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Telephone/E-mail Harassment Law and Government Officials:

Traditional telephone harassment laws -- for instance, ones that ban calls (sometimes limited to anonymous calls and sometimes not) that are intended "to annoy, abuse, threaten, or harass any person at the called number" -- are generally thought to be constitutional. As to threatening calls, the First Amendment rationale is clear; they fall within the true threats exception. Likewise, if the law were limited to calls that are annoying for non-content-related reasons (e.g., they're placed at 3 a.m., or they happen twenty times over twenty minutes), it would be justified as a content-neutral restrictions.

But as to "annoy[ing]," "abus[ive]," or "harass[ing]" calls, the rationale is less obvious. The law restricts speech because of its content; the speech doesn't fit within any of the well-established exceptions; and even anonymous speech is usually constitutionally protected. In my view, the best justification for the restriction is that "One-to-one speech that's intended to annoy the one recipient is rarely of very much First Amendment value; people are just rarely persuaded or enlightened by speech that's intended to annoy them. It has some value ..., but to the extent that it's in some measure deterred, the loss to public debate isn't that great -- speakers are still free to speak to others besides the person they're trying to annoy." And the same justification also extends to similar restrictions on harassing e-mail, which have recently sprung up. Yet we should recognize that the First Amendment issue is not entirely clear.

And the question is particularly unclear when the annoying speech is related to public debate, and especially when it's conveyed to public officials. In 1999, the D.C. Circuit set aside a harassment conviction of Ion Popa, who made several racist calls to the U.S. Attorney for the District of Columbia (the chief federal prosecutor in the District); and the court seemed to suggest that speech "intend[ed] in part to communicate a political message" must be exempted from telephone harassment law. (Query, by the way, whether the same would apply to speech intended to communicate a religious message, a message on social issues, and the like.)

In any case, a similar question has just arisen in Washington state:

The Jan. 8 e-mail message, sent by "battleground anonymous" to members of the Battle Ground City Council, was a racist rant about Paul Zandamela, a black man who had been sworn in as a city councilman the previous evening.

"Our city government must be corrupt to have this (derogatory term) as an elected official," read the message in part. The message included four slurs and was signed, "Sincerely, a (derogatory term) hater."

That message and a subsequent note were traced to Christopher Reinhold, the son of Alex Reinhold, Battle Ground's deputy mayor ....

[Mayor Mike] Ciraulo received a second message that called him a "stupid (derogatory term) lover." ...

Reinhold is now being prosecuted for alleged "cyberstalking" based on his e-mail to Zandamela and Ciraulo (not his messages to other council members about Zandamela).

Please keep in mind, by the way, that telephone/e-mail harassment laws are very different from "hostile environment" harassment laws, and thus require different First Amendment analyses.

John (mail):
Repeated annoying phone calls are not just speech; they impact property rights in my telephone usage (when I'm dealing with a jerk, I can't receive or make other calls), not to mention the physical effort I have to put into walking across the room to answer the damned call. Minor impacts individually, to be sure, but cumulatively not trivial--that's after all what led to these laws, for if it were trivial we wouldn't need any protection.
5.1.2008 3:25pm
John (mail):
Repeated annoying phone calls are not just speech; they impact property rights in my telephone usage (when I'm dealing with a jerk, I can't receive or make other calls), not to mention the physical effort I have to put into walking across the room to answer the damned call. Minor impacts individually, to be sure, but cumulatively not trivial--that's after all what led to these laws, for if it were trivial we wouldn't need any protection.
5.1.2008 3:25pm
John (mail):
Please forgive my repeated annoying comment.
5.1.2008 3:26pm
Smokey:
How do we define exactly what is an 'annoying' call?

The obvious solution is to get Big Government involved. We need an Annoyance Czar running a Department of Annoyance, with the requisite number of unaccountable bureaucrats.
5.1.2008 3:39pm
Fub:
Reinhold is now being prosecuted for alleged "cyberstalking" based on his e-mail to Zandamela and Ciraulo (not his messages to other council members about Zandamela).


Quick google yields these elements (definitely not the best source but it was quick) of WA cyberstalking:

Sec. 1. A new section is added to chapter 9.61 RCW to read as follows:

(1) A person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication to such other person or a third party:

(a) Using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act;

(b) Anonymously or repeatedly whether or not conversation occurs; or

(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household.


The messages quoted here don't seem to contain any language with "lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act".

Unless "(derogatory term) lover" is held to "suggest a lewd or lacivious act".
5.1.2008 3:42pm
PatHMV (mail) (www):
What John said. You have a right to speak. You have no right to enter my property and bang on my door until I answer. (And yes, I know the case which held that the local government couldn't bar door-to-door solicitations, but that doesn't bar me from putting "Posted, no solicitations" signs on my front gate and having the state prosecute anyone who violates it.)

I should have an absolute right to tell forbid someone from calling my phone, or from sending correspondence to my house or computer, because by doing so, that person is infringing upon me, not just speaking to the public. I would be happy to impose a notice requirement again to the general requirement that a property owner put up "posted" signs to be able to bring criminal charges against trespassers.
5.1.2008 3:47pm
PatHMV (mail) (www):
Were the calls from Ion Popa made to the U.S. Attorney's home or to his office?
5.1.2008 3:48pm
Crackmonkeyjr (www):
I'm pretty sure that, at least in NY, the call has to have no legitimate purpose. I think this passes constitutional muster because its the act of calling, and not what is said during the call, that constitutes harassment. Under the "Bong Hits for Jesus" case, this could even extend to the "content" of the call, if the content has no actual message.
5.1.2008 3:57pm
wfjag:
While I agree with John, the facts stated don't look like there were "repeated" calls:
1. There was 1 e-mail to one City Counsel member and 2 to another;
2. The e-mails concerned an official matter (election of a City Counsel member) and so was not a private communication or to a private e-mail address, as to which the people receiving the e-mails have reasonable privacy expectations;
3. Although offensive and taking a position prohibited by the 13th Amendment, the US does not prohibit "hate speech" except in very limited circumstances. The US isn't Germany where saying Hitler was just misunderstood or Canada in which non-PC positions are criminal offenses*;
4. No threat, explicit or implicit, was made against anyone, or even inciting violence by someone else; and,
5. Although the Wash. statute prohibits electronic communications made "Anonymously", and while the sender didn't use his name, any e-mail to a public agency can quickly be traced back to the original e-mail source (unless steps were taken to disguise that source -- which apparently wasn't done here). Accordingly, there's a definitional problem with relying on the "Anonymously" provision.

While I disapprove of the message, I fear giving much power to the government to prosecute whenever gov't officials are merely P.O.ed at someone. Unfortunately, the City Counsel and its members may have given the jerk a cause of action under 42 USC 1983 -- something the City Attorney should have considered.

*Someone told me that in France, praising American wines as superior to French wines is an offense. Any truth to that or is that an Urban Legend?
5.1.2008 4:43pm
Bama 1L:
Someone told me that in France, praising American wines as superior to French wines is an offense. Any truth to that or is that an Urban Legend?

Myth, although you won't make many friends by making such claims. But you will find California wines sold in France.

Perhaps your informant meant to say that referring to wine by a geographic designation when the wine is not, in fact, from that region can get you in legal trouble. Thus no "California Bordeaux" or "New York Champagne."
5.1.2008 5:41pm
Gary McGath (www):
I've been a target of cyberstalking, which included death threats and attempts to flood my mailbox with sheer quantity, and know how frightening the real thing can be. But I also know how the charge can be used to punish valid speech.

If the government officials received no more than two messages apiece and they contained no overt threats, that isn't stalking by any stretch of the imagination.
5.1.2008 5:46pm
Nathan_M (mail):
The Washington cyberstalking statute is disturbingly broad. First, there's no requirement in the Act that a person actual be "harass[ed], intimidate[d], torment[ed], or embarrass[ed]," only that the person sending the message intend that.

So if I were to say "wfjag's post shows that he knows nothing about Canadian hate crime law, he should be embarrassed about spouting off about something he knows nothing about" (sorry wfjag, you're just a convenient example) I think I would have committed the offence of cyberstalking if I lived in Washington state. I have made an electronic communication to a third party with intent to embarrasses intent to embarrasses someone, satisfying (1), and I have done so anonymously satisfying (b). Even if I wasn't anonymous, I could violate the statute by say, for example "wfjag is a fucking idiot, he shouldn't talk about Canadian hate crimes laws he knows nothing about." That would put me under paragraph (a) for using a lewd, indecent, or obscene word.

I can't see how there could be any doubt that either of those statements ought to be protected by the First Amendment.

I find it troubling that the statute punishes speech based merely on the intent of the speaker, and regardless of whether or not it actually bothers anyone. Punishing speech that is merely intending to be embarrassing is troubling too.

I also find it troubling that it only stakes a single incident for speech to fall under the statute. You don't "stalk" someone with a single communication, however much it embarrasses or torments them. I can see why threatening someone, even once, ought to be prohibited, but this punishes much more than that. I can't imagine it's illegal to yell swears at someone in Washington state in an argument, why should it suddenly be punished if you send an email instead?

On a side note, a related Washington statute uses "their" instead of "his or her". Is this usage comment now in statutes? I have never seen it before.
5.1.2008 5:49pm
ratel (mail):
I see two potential problems with laws against making annoying telephone calls to government officials.

First, the term "annoying" may be unconstitutionally vague.

Second, I have a right to petition the government for redress of my grievances. There is no requirement that my grievances be rational, they only need to be grievances.
5.1.2008 5:52pm
Roscoe B. Means:
I've noticed that statutes of this ilk sometime contain a provision saying that they can't be applied to activity protected by the state or federal constitution. I've never done the research to ascertain whether those provisions are sufficient to stave off a facial overbreadth argument. Anyone?

That Washington statute strikes me as sweeping in a lot of protected expression. One could certainly argue that there is a constitutional right to harass, annoy and embarrass a public official with communications to his or her office, or to an email address, about a matter of public concern. Isn't that just lawful lobbying? The term "intimidate" could also be construed to include such things as "threatening" that the official won't be re-elected, or will lose political support. Since physical threats and death seemed to be covered specifically in later parts of the statute, I would think that "intimidate" in the intro means something broader.
5.1.2008 6:34pm
wfjag:

So if I were to say "wfjag's post shows that he knows nothing about Canadian hate crime law, he should be embarrassed about spouting off about something he knows nothing about" (sorry wfjag, you're just a convenient example) I think I would have committed the offence of cyberstalking if I lived in Washington state.

Nathan, since I don't know much about the Canadian hate crime law (other than what I've read at VC, Overlawyered and a few other sites), you're statement isn't wholly inaccurate.

Leading to another issue about the statute -- is the truth a defense when there is an objective basis for believing that the statement was true? Alternatively, must the gov't prove that the statement is objectively untrue (or does it criminalize e-mails asserting annoying truths)?


Even if I wasn't anonymous, I could violate the statute by say, for example "wfjag is a fucking idiot, he shouldn't talk about Canadian hate crimes laws he knows nothing about."


I'm sure you could find people who concur with the first part of the statement without any qualification as to knowledge of Canadian law (I've gone through a divorce after all). So, would it be a defense to assert that the statement in the communication that brought about the cyberstalking prosecution was founded upon a subjectively reasonably supportable opinion or reputation? (i.e., is it lewd, indecent, or obscene if there are reasonable grounds to believe it is true?). Alternatively, must the gov't prove that the sender had no subjectively reasonable basis for the statement (or does it criminalize emails asserting annoying opinions, however reasonable?).

Bama -- Thanks for the clarification. That may be what was meant. My knowledge of French wines almost rivals my knowledge of the Canadian hate crimes laws. I did, however, read a book entitled "The Wines of War", which was about how during WWII the French hid the good wines and Champagnes, rebottled the crap in bottles labeled as the good stuff, and sold that to the Germans. Because successful ideas tend to be repeated, I stick to domestic wines.
5.1.2008 6:51pm
Nathan_M (mail):

Leading to another issue about the statute -- is the truth a defense when there is an objective basis for believing that the statement was true? Alternatively, must the gov't prove that the statement is objectively untrue (or does it criminalize e-mails asserting annoying truths)?

There's nothing in the statute that would make truth a defence. Of course, it's conceivable that the Washington courts have read that requirement into the law.
5.1.2008 7:06pm
NI:

The obvious solution is to get Big Government involved. We need an Annoyance Czar running a Department of Annoyance, with the requisite number of unaccountable bureaucrats.


Smokey, you seem to be forgetting that almost by definition all government departments are the Department of Annoyance (though probably not in the way you meant).

In a similar vein, I once wrote the Governor of Utah offering my services when I read they were thinking of hiring a pornography czar. I said I would do my best as pornography czar to ensure that only the best quality pornography made it to store shelves in Utah. I never heard back.
5.1.2008 10:11pm
David Schwartz (mail):
Truth wouldn't/shouldn't be a defense. Suppose I discover that someone cheated on their wife. This shouldn't mean I can all him at 3AM just to tell him that I know that he cheated on his wife.

I do agree, though, that "annoy" is a poor standard. In cases like those cited, as-applied challenges to the consitutionality are entirely appropriate.
5.1.2008 11:51pm
Larry Fafarman (mail) (www):
PatHMV said (5.1.2008 2:47pm) --
I should have an absolute right to tell forbid someone from calling my phone, or from sending correspondence to my house or computer, because by doing so, that person is infringing upon me, not just speaking to the public.

Wrong -- if the emails are non-commercial, there is no way you can legally stop them (unless they threaten bodily harm or something like that). The CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act) requires bulk emailers to comply with addressees' delisting requests only when the emails are commercial. For more details, see this article on my blog, which says,

IMO you should not delist addressees when those addressees should be getting the emails because the emails are specifically about them, their organizations, or their occupations. Just ignore their requests to be delisted. If they are rude enough to ask to be delisted even though your emails directly concern them, then you can be rude enough to ignore their requests. And if these folks had a real spam problem, they probably would not bother to ask you to delist them if you send them emails only occasionally, since your emails would be lost in a flood of spam. And if they don't care what others may be reading about them or their organizations, then the hell with them. And these very same people who ask you to stop sending them emails usually expect you to read their emails -- I know their kind. Also, if your list is not automated, delisting addressees can be a lot of extra work for you -- the addressees have to be removed by hand from a list that might be non-alphabetical and if the list exists only in your emails then the delisting can be done only when you send out emails. However, as a courtesy to the addressees, you should do the following: (1) use the same sender address when sending emails to the group and (2) use descriptive subject lines -- make the subject line as specific as possible within the space allowed.

The trolls are now going to say, "Larry, you stupid fathead, just because something is not illegal does not necessarily mean that it is not unethical or discourteous." Thank you, trolls, I cannot think of a better argument against arbitrary censorship of visitors' comments on blogs. And IMO arbitrary censorship of blog comments is an infinitely worse offense than ignoring a request to be removed from a bulk emailing list.
5.2.2008 1:43am
Roger Schlafly (www):
How are these emails any worse than the spam that everybody gets every day?
5.2.2008 3:09am
Larry Fafarman (mail) (www):
Roger Schlafly said,
How are these emails any worse than the spam that everybody gets every day?

Exactly! It's a non-problem if the sending addresses are consistent and the subject lines are descriptive. It takes just an instant to delete an unwanted email. Also, if the sending addresses are consistent, then emails with the same sending addresses can (1) be blocked by spam filters or (2) sometimes separated out for inspection, depending on the software of the Internet Service Provider. People who I rarely send emails to have complained that I was "spamming" them, even when the email subjects were of vital interest to them. An unscrupulous attorney of the Electronic Frontier Foundation, Kevin Bankston, even threatened to block my emails addressed to other EFF staffers! The Internet culture is sick, sick, sick because it tolerates this kind of bullshit.
5.2.2008 4:43am
Roger Schlafly (www):
I have seen divorce lawyers ask for and get restraining orders prohibiting spouses/parents from calling each other or sending each other email. I have then seen those same parents complain to the family court judge that they cannot even send each other essential emails about who is picking up the kid at school or who is paying a medical bill. The judge told them to find a third party who is willing to receive the email, and forward it to the other parent!

A legal solution to a non-problem can create a problem.

If you don't like the phone calls, get Caller ID or an answering machine. If you don't like the emails, get a spam filter.
5.2.2008 6:08am
Larry Fafarman (mail) (www):
Roger Schlafly said,
The judge told them to find a third party who is willing to receive the email, and forward it to the other parent!

The email could be sent from a different email address. My AOL account allows me up to seven email addresses ( screenname@aol.com ) and they can be changed. Also, an email forwarding service could be used.
5.2.2008 8:18am
Roger Schlafly (www):
Using a different email address, or some other automated workaround, would violate the restraining. The offending parent could be arrested and jailed. You might think that the cops and courts would ignore such trivial infractions, but they expend a lot of effort prosecuting regular people for such trivial stuff.
5.2.2008 1:54pm