Disclosure: I consulted with Aaron Walker’s lawyer on the case. [...]
The peace order barring blogger Aaron Walker (aka Aaron Worthing) from blogging about Brett Kimberlin has been modified pending a hearing in July. As Popehat notes, the circuit order included a benchslap at the lower court judge, C.J. Vaughey, for disregarding the Supreme Court’s seminal First Amendment decision in Brandenburg v. Ohio.
This case arises from what is apparently a long-running feud between Anthony Stamness and Christian Svedberg, both minors…. Testimony indicated that Stamness and others referred to Svedberg as “Dumbo,” a cartoon elephant with unusually large ears, and Stamness had, on one occasion, stated, “You had better watch it Dumbo or I will kill you.”
In addition Stamness, along with others, constructed three large snow figures that were prominently displayed throughout the community of Northwood. All of the snow figures were constructed with very large ears. After hearing the evidence the court concluded that these threats and taunts, harassment, and construction of snow figures were intended to adversely affect the safety, security, and privacy of Svedberg. As a result the court ordered that “Anthony Stamness shall have no contact with Christian Svedberg and shall cease or avoid the following specific conduct: Uninvited visits to the Petitioner, harassing phone calls to the Petitioner, calling the Petitioner abusive names (including “Dumbo”), or any other conduct which injures the Petitioner, either physically or emotionally, including the construction and public display of any effigy of Christian Svedberg.”
The court upholds the order, on the grounds that the defendant’s conduct, including the snow sculptures, were “fighting words” that justified the injunction. (Note that the injunction didn’t focus on threats, but also banned calling Svedberg “dumbo” and publicly displaying “any effigy” of Svedberg.)
Logic demands that when determining whether an expression constitutes fighting words, the age of the addressee must be taken into account. No one would argue that a different reaction is likely if a thirteen-year-old boy and a seventy-five-year-old man are confronted with identical fighting words….
I’m pleased to say that the criminal charges against Aaron Walker, arising from his blogging about Brett Kimberlin, have been dropped by the prosecutors, as the Maryland criminal court records system (sorry, no direct link, but you can search) confirms.
I’m continuing to consult with Walker and his lawyer on getting a reversal of the “peace order” that appears to ban Walker from blogging more about Kimberlin. [...]
That’s what a Pennsylvania bill, unanimously passed last Fall by the state Senate and referred to the House — titled “cyberbullying by minors” — would provide:
A minor [i.e., an under-18-year-old] commits a misdemeanor of the third degree if:
(1) the minor knowingly transmits or disseminates any electronic communication, including a visual depiction of himself or any other person in a state of nudity, to another minor with the knowledge or intent that the communication would coerce, intimidate, torment, harass or otherwise cause emotional distress to the other minor; or
(2) the minor does any of the following involving another minor:
(i) photographs, videotapes, depicts on a computer or films the other minor in a state of nudity without the person’s knowledge or consent; or
(ii) transmits, distributes, publishes or disseminates a visual depiction of the other minor in a state of nudity where the minor depicted has not given consent or has withdrawn consent for the dissemination….
(c) Definitions…. “Disseminate.” To cause or make an electronic communication from one person, place or electronic communication device to two or more persons, places or electronic communication devices.
“Electronic Communication.” Any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo-optical system, except … [a]ny wire or oral communication….
“Transmit.” To cause or make an electronic communication from one person, place or electronic communication device to only one other person, place or electronic communication device….
Part of the provision is a narrow ban on nonconsensual dissemination of images of nudity (or, oddly enough, of clothed images if they depict an erection). But that’s just “includ[ed].” The bill, which after all seems to be aimed at “cyberbullying” and not just sexting, would more generally ban [...]
I’m pleased to say that I’ll be consulting with Aaron Walker’s defense lawyer in the case I discussed last week, in which a Maryland judge issued a “peace order” — in other states, generally called a “restraining order” — that the judge seemed to interpret as limiting Aaron Walker’s blogging about Brett Kimberlin. (See, e.g., this audio recording, starting at 46:01.)
I should note that I was approached to participate in this case only after my earlier post on the subject, which was written in my capacity as a blogger and an academic who is writing about such questions, not a lawyer. Naturally, if I blog further about this case in the future, I will note my participation in it as a lawyer.
UPDATE: Whoops, sorry, meant to say this, but forgot until a commenter reminded me — I’m participating in the case without pay. [...]
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
I’ve been hearing a lot about the latest phase of this controversy, but it’s still hard for me to figure out what is going on. A Maryland court has issued a “peace order” — basically, what most states call a restraining order — against blogger Aaron Walker, ordering him not to “harass” or contact Brett Kimberlin, a convicted bomber who is now a political activist. The order begins with a “finding”
That there is clear and convincing evidence that within 30 days before the filing of the Petition, [Walker] committed the following act(s):
Placed [Kimberlin] in fear of imminent serious bodily harm: COUNTLESS NUMBER OF BLOGS EITHER THREATENING DEATH [sic]
This seem like a finding that is both hard to understand and — from what I’ve heard about the story — hard to support, if it means that Walker had threatened Kimberlin with death. [UPDATE: Hans Bader (Open Market), who criticizes the injunction, suggests that it means that Walker's posts didn't themselves contain unprotected threats, but prompted some readers to threaten Kimberlin; but that would not be a proper basis for the court's enjoining or otherwise acting against Walker, at least unless there is evidence that Walker intentionally solicited such threats, or intentionally incited likely imminent threats, and I haven't heard of such evidence.] Based on this finding, the order bars Walker from injuring or threatening Kimberlin (which would be illegal in any event), contacting or trying to contact Kimberlin, “harass[ing]” Kimberlin, and entering and perhaps approaching very near to Kimberlin’s residence and place of employment. The order may well be factually unfounded, but if it were factually well-founded, and if “harass” were limited to telephone calls, e-mails, and the like to Kimberlin personally, then it would likely be constitutionally permissible. (See generally Rowan v. United [...]
I’m writing an article that indirectly touches on this question, and I thought I’d ask our readers for their take on it. I’d particularly like to hear from people who are knowledgeable about privacy law, and who (unlike me) support information privacy speech restrictions, such as the disclosure-of-private-facts tort.
Minnesota has an interesting statute that allows courts to enjoin speech that “ha[s] a substantial adverse effect … on the … privacy” of a person, Minn. Stat. Ann. § 609.748. Five months ago it was used to issue an injunction banning online speech by a person about his ex-girlfriend, Johnson v. Arlotta (2011), but it has been used before as well.
I’m curious what people think of this — again, especially people who generally support the disclosure tort — given the lack of a statutory or judicial definition of what constitutes “privacy” for purposes of the statute, and the criminal penalties for violating the order. How should the statute be read, and is it constitutional? Should “privacy” be read as tortious invasion of privacy, with all the common-law twists on that (e.g., the exception for newsworthy speech, and the requirement that the speech be said to the public and not just as gossip within a circle of friends)? Is that sufficiently clear for an order that can be enforced through criminal penalties? Also, are temporary restraining orders under the statute — which may be issued ex parte — unconstitutional prior restraints?
Here’s the relevant excerpt:
(a) “Harassment” includes:
(1) a single incident of physical or sexual assault or repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between
A pleasant story of the law being fixed as a result of public criticism — much of it online — just as in Arizona last month:
Last year, the Tennessee Legislature enacted a statute that essentially banned the online posting of images that cause “emotional distress” “without legitimate purpose.” As I blogged on June 6, the law made it a crime to
(4) Communicate with another person or transmits or displays an image in a manner in which there is a reasonable expectation that the image will be viewed by the victim by [by telephone, in writing or by electronic communication] without legitimate purpose:
(A) (i) With the malicious intent to frighten, intimidate or cause emotional distress; or
(ii) In a manner the defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and
(B) As the result of the communication, the person is frightened, intimidated or emotionally distressed.
The law therefore applied not just to one-to-one communication, but to people’s posting images on their own Facebook pages, on their Web sites, and in other places if (1) they were acting “without legitimate purpose,” (2) they caused emotional distress, and (3) they intended to cause emotional distress or knew or reasonably should have known that their action would cause emotional distress to a similarly situated person of reasonable sensibilities. So,
- If you had posted a picture of someone in an embarrassing situation — not at all limited to, say, sexually themed pictures or illegally taken pictures — you’d likely have been a criminal unless the prosecutor, judge, or jury concludes that you had a “legitimate purpose.”
- Likewise, if you had posted an image intended to distress some religious, political, ethnic, racial, etc. group, you too could have
Minnesota law defines “harassment” to include,
repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target.
If someone complains about “harassment,” a court can issue an order banning such “harassment,” and violation of the order will then be a crime. Given this, what are you free to say about other people in Minnesota, assuming you want to say it several times, and they’re willing to go to court to stop you?
Say that you have been (accurately) telling your and your ex’s acquaintances that your ex cheated on you, or infected you with a sexually transmitted disease — is that a “repeated incident of intrusive or wanted … words … that ha[s] a substantial adverse effect on the [ex's] privacy”? What if you tell people that someone holds some publicly condemned religious or political beliefs that he has tried hard to conceal? The list could go on.
Note that there’s nothing in the statute that purports to limit this to speech that is a tortious disclosure of private facts, though that tort is itself constitutionally questionable, both on overbreadth grounds and vagueness grounds (given the lack of clear definition of the “newsworthiness” exception to the tort, an exception that does not appear in the statute). [...]
“Emotional distress” means significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling….
“To engage in a course of conduct” means directly or indirectly, or through one or more third persons, in person or by any means, on 2 or more occasions, to:
(A) Follow, monitor, place under surveillance, threaten, or communicate to or about another individual;
(B) Interfere with, damage, take, or unlawfully enter an individual’s real or personal property or threaten or attempt to do so; or
(C) Use another individual’s personal identifying information [defined to include a person's name]….
(a) It is [a crime] for a person to purposefully engage in a course of conduct directed at a specific individual [to intentionally, knowingly, or negligently] cause that individual to … [s]uffer emotional distress….
(b) This section does not apply to constitutionally protected activity.
So if you twice say something about someone, where a reasonable person should have known that this would cause the subject “significant mental suffering or distress,” you’re guilty of a misdemeanor — or a felony if the subject is under 18, and you are four or more years older than the subject — unless the court finds your speech to be “constitutionally protected activity.”
But what is constitutionally protected activity? For instance, is telling some friends about an acquaintance’s medical history or sex life constitutionally protected? The Court has had no occasion to decide this, partly because such private revelation is usually not even tortious under state law (in most states, the “disclosure of private facts” tort only covers speech to the public at large, or under circumstances where it’s likely [...]
1. Definitions. As used in this section, the following words and terms shall have the following meanings:
(a) ["]Anonymous poster["] is any individual who posts a message on a web site including social networks, blogs forums, message boards or any other discussion site where people can hold conversations in the form of posted messages.
(b) “Web site administrator” means any person or entity that is responsible for maintaining a web site or managing the content or development of information provided on a web site including social networks, blogs forums, message boards or any other discussion site where people can hold conversations in the form of posted messages, accessible via a network such as the internet or a private local area network.
2. A web site administrator upon request shall remove any comments posted on his or her web site by an anonymous poster unless such anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate. All web site administrators shall have a contact number or e-mail address posted for such removal requests, clearly visible in any sections where comments are posted.
It’s not clear what it means to “confirm” that one’s IP address, legal name, and home address are accurate; but at the very least, this bill would require a Web site administrator — me, for instance, if I were found to subject to New York jurisdiction — to remove any comment unless the commenter signs his name to it.
Nor would this be limited to comments that allegedly libel someone, or even insult someone (though that [...]
The Arizona cyber-harassment bill, which I blogged about March 31, has now been narrowed in the Arizona Legislature. The original proposal — which had been passed in nearly identical forms by both houses of the Arizona Legislature — read,
It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use a
telephoneand use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.
This, as I argued, would have posed serious First Amendment problems. Telephones are basically one-to-one devices, so a phone call that uses profane language to offend is likely meant only to offend the one recipient, rather than to persuade or inform anyone; but computers used to post Facebook messages or send Twitter messages or post blog items can offend some listeners while persuading and informing others.
So, under the proposal, posting a comment to a newspaper article — or a blog — saying that the article or post author is “fucking out of line” would have been a crime: It’s said with intent to offend, it uses an electronic or digital device, and it uses what likely will be seen as profane language (see, e.g., City of Columbia Falls v. Bennett (Mont. 1991)). Likewise if a blog poster were to post the same in response to a commenter’s comment. Likewise if someone posts something in response to an e-mail on an e-mail-based discussion list, or in a chatroom, or wherever else. (Note that if “profane” is read to mean not vulgarly insulting, but instead religiously offensive, see City of Bellevue v. Lorang (Wash. 2000), then the statute would have been unconstitutional as well.)
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) [...]