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More on One-to-One Speech vs. One-to-Many Speech:

Ten years ago, it turns out, one of my law review articles discussed the problem with applying telephone harassment laws (or even harassment laws that govern one-to-one annoying e-mail) to one-to-many speech. That article pointed out that e-mail harassment laws might punish one-to-many speech posted to e-mail discussion lists; but the analysis equally applies to the recently enacted change to the federal harassment law, which would punish one-to-many speech posted on Web sites.

The bottom line is that, even if it's OK to punish speech that's likely to be annoying and offensive to its sole listener -- on the theory that such speech is unlikely to enlighten or edify, and likely only to annoy -- such restrictions shouldn't be extended to speech that has many listeners, many of whom might find the speech valuable even though it's annoying (perhaps deliberately so) to some other listeners.

Brett Bellmore (mail):
It's a pity the Constitution doesn't provide some kind of bright line instruction on this subject, such as, (hypothetically), declaring that Congress "shall make no law" restricting freedom of speech.
1.10.2006 5:15pm
John Jenkins (mail):
Given that, in the founding era, there were a number of restrictions on speech (libel &slander to start with) that were not presumed overriden by the Constitution, that premise is shot all to hell at the outset. (Of course, one can argue that the First Amendment, as the ONLY ONE specifically addressed to the Congress did not restrict the states, but that's moot at this point).
1.10.2006 6:04pm
Donald (www):
But does this statute really differ significantly from many states' disorderly conduct statutes? Many states define that crime with respect to causing "annoyance" or "inconvenience." The new law just seems like a federal "DC-internet" law.
1.10.2006 6:12pm
M. Simon (mail) (www):
I hope this does not mean an end to usenet and blog flame wars.

As a veteran I would sorely miss them.
1.10.2006 7:57pm
Wintermute (www):
Have to look at time, place, manner on this, methinks, as well as how relevant anonymity is to annoyance. E.g., you comment on my blog to the effect that I am selfish or ignorant. Hey, I know that sounds unbelievable, but it's happened! LMAO. One was anonymous, the other not. First of all, the anonymity vel non does not create a differential in my (mild) annoyance LOL. So how rational is that statutory element? If it's on my blog, I can nuke it, tolerate it and perhaps respond, or ban anonymous comments. On someone else's, I can gripe and ask for but perhaps not achieve deletion or banning or, in the alternative, my remedy is more speech of my own. Phone calls to my house in the middle of the night are a different matter. Repeated email bombing is not as bad and can be filtered.

One reason I use a pseudonym is to avoid being stalked myself! A subpoena will get the goods on me, but a pure nut is not gonna get that so easily. I out myself regularly in email to responsible communicants online, NP; and Orin can attest to that. I probably should use my real name so as to get credit for my brilliant comments, but a nick is a habit from long experience on the Net in many modalities and is a practice with more utility than danger, IMHO and that of very many others.

I really think this legislation was a "Let's get out of here for Xmas, I haven't read the bill but the caption will mollify the women voters" thing that should have acknowledged the gloss Orin says one Circuit put on the pre-existing statute and should have clarified that the manner being regulated was nuisance phone calls. As it is, I don't think the story is as dead as Hotline has proclaimed; and Congress should be prodded to do a better job on this.

A huge red flag went up for me years ago when "offending" someone became a sin; and I just noted that a female contributor to the American Prospect blog has applauded the most expansive view of this new statute because, evidently, someone detracted from her peace of mind through computer communications of some kind. I am concerned that our "mature" society is beginning to resemble those of Europe that have far wider criminal speech restrictions than we formerly would have thought conceivable in these United States.

P.S. It is not my criminal intent to "annoy" anyone with this anonymous (pseudonymous) post.
1.10.2006 9:31pm
charles (mail) (www):
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1.11.2006 4:24am
matt:
Was the original version of the statute ever tested in a party-line context? Any such cases would likely reach one-to-many "annoyance speech" issues, though it would not exactly be analogous to web sites or even email.
1.11.2006 12:00pm
Steve Plunk (mail):
Many seem to missing the point that anonymous speech such as described inhibits the free speech of others.

Practical experience shows us that these people (trolls, flamers, etc.) use their anonimity to shout down dissenting views without the accompanying responsibility for what is said.

So the choice is who's speech do we protect? The person who stands behind the words or the person who hides in the shadows?

The statute picks a side and does so reasonably.
1.11.2006 1:24pm
Ryan Waxx (mail):
I don't think "One-to-many" is actually the substantive issue here.

Consider a harassing, anonymous telephone call. The call itself is a demand for attention... and arguably a form of intrusion on your property. Some intrusions are ok... like a neighbor stopping by to ask to borrow flour. Some are not... like someone breathing heavily and inquiring about your state of undress.

On the other hand, a blog is not an intrusion on your property. In fact, it could be said to take place on the harasser's property. If you don't want to listen to the jerk, you don't have to go visit his house. As for the effect on others, that's analogous to ugly gossip. You don't have a 'right' not to be gossiped about, save for the narrow exceptions of slanderous speech.

I think this is why people don't like this law if indeed it applies to bloggers, not some obscure 'one-to-many' theory that most people don't ever consciously consider.
1.11.2006 8:19pm
Ryan Waxx (mail):
Bejing, China:

Chairman Mao: Anonymous speech against the government inhibits the free speech of others to express their love for their fellow man.

Practical experience shows us that these people (dissidents, anarchists, the mentally ill) use their anonimity to shout down dissenting views and spread lies. They do not take the accompanying responsibility for what is said.

So the choice is who's speech do we protect? The person who stands behind his words or the person who hides in the shadows, undermining the party?

Our laws pick a side and do so reasonably.
1.11.2006 8:25pm
Richard Bennett (www):
Not so fast, Volokh. While it may be very interesting to speculate about whether one-to-one laws should apply to one-to-many scenarios, you haven't established that the amendments to the TCA actually apply in one-to-many scenarios as you evidently assume.

It's reasonably certain that the intent of Congress was simply to extend the anti-harassment provisions of the TCA to VoIP, and if they over-stepped they did so inadvertently. So instead of fueling Declan McCullagh's paranoia, why don't you slow down and read the law and the precedents and see what the import of this law actually is.

Most people of background who've read it understand that it's still confined to one-to-one communication, not to web publishing. You might ask yourself why you're so far out on a limb on this subject.
1.12.2006 10:42pm