors might find someone guilty of publicly speaking “solely to harass” the person whom he is harshly criticizing, even when the speaker also has the purpose of informing or persuading the public.