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.
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.
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".
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.
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?
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."
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.
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.
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.
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.
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)?
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.
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.
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.
I do agree, though, that "annoy" is a poor standard. In cases like those cited, as-applied challenges to the consitutionality are entirely appropriate.
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,
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.
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.
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.