One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyber-Stalking”

The unfortunate situation involving the apparent arrest of Aaron Walker for blogging about the convicted bomber Brett Kimberlin leads me to post an early draft of my forthcoming Northwestern University Law Review article, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyber-Stalking”. It’s still a very early draft, with many footnotes still on the skeleton side; but it seems timely.

The article begins with a discussion of four cases where “criminal harassment” laws, “stalking” laws, or protective orders were used — (1) the prosecution of a candidate for city council (Philip Speulda) who distributed leaflets suggesting his opponent was homosexual, (2) the Renton Police Department’s attempt to use such a law to uncover the identity of someone who was publishing satirical YouTube cartoons related to the department, (3) an order barring a Berea, Ohio community activist from saying anything about the mayor’s sister (who held various civic positions), and (4) the prosecution of William Cassidy for his persistent Twitter criticism of a Buddhist leader — and then goes on:

A few decades ago, criminal “harassment” usually referred to telephone harassment — unwanted communications to a particular person. Likewise, stalking laws were originally created to deal with people who were physically following a person, or trying to talk to that person. The same has historically been true with regard to restraining orders.

But, increasingly, these laws have been reworded or interpreted in ways that also cover speech about a person, even when that speech is communicated to potentially willing listeners; this is especially true with regard to recent proposals to ban “cyber-harassment” or “cyber-bullying.” And, as the examples given above show, such laws are indeed being used in precisely these ways.

Sometimes the laws are applied to speech about an ex-spouse or a neighbor, or about someone with whom one has had business dealings, but sometimes they are applied to speech about government officials. They could equally be applied to speech about media figures, university professors, businesspeople, and the like. The question is whether such laws and restraining orders are constitutional, when applied to speech that’s outside the traditional First Amendment exceptions (chiefly threats and “fighting words,” plus perhaps libel and other knowing falsehoods), and speech that is said about the target rather than just to the target. This article will argue that the answer is generally “no.”