Crime to “Disparag[e]” an Under-18-Year-Old “With Intent to Harass”?

That’s what Pennsylvania HB1163, which passed the Judiciary Committee by a 25-0 vote in May, would provide:

(1) A person commits the crime of cyber harassment of a child if, by means of an electronic communication and with intent to harass a child, he repeatedly communicates or, on at least one occasion, makes available to a user of an electronic social media network or service, information about a child under 18 years of age which, whether true or not, includes any of the following:

(i) A statement or opinion about the child’s sexuality or sexual activity.

(ii) A disparaging statement or opinion about the child’s physical characteristics, mental or physical health or condition.

(iii) A threat of unlawful harm.

(2) Nothing under this subsection shall prohibit a communication made for medical, educational or other legitimate purposes, if the actor is an adult….

(f) Definitions. —

“Disparaging statements or opinions.” A statement or opinion which significantly ridicules, demeans or in the context or circumstances, would cause serious embarrassment to the victim….

“Electronic social media network or service.” A form of electronic communication such as Internet websites for social networking through which a user creates an online community to share information, an idea, a personal message and other content through print, photograph and video….

“Repeatedly communicates.” To convey more than one message over a period of time.

So the following would be crimes under this law, if a jury found that the posting was done “with intent to harass”:

  1. A 17-year-old girl posting on Facebook that she broke up with her boyfriend because he cheated on her.
  2. A 13-year-old posting on Facebook that the person bullying him is sociopathic (an opinion about the child’s mental condition), if that can be said to “significantly … demean[]” the bully.
  3. Someone posting the same about a juvenile criminal.
  4. Someone posting that some high school athlete isn’t good enough for the team because his “physical characteristics” or “physical … condition” are inadequate, if that can be said to “significantly … demean[]” the athlete.
  5. Someone posting that an underage complainant’s rape charges against an accused rapist were trumped up, because the poster thinks that the sex was consensual, or that the charges were made to cover up the complainant’s other sexual activity. (In both instances, the statement would be “information” “whether true or not” that constitutes “[a] statement or opinion about the child’s … sexual activity.”)
  6. Someone arguing that the accused rapist (assuming the accused is underage) is indeed guilty of rape.

If an adult had made the statements, the exclusion for communications made for “legitimate purposes” might come into play in some of these examples — but that is itself highly ill-defined (is a purpose to harshly criticize one’s cheating ex, and let one’s friends know that he shouldn’t be trusted, “legitimate”?), and in any event this only applies for statements by adults. Statements by other children wouldn’t be immunized even if they have a “legitimate purpose[].”

Nor is the requirement of “intent to harass” sufficient to justify the law, I think. What constitutes “intent to harass” is far from clear, and a hostile prosecutor, judge, and jury can easily find such an intent in any situation where the speaker has cause to dislike the subject of the speech. So even if a speaker is confident that he or she isn’t talking with “intent to harass,” and even in examples where you and I think the speaker isn’t talking with “intent to harass,” a prosecutor or a juror might well reach the opposite result. And while I agree that speech to a person can sometimes be restricted because it’s offensive and said with the intent to harass (consider telephone harassment laws), speech about people shouldn’t be restrictable simply because of the speaker’s allegedly improper intent. I discuss this more in my One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyber-Stalking” article, especially in Part II.F.

So the proposal strikes me as both a First Amendment violation and profoundly unwise, risking making criminals out of most Pennsylvania teenagers. There’s a follow-up hearing before the Committee, despite the unanimous vote in May, scheduled for September 12; if anyone hears what happens then, please let me know. Thanks to William Raftery for the pointer.

UPDATE: Note that, read literally, the law covers electronic communications that merely “make[] available” information “to a user of an electronic social media network or service,” so even an e-mail or a text from one person to one other person would qualify so long as the recipient has a Facebook account. But my examples work even if the statute is narrowed (by the legislature or by courts) to apply only to communication to a user of a social media network via a post on such a network.