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The Crime of Severe, Repeated, and Hostile Communication with the Intent to Cause Substantial Emotional Distress?

That's what a proposed federal statute -- the Megan Meier Cyberbullying Prevention Act, HR 6123, introduced two weeks ago by Reps. Linda Sanchez (D-CA) and Kenny Hulshof (R-MO) -- would create:

Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means ["including email, instant messaging, blogs, websites, telephones, and text messages"] to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.

Wow. So if I harshly criticize Reps. Sanchez and Hulshof ("hostile") at least twice ("repeated") in a way that a jury finds "severe," whatever that exactly means, and if I do that "with the intent to ... cause substantial emotional distress," I could go to prison for up to two years. My criticism could be perfectly accurate. It could be an expression of my opinion, including on political, social, or religious issues. The desire to cause substantial emotional distress could be prompted by the target's reprehensible actions or political views, and could be coupled with a genuine attempt to persuade the public. Doesn't matter: My actions would be a crime.

This is clearly unconstitutional. In Hustler v. Falwell, the Supreme Court held that even civil liability for "outrageous" (not just "severe") behavior that recklessly, knowingly, or purposefully causes "severe emotional distress" (not just "substantial emotional distress") violates the First Amendment when it's about a public figure and on a matter of public concern. Many, though not all, lower courts have held the same whenever the statement is on a matter of public concern, even about a private figure.

I would go further and reject the emotional distress tort altogether whenever it's premised on the content of speech that falls outside an existing exception, i.e., speech that isn't threatening, factually false, or the like. But in any case even the specific holding in Hustler is enough to make the statute facially overbroad. (Given the Hustler reasoning, the requirement that the speech be electronic, repeated, or intended to cause substantial distress doesn't adequately narrow the law: "[I]n the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment.... [E]ven when a speaker or writer is motivated by hatred or ill will his expression was protected by the First Amendment....")

Existing telephone harassment laws have their problems in some cases, but at least they limit themselves to one-to-one speech to the person who is being "harassed," and don't interfere with the speaker's ability to communicate with willing listeners in the public at large. This law has no such limitation. Its reference to blogs and websites strongly suggests that it deliberately addresses one-to-many publishing media as well as one-to-one email and text messaging -- but even without that reference, it would literally cover any "communication," with no limitation that the communication be sent specifically to the distressed person. Appalling.

RainerK:
Oh, for crying out loud. I thought only state legislators could be that stupid. (strike one: intentional causing distress in the service of truthfulness) Where is this anecdotal lawmaking nonsense going to end? When will sanity prevail again?
6.5.2008 4:54pm
FWB (mail):
Anyone know from where I can purchase a bubble house? It's fast becoming time to lock us each in a protective bubble so we can't interact. Interaction leads to consequences, good and/or bad. By simply eliminating all interactions, the government can make us all safe and cozy.

Any islands for sale?

Help?
6.5.2008 4:54pm
ithaqua (mail):
Bad cases make bad law, and Megan Meier's is particularly ghastly. People want there to be a law against driving other people to suicide, even if there's nothing wrong with it from a libertarian point of view.
6.5.2008 4:59pm
whit:
let me get this straight

lawmakers pass kneejerk, ill-advised, unconstitutional, nanny-state legislation in order to "protect the children."

wow. that's really shocking. :l
6.5.2008 5:12pm
Splunge:
People want there to be a law against driving other people to suicide, even if there's nothing wrong with it from a libertarian point of view.

And so there will be, the people being sovereign, and libertarian points of view being very much in the minority among voting citizens.

Professor Volt could do more service to his own principles by recognizing the inevitable, and counseling on how the statue could be written to accomplish the will of the people while doing as little damage to what everyone recognizes should be protected FA speech.

Seems to me that the key question in a judicial challenge to this statute would turn on what is meant by this phrase: 'communication' means the electronic transmission, between or among points specified by the user, of blah blah blah. (emphasis mine).

Now what are "points"? Let us assume IP addresses or individual e-mail accounts. What does it mean to "specify" them? An interpretation within the obvious spirit of the law is to give them explicitly, one by one, and not by a general rule, e.g. "all e-mail addresses in the hotmail.com domain, or all IP addresses that can establish HTTP connections to my Web server."

That would clearly mean the law does not apply to "one to many" broadcast communications, such as blog posts, or e-mail spam mass-mailings, but only to "one-to-one" or perhaps "one-to-few" communication where the communicator specifies exactly the list of recipients. A tricky question would be whether posting to a listserv, where you know some but not all of the recipients, counts.
6.5.2008 5:21pm
Sarcastro (www):
zOMG! This will only be used against conservatives! First this, then the fairness doctrine, then camps for good neocons!

NEVER AGAIN!
6.5.2008 5:22pm
GA (mail):
Well, add an element of falsity and/or intent to deceive. Does that save the statute?

This proposal may be overbroad and ill-advised but internet harassment is a real problem and is not well-handled under exiting law.
6.5.2008 5:24pm
Hans Bader (mail) (www):
I agree that this is unconstitutional, but it's not entirely unique, conceptually.

For example, workplace harassment law is based on the notion that the government can get away with banning speech, and allow private parties to sue over speech, that is "hostile" enough to create a "hostile work environment," by pretending that the speech is more conduct than speech because of its alleged negative effects on the listener.

Typically employing illogical, question-begging, or just plain silly arguments, courts have usually upheld workplace hostile-environment regulations. That's despite the fact that (A) antidiscrimination laws do not automatically trump the First Amendment (see Boy Scouts v. Dale, 530 U.S. 640 (2000); UWM Post, Inc. v. Board of Regents, 774 F.Supp. 1163 (E.D. Wis. 1991)); (B) lawsuits over speech are logically subject to full First Amendment scrutiny (see New York Times v. Sullivan (1964) (libel suit was barred by 1st Amendment) and Hustler v. Falwell (tort suit barred) and NAACP v. Claiborne Hardware (tort suit barred)); and (C) speech is logically protected in private workplaces from governmental (as opposed to employer) restrictions. (See Korb v. Lehman (4th Cir. 1990) (government could not force private employer to fire private employee); Truax v. Raich (1916) (Supreme Court says government cannot force private employer to fire private employee); and Metro Display Advertising v. City of Victorville (holding that "private property" affords the "strongest protection" to free speech against government regulation)).

It is commonly asserted in such cases that the fact that speech creates a "hostile environment" somehow turns the speech into unprotected "conduct" or a "verbal act" (see the briefs in Aguilar v. Avis Rent-A-Car System, where 3 members of a divided California Supreme Court essentially accepted this argument in their plurality opinion).

This ill-conceived legislation is probably based on a similar idea: the wrongheaded idea that speech that causes tort-like effects (like emotional distress) somehow ceases to be speech and becomes mere verbal conduct.

But since it's not limited to politically-correct minority groups or "suspect classes," the courts probably won't engage in the silly arguments I have described above (accepted in the workplace harassment cases), and instead will strike down the law (as they typically have in cases involving overbroad hunter-harassment laws and similar statutes not dealing with judicially-favored characteristics like race, religion, sex, or sexual orientation).

I say "probably" because silly speech-is-conduct arguments occasionally do work outside the workplace harassment context, in areas like telephone harassment (but see United States v. Popa (D.C. Circuit strikes down prosecution on 1st Amendment grounds) and restraining orders under overly broad domestic-violence restraining-order laws.
6.5.2008 5:27pm
Alan Gunn (mail):
For a glimpse of what life might be like if this sort of thing catches on, look at Andrew Coyne's liveblog of the Maclean's case in B.C., at http://blog.macleans.ca
6.5.2008 5:28pm
whit:

This proposal may be overbroad and ill-advised but internet harassment is a real problem and is not well-handled under exiting law


except it's not much of a problem. you can simply DELETE emails w/o reading them if they are from a sender you dont like.

it's simply not much of a problem.

and it is addressed just fine by the good ole' restraining/protective type orders that people get when they are being continually harassed by someone.
6.5.2008 5:34pm
Ex-Fed (mail) (www):
That's like two thirds of my blog posts.
6.5.2008 5:43pm
Ex-Fed (mail) (www):
zOMG! This will only be used against conservatives! First this, then the fairness doctrine, then camps for good neocons!

NEVER AGAIN!



I don't think neocons can form specific intent.
6.5.2008 5:45pm
Suzy (mail):
I've never been quite sure why existing criminal law (at least in some states) is not sufficient to address what happened in this particular case. I thought that this woman knowingly encouraged a child, whom she knew was suicidally depressed, to kill herself. To what extent are those actions criminal right now? Surely there's some way of regulating what adults can do in the way of intentionally encouraging children to kill themselves, without passing draconian and sweeping legislation in violation of the first amendment. Any lawyers here who can clarify this? ;)
6.5.2008 5:47pm
Fub:
Eugene Volokh wrote on June 5, 2008 at 3:41pm:
Existing telephone harassment laws have their problems in some cases, but at least they limit themselves to one-to-one speech to the person who is being "harassed," and don't interfere with the speaker's ability to communicate with willing listeners in the public at large. This law has no such limitation. ...
California Penal Code Sec. 653m on telephone harassment has another limiting provision, which appears like a mantra in its first three subsections: "Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith."

I've not seen a case where CA appellate courts interpreted this provision, so I don't know whether it is an affirmative defense, or a (negative) element of the crime. But in either case, I think a similar provision would prove a difficult hurdle for defendant in any fact pattern like the Megan Meir tragedy.

At the same time, such a provision would at least partially carve out an exception for "the speaker's ability to communicate with willing listeners"

I'm not a fan of CA's statutes generally, but they seem to have gotten at least this detail in phone harassment right.
6.5.2008 5:53pm
Fub:
whit wrote at 6.5.2008 4:34pm:
except it's not much of a problem. you can simply DELETE emails w/o reading them if they are from a sender you dont like.

it's simply not much of a problem.

and it is addressed just fine by the good ole' restraining/protective type orders that people get when they are being continually harassed by someone.
Yes, and no.

Getting a restraining order requires at least identifying the restrained party. That is not always possible.

As to just deleting emails, that's what spammers always say, and I think you'd agree that wading through the deluge of junk designed to look legitimate without deleting something actually important, is prone to imperfection.

Having been on the receiving end of email harassment by flooding, as well as clear threats to well being delivered by email, I agree that in small doses it is at worst an annoyance. But get an inbox of several thousand junk emails, and a few legitimate ones, and the problem changes.

At that point one may have to choose between disabling the old email address and informing all known legitimate correspondents, or risking inadvertent loss of ham when throwing out spam.

The problem is scale. Computers can generate tons of traffic at one swell foop, making the "communication" essentially a flavor of denial of service attack.
6.5.2008 6:10pm
Mary Katherine Day-Petrano (mail):
"it's simply not much of a problem.

and it is addressed just fine by the good ole' restraining/protective type orders that people get when they are being continually harassed by someone." ---->

This is a common argument raised by several bloggers on other threads similar to this one. The problem, to reiterate most responses, is the Internet is different than tradition: on the Internet harassment and stalking can be carried out under multiple anonymous IDs, whereas traditionally a person would know the identity of his/her harasser/stalker. The fact of the inability to identify ALL anonymous IDs the harasser/stalker may be acting under, increases the threat of harm to the victim -- particularly where the victim invokes 47 U.S.C. Sec 223 and requests the anonymous ID attacker to identify him/herself, and the attacker refuses to do so. In such circumstances, the harassment/staling has all the ingredients of Hercules attacking a defenseless blind man from every conceivable angle.

When a victim cannot identify his/her harasser/stalker without complex discovery involving a time lag, there is no realistic way for a victim to achieve the protective restraining order suggested. It is, in essence, a remedy more akin to a mirage.

On another note, despite the apparent extreme dislike for the proposed law stated by Eugene "Ceasar" (that was a compliment), and/or several other posters on this blog who flock like Alfred Hitchcock's The Birds when an opportunity to harass, cyberbully, or stalk on or off line presents itself, I would personally think this law would fly if the intent element were interpreted to require a showing of true threats, incitement to violence, etc. be made as part of the government's case.

Regarding the elaborate post of Hans Bader above suggesting discrimination (especially rising to a level of harassment) should not be prosecuted under this proposed law, I would observe that HB did not cite ONE Americans With Disabilities Act case -- in certain ADA contexts, ones involving discrimination/harassment/retaliation taken against a disabled American for his/her "effective communication," it would seem there would be TWO CLASHING First Amendment rights at issue -- the victim vs. the attacker (alleging he/she possessed a First Amendment right prohibiting prosecution).
6.5.2008 6:11pm
Mary Katherine Day-Petrano (mail):
corr:
"staling" = stalking
6.5.2008 6:15pm
Mary Katherine Day-Petrano (mail):
Fub,
"California Penal Code Sec. 653m on telephone harassment has another limiting provision, which appears like a mantra in its first three subsections: 'Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith.'" ---->

Don't you think the proposed FEDERAL LAW would possibly preempt out the cited good faith exception of the CA law? (And other states' laws like it?)
6.5.2008 6:20pm
whit:
"Getting a restraining order requires at least identifying the restrained party. That is not always possible.
"

so does PROSECUTING somebody.

and again, just DELETE it.

"As to just deleting emails, that's what spammers always say, and I think you'd agree that wading through the deluge of junk designed to look legitimate without deleting something actually important, is prone to imperfection. "

and i would say block the email address the "harasser" is using. it's far more of a pain for them to keep creating new email addresses than it is for you to add one to your spamblock.

"Having been on the receiving end of email harassment by flooding, as well as clear threats to well being delivered by email, I agree that in small doses it is at worst an annoyance. But get an inbox of several thousand junk emails, and a few legitimate ones, and the problem changes. "

this isn't about junk mail. commercial stuff. that's a different issue. this is meant to address a completely different type of email, in response to the meier's incident.

"At that point one may have to choose between disabling the old email address and informing all known legitimate orrespondents, or risking inadvertent loss of ham when throwing out spam. "

again, this aint about spam. fwiw, WA state already HAS a spam statute. this is about something entirely different.


"The problem is scale. Computers can generate tons of traffic at one swell foop, making the "communication" essentially a flavor of denial of service attack."

again, not what this legislation addresses.
6.5.2008 6:21pm
Hoosier:
Like many college speech-harassment codes, this seems to depend significantly upon how the "victim" inteprets the fact, rather than on the facts themselves, to determine whether a crime has been committed.
6.5.2008 6:21pm
Dilan Esper (mail) (www):
There is an arguably unprotected aspect to the cyberbullying at issue in the Megan Meier case-- the fact that they misrepresented themselves as a teenage boy. That's a false statement of fact, and given that Ms. Meier is not a public figure, it's probably unprotected speech. A narrow law prohibiting people from impersonating another person or falsely stating their identity for the purpose of causing severe emotional distress to another person is probably constitutional.
6.5.2008 6:44pm
Wayne Jarvis:

And so there will be, the people being sovereign, and libertarian points of view being very much in the minority among voting citizens.


Well except for the tiny detail that the First Amendment doesn't concern itself with what the majority wants.
6.5.2008 6:44pm
alkali (mail):
I don't think this is very well drafted, but it probably passes constitutional muster (or could be construed to do so, or could be rewritten to do so without too much trouble).

Flagging some of the elements for purposes of discussion:

"Whoever transmits [1] in interstate or foreign commerce any [2] communication, with [3] the intent to coerce, intimidate, harass, or cause substantial emotional distress to [4] a person, using [5] electronic means [6] to support [7a] severe, [7b] repeated, and [7c] hostile behavior, shall be fined under this title or imprisoned not more than two years, or both."

A few criticisms:

[3] This is problematic in that the various alternatives set forth don't seem to correspond to the same level of misconduct. I might be "intimidated" by something that wouldn't remotely cause me "substantial economic distress." And "coerce" is too vague for my tastes: some threats are perfectly legitimate (e.g., threats to sue, to break of contractual relations, etc.) and it's far from clear what kind of threats this language is supposed to criminalize.

[6] What does it mean to "support ... behavior"? I really have no idea. (Does it contemplate that the speaker is lending support to the conduct of another person? I don't think that is the intent of the statute.)

[7a-c] Are all of these required? Why is "repeated" necessary -- why wouldn't a single outrageous act be suitable for punishment? How many times does something have to occur for it to be "repeated"? To the same person?

To be clear, statutory ambiguity is to some extent inevitable -- we don't live in a perfect world. But in general you don't want a situation where people of reasonable intelligence are obviously going to be confronted with serious problems of interpretation without any sense of how to resolve them. This is a poor effort at statutory draftsmanship.
6.5.2008 6:45pm
CheckEnclosed (mail):
This is great! Now when your former spouse makes severe and hostile requests that you make your overdue child support payments by seeking to intimidate or coerce you into doing so, or to cause you emotional distress, and sends nasty e-mails to the same effect, your have a chance of having him or her thrown into federal prison. Imagine what would happen to a nasty bill collector thrown into a federal penitentiary.

And the best part of all is that this involves federal prosecution, so AUSAs will get the cases. No risk of selective prosecution there.
6.5.2008 6:52pm
Mary Katherine Day-Petrano (mail):
"Having been on the receiving end of email harassment by flooding, as well as clear threats to well being delivered by email, I agree that in small doses it is at worst an annoyance. But get an inbox of several thousand junk emails, and a few legitimate ones, and the problem changes" ---->

You are correct: cyberharassment includes the perp signing the victim's e-mail ID up for numerous pfishing-junk e-mails to overload the victim's e-mail box:

"Often cyberbullies will sign their victims up for e-mailing and IM marketing lists, lots of them, especially to porn sites. When the victim receives thousands of e-mails from pornographers their parents usually get involved, either blaming them (assuming they have been visiting porn sites) or making them change their e-mail or IM address."
Here

There are numerous ways in which a cyberharasser can attack his/her victim, detailed on that blog. It is NOT as simple or dismissive an issue as whit makes it sound.
6.5.2008 6:57pm
Hans Bader (mail) (www):
Mary Katherine Day-Petrano asks about how cases under the Americans with Disabilities Act (ADA) implicate the First Amendment.

Offhand, I can only think of a few cases that relate to the subject of free speech versus disabilities-discrimination, the most publicized being White v. Lee, 227 F.3d 1214 (9th Cir. 2000).

On First Amendment grounds, White v. Lee refused to read the Fair Housing Act's ban on coercion broadly to ban speech against housing projects that has the effect of denying or delaying housing for disabled people by convincing local governments to delay zoning approval for those projects.

It held that the First Amendment protects such speech irrespective of whether it has the same interfering effect as unprotected conduct in interfering with the success of such housing projects.

It blocked the Clinton Administration's effort to silence critics of housing projects, based on the fact that those housing projects disproportionately would house minority or disabled people.

It also held that individual government officials who investigated citizens for such speech were individually liable and not entitled to qualified immunity.

White v. Lee was later invoked by the Ninth Circuit as precedent to block, on First Amendment grounds, a fair-housing discrimination suit against citizens for criticizing a housing project in which many minorities would live. That later case was A.H.D.C. v. City of Fresno, and it rejected the Affordable Housing Development Corporation's discrimination suit as barred by the First Amendment.

(White v. Lee involved dual-disabled people (people who were both alcohol-dependent and mentally-ill), I believe.)
6.5.2008 7:03pm
Mary Katherine Day-Petrano (mail):
Hans Bader
WROTE:
"Mary Katherine Day-Petrano asks about how cases under the Americans with Disabilities Act (ADA) implicate the First Amendment."

NO, HB, I did not "ask" how. My statement was declarative. I TOLD you how. The ADA contains an "effective communication" mandate. This is not equivalent to a "fair housing discrimination" case. The FFHA does NOT contain a statutory provision addressing "effective communication;" only Titles II and III of the ADA do that. Communication = speech = protected by the First Amendment, in most instances. The only gloss the ADA adds to the First Amendment communication constitutional right is that is be "effective."

Thus, in SOME ADA cases, a victim's First Amendment effective communication right will CLASH against the alleged First Amenbdment right of the perp-defendant.

Get it?
6.5.2008 7:13pm
Fub:
whit wrote at 6.5.2008 5:21pm:
again, this aint about spam. fwiw, WA state already HAS a spam statute. this is about something entirely different.
I didn't mean to conflate the issue of spam with email flood attacks. But they do have one characteristic in common -- your inbox fills up with tons of junk.

Yes one could block a harasser's IP or email address, but I think you underestimate the ease with which a determined harasser will change his IP or email server. Spammers aren't the only ones who do that.

Here is a fairly old FAQ on one, who has been convicted several times over the years for phone harassment and related crimes, and who changed his email address more frequently than most folks change socks.
6.5.2008 7:21pm
Mary Katherine Day-Petrano (mail):
corr:
" Amenbdment " = Amendment

But, thanks for the attempted analogy. I realize Geibler (9th Cir) interprets ADA, RA, and FFHA same, but they are not identical statutes. ADA has a little bit different scope. However, I do think the following would be the result under the ADA, except maybe/maybe not if it were a Title II ADA STATE COURT case:

"It also held that individual government officials who investigated citizens for such speech were individually liable and not entitled to qualified immunity."

Re: State Court cases, there IS the precedent of Livingston v. Guice, 4th Cir. -- Judge himself escapes liability due to absolute judicial immunity/or qualified immunity; however, public entity State Court itself does not -- and may be liable for monetary damages for acts if its immune Judge. That is, assuming (1.) judge is not sued for prospective injunctive rellief, and/or (2.) circumstances to REMOVE absolute and/or qualified immunity do not exist (noting date of decision of Tennessee v. Lane.)

I was just making the point that the ADA is a much more powerful anti-discrimination law than the ones you cited, for better or worse depending on what side of it you're on.
6.5.2008 7:21pm
Mary Katherine Day-Petrano (mail):
corr:
" acts if " = acts of
6.5.2008 7:23pm
whit:

I didn't mean to conflate the issue of spam with email flood attacks. But they do have one characteristic in common -- your inbox fills up with tons of junk.

Yes one could block a harasser's IP or email address, but I think you underestimate the ease with which a determined harasser will change his IP or email server. Spammers aren't the only ones who do that.

Here is a fairly old FAQ on one, who has been convicted several times over the years for phone harassment and related crimes, and who changed his email address more frequently than most folks change socks.



you may not mean to conflate, but that' what you did. this is not an anti-spam statute. it's something entirely different.

it's yet another attempt by the state to attempt to regulate meanness and protect people from mean people, cause like... mean people suck. it's just so colossally stupid. it will offer yet another tool for overzealous prosecutors to fit some pattern of behavior into a law they can prosecute.

there are plenty of remedies if somebody is harassing you.
6.5.2008 7:28pm
Fub:
whit wrote at 6.5.2008 6:28pm:
it's yet another attempt by the state to attempt to regulate meanness and protect people from mean people, cause like... mean people suck. it's just so colossally stupid. it will offer yet another tool for overzealous prosecutors to fit some pattern of behavior into a law they can prosecute.

there are plenty of remedies if somebody is harassing you.
You betchum, Red Ryder. And I've used more than one. But I am a full growed adult. This (really bad) statute was at least inspired by vicious harassment of a child.

On the proposed statute, I agree that:

1. the statute (and the problem of harassment) is unrelated to actual spam (ie: UCE); and

2. the statute is badly drafted, and way too broad; and

3. any statute that regulates mere "meanness" is a bad idea.

But I'm not sure that we agree or not whether a well drafted statute is even possible. I'm not even sure whether I agree.

Just to pull a hypo out of the air, assume an adult falsely (but with great credibility) tells a child on the street "Your parents just died and they said it was all your fault."

To make a wild guess, I think that would be prosecutable under a California catchall statute PC 647 which prohibits "molest[ing] or annoy[ing] a child". I'm not so sure that statute would criminalize the same message delivered by phone or internet, because the statute may require physical presence with the child.

I think we both agree that such acts against a child, like the acts directed at Megan Meir, are reprehensible. I know that some degree of such behavior committed in person against a child, is prosecutable.

The first question is whether any statute for other communication methods, that would not be too broad, or open doors for overzealous prosecution, is even possible to draft.

If the answer is "no", then regardless of whether we agree, such a statute can't stand.

If the answer is "yes", then the question becomes how to draft a properly limited statute. Such a statute might still be a bad idea, but a properly drafted statute would at least be a less bad idea.

Obviously Sanchez and Hulshof didn't get it right.
6.5.2008 8:36pm
Fub:
Mary Katherine Day-Petrano wrote at 6.5.2008 5:20pm:
Don't you think the proposed FEDERAL LAW would possibly preempt out the cited good faith exception of the CA law? (And other states' laws like it?)
Yes I do. I offered the state statute as an example of better drafting than the proposed federal statute.
6.5.2008 8:40pm
Toby:

You betchum, Red Ryder. And I've used more than one. But I am a full growed adult. This (really bad) statute was at least inspired by vicious harassment of a child.

Someone needs to remind the legislature...hard cases make bad law
6.5.2008 10:06pm
teqjack (mail):
As stated in the posting here (no, I have not even tried to look up the actual proposal) police departments/personnel asking for information about a specific person would be liable.

Act in haste...
6.5.2008 10:18pm
Mary Katherine Day-Petrano (mail):
Fub,
WROTE:
"Yes I do. I offered the state statute as an example of better drafting than the proposed federal statute"

I am not sure the CA statute offers better draftsmanship, with the fuzzy concept of "good faith." You know, the Title II ADA Technical Assistance explains that if a public entity engages in the "interactive process" in "good faith," that should be be enough defense against a charge of discrimination. The problem is State Court public entities regard all of the following as included within the fuzzy concept of "good faith:"

1. shouting down and hanging up on a hearing impaired person with hyperacousia due to breakdown in the communication (largely on the part of the shouter-entity official);
2. deliberate failure to require ADA notice of rights included on all pleadings so no disabled person will know who to contact to engage in the interactive process;
3. processing an entire case through to judgment of a blind person using paper copies he/she can not see to read to understand;
4. refusing to receive a disabled person's medical documentation to "create" a reason to refuse to accommodate;
5. receiving medical documentation by qualified doctors stating the accommodations a disabled person requires, offering a handshake, calling it "an accommodation," and not undertaking ANY other effort whatsoever to offer equally effective accommodations.
etc etc.

There are no real standards to define what is "good faith," except some sort of 'I know it when I see it.'

If a cyberharasser/stalker has committed a crime, why should anyone expect the same person will not also have received (and blogged in a shameless brag about receiving) "an A+ in lying?" For example, "AnnTM."
6.5.2008 11:04pm
Tom Hanna (www):
There's no need for this law if we just make it legal for Megan's parents to kill the woman that killed their daughter. If it were my daughter, law wouldn't enter into it.
6.6.2008 12:46am
whit:
fub, good post.


You betchum, Red Ryder. And I've used more than one. But I am a full growed adult. This (really bad) statute was at least inspired by vicious harassment of a child.

On the proposed statute, I agree that:

1. the statute (and the problem of harassment) is unrelated to actual spam (ie: UCE); and

2. the statute is badly drafted, and way too broad; and

3. any statute that regulates mere "meanness" is a bad idea.

But I'm not sure that we agree or not whether a well drafted statute is even possible. I'm not even sure whether I agree.

Just to pull a hypo out of the air, assume an adult falsely (but with great credibility) tells a child on the street "Your parents just died and they said it was all your fault."


well, i'm not an expert in civil law but i am certain that would leave that person open to being sued for various and sundry.



To make a wild guess, I think that would be prosecutable under a California catchall statute PC 647 which prohibits "molest[ing] or annoy[ing] a child". I'm not so sure that statute would criminalize the same message delivered by phone or internet, because the statute may require physical presence with the child.

I think we both agree that such acts against a child, like the acts directed at Megan Meir, are reprehensible. I know that some degree of such behavior committed in person against a child, is prosecutable.

The first question is whether any statute for other communication methods, that would not be too broad, or open doors for overzealous prosecution, is even possible to draft.

If the answer is "no", then regardless of whether we agree, such a statute can't stand.

If the answer is "yes", then the question becomes how to draft a properly limited statute. Such a statute might still be a bad idea, but a properly drafted statute would at least be a less bad idea.

Obviously Sanchez and Hulshof didn't get it right.


that much we can agree on. the statute is awful.

i just see a problem with laws like this because they are nigh impossible to draft without including all sorts of really annoying stuff that shouldn't be criminal. what if somebody saw the same kid walking down the street and made fun of their appearance? or their handicap, etc? those are both mean, but they shouldn't be criminal.

so, how do you criminalize the guy telling the kid his parents are dead, and not criminalize the above mean stuff. it's hard to right a statute like that. and few things are more prone to abuse and selective prosecution than vague statutes that we trust the state to only pull out in really "bad" cases like telling the kid his parents are dead, but not in other cases, like telling the kid he looks funny or needs to earn how to dress.
6.6.2008 1:42am
Alec Baldwin 2:
I advocate stoning of Reps. Linda Sanchez (D-CA) and Kenny Hulshof (R-MO)

I advocate stoning of Reps. Linda Sanchez (D-CA) and Kenny Hulshof (R-MO)
6.6.2008 8:15am
KRIS:
It's my understanding that it wasn't until after the suicide that anyone was aware that the young man supposedly on the other side of the computer was imaginary, so frankly, the emotional distress to the young lady wasn't any different than if he had been real. Are there really people out there who think that REAL teenagers aren't this mean? Will we be prosecuting the real teenagers who say nasty things like this to each other as a routine part of their adolescent experience? Will we also be prosecuting those who "transmit" such meanness to each other by means of triangularly-folded anonymous notes stuck through locker vents, which was the favored means of transmission in my day? I know that the point that bad cases make bad law has been fervently and frequently made thus far, but I also think the fact remains that passage of this law would not make being a teenager, subjected to and affected by other teenagers, any easier or less emotionally distressing. Teenagers are a volatile lot, and to believe that one could prevent the plain meanness that caused a suicidally-inclined teenager to act on her inclinations by anything requiring an interstate commerce element seems to me to be incredibly naive.
6.6.2008 10:32am
Joe Bingham (mail):
In such circumstances, the harassment/staling has all the ingredients of Hercules attacking a defenseless blind man from every conceivable angle.

All the ingredients? :)
6.6.2008 10:53am
Fub:
whit wrote at 6.6.2008 12:42am:
so, how do you criminalize the guy telling the kid his parents are dead, and not criminalize the above mean stuff. it's hard to right a statute like that. and few things are more prone to abuse and selective prosecution than vague statutes that we trust the state to only pull out in really "bad" cases like telling the kid his parents are dead, but not in other cases, like telling the kid he looks funny or needs to earn how to dress.
That's the problem in a nutshell.

The conflict is between the idea that an obvious and egregious wrong should have a remedy, and the reality that you can't trust officials to prosecute only actual wrongs if a statute needs good judgment and discretion in enforcement.
6.6.2008 1:50pm
Mary Katherine Day-Petrano (mail):
"what if somebody saw the same kid walking down the street and made fun of their appearance? or their handicap, etc? those are both mean, but they shouldn't be criminal" ---->

This is hate speech. If you want to use hate speech, do it in the confines of your own private abode, off-line. When you use it in public, you incite violence against handicapped victims by others believing they belong to your hate group when they hear your hate speech and act on it to participate/conspire in off-blog physical attacks on the disabled victim/his or her service animal.
6.6.2008 3:45pm
Suzy (mail):
Making fun of people is not "hate speech" deserving restriction, no matter how mean it may be.

What I'd like to know is how far a person can go in encouraging someone else's act of violence, without becoming criminally liable for that act. Can I tell the suicidal person on the roof of my building to jump? Hand a sharp knife to the teenager I know to be suicidal, and say she's a loser? Can I tell person x to beat person y with a stick? Not being a lawyer myself, I don't know where the lines are drawn here for criminal vs. civil liability.
6.6.2008 4:22pm
andrew_brooklyn:
"what if somebody saw the same kid walking down the street and made fun of their appearance? or their handicap, etc? those are both mean, but they shouldn't be criminal" ---->

This is hate speech. If you want to use hate speech, do it in the confines of your own private abode, off-line. When you use it in public, you incite violence against handicapped victims by others believing they belong to your hate group when they hear your hate speech and act on it to participate/conspire in off-blog physical attacks on the disabled victim/his or her service animal.
----

This is a remarkably stupid contention. It is absolutely NOT legally actionable hate speech to make fun of someone's appearance. And despite your impassioned defense of the most kneejerk liberal principles, there is no way on earth this statute, even substantively modified, would pass a 1st amd challenge given Hustler, et al.
6.6.2008 5:05pm
jaed (mail):
KRIS suggests that if "Josh" had been real, and had acted the same way as the false "Josh" persona (establishing a relationship and then cutting it off while speaking cruelly to Megan Meiers), the outcome would have been the same. I agree that this is likely, and that in that case we wouldn't and shouldn't seek to criminalize Josh's reprehensible behavior.

The difference I see is in the element of deceit. Lori Drew created the "Josh" persona in order to weasel her way into Megan's confidence and gain her trust, with the evident intent of causing her emotional pain by means of this deceit. If Drew had approached Megan under her own name, it's unlikely either that Megan would have confided in her or that her death would have been the result. The deceit was necessary to her purpose.

(I have seen statements from Drew to the effect that she merely wanted to find out what Megan might say about Drew's daughter, but I find this implausible and I suspect a jury would as well. Surely such a purpose wouldn't require establishing a romantic and emotional relationship, and wouldn't require such a cruel sendoff. If the persona had been female, the approach friendly rather than romantic, and the ending been a simple cutoff and disappearance of the account I'd think it possible.)

I also notice that the thought experiment about the child being told his parents are dead relies on deceit. It seems much less outrageous if the parents are actually dead, even if telling the child is done in a cruel and nasty way.

Can this statute be saved by adding an element of deceit to it?
6.6.2008 11:12pm
whit:

"what if somebody saw the same kid walking down the street and made fun of their appearance? or their handicap, etc? those are both mean, but they shouldn't be criminal" ---->

This is hate speech. If you want to use hate speech, do it in the confines of your own private abode, off-line. When you use it in public, you incite violence against handicapped victims by others believing they belong to your hate group when they hear your hate speech and act on it to participate/conspire in off-blog physical attacks on the disabled victim/his or her service animal.



it aint hate speech, not in any meaningful way.

more importantly, this is AMERICA. hate speech is LEGAL

if you want a thought-control type country that criminalizes hate speech - tromp on over to canada.

but we respect freedom of speech and that includes the freedom to be mean without fear of criminal prosecution

sticks, stones, etc.
6.6.2008 11:43pm
Justthisguy (mail) (www):
This question has been discussed (uh, I mean mercilessly mocked) already on Encyclopedia Dramatica, a much better forum for discussing such stupid things than is Congress.

Congress has also been mercilessly mocked at Encyclopedia Dramatica, and elswhere. And had it coming.
6.7.2008 2:06am
Eugene Volokh (www):
Folks: "Hate speech" is not a legal term of art under U.S. law, nor an exception from First Amendment protection. Some of what some label "hate speech" may, depending on the circumstances, fall within the exceptions for fighting words, threats, incitement, or false statements of fact. But if you think a particular scenario or incident is unprotected on those grounds, you need to mention the specific exception, and explain how the speech fits within that exception.

For instance, under Brandenburg v. Ohio and Hess v. Indiana, the theory that blog posts that ridicule a person's disability are unprotected under the incitement exception -- because they "incite violence against handicapped victims by others believing they belong to your hate group when they hear your hate speech and act on it to participate/conspire in off-blog physical attacks on the disabled victim/his or her service animal" -- simply doesn't fly, chiefly (though not solely) because the imminence element is absent (check those cases and you'll see).

But in any event, the important point that simply arguing that some speech is unprotected under current First Amendment law because it's "hate speech" doesn't demonstrate much of anything -- except that it does demonstrate to those readers who are familiar with First Amendment law that the speaker isn't making a sound First Amendment argument.
6.7.2008 4:51pm
Mary Katherine Day-Petrano (mail):
EV
WROTE:
"-- simply doesn't fly, chiefly (though not solely) because the imminence element is absent (check those cases and you'll see)" --->

Do you have some factual evidence regarding "imminence" I do not have? I believe my post assumed the imminence element WAS present. But if you are claiming it is not, please make pro-offer of the facts you have that I don't.

As for those posters who are poo-pooing the idea that "hate speech +" when used to incite an imminent attack of violence on a disabled American is mere Foo Foo Dust, I would point out that their defensive posture occurs AFTER presentation of the case-in-chief and, at this juncture, would appear to be premature.
6.7.2008 11:39pm
sobi:
The reason we like Death Wish movies is because, by agreeing to permit the law to handle all retribution, there isn't enough of it written into the law before the wrong act which calls for retribution. This lets the bad guys off. The people get revved up because a bad guy did a bad thing, someone got hurt, no one can touch the bad guy, including the law.

We don't need a law to criminalize the nasty behavior, we need a legal defense to some form of vigilante retribution, like heat of passion, or provocation beyond reasonable restraint, that a jury can use to exempt citizen inspired retribution. That way we can have law and consequences.

Put the fear back into bad guys and stop criminalizing human behavior so the opportunity to provide consequences will be there when we need them.

As far as it being the internet, the bad guys were always hidden and secretive about their bad behavior. Mean people exist, and always have. It is just too hard to kick them now without paying a personal price.
6.8.2008 6:35pm
mundens (mail):
Well, one good thing about the law is that it would force the RIAA and Media Defender to either shut up or go to jail!

I mean, how else can one describe RIAA take-down orders, but "Severe, Repeated, and Hostile Communication with the Intent to Cause Substantial Emotional Distress?"

Just let the RIAA know that there's a proposed law on the books that that will prevent them from issuing take-down orders, and they'll defeat it for us!
6.8.2008 10:47pm
Jay:
Think of how boring campaign ads are going to be after this. They might actually have to talk about themselves and (shock) issues.
6.9.2008 1:27pm
Cat Amongst the Pidgeons (mail):
I think that this type of issue could have been totally prevented if your (America's) free speech laws weren't so psychotically and blindly fought for. If you were really serious about your precious free speech why are some things illegal such as child pornography? Why is any "expression" illegal? Is it perhaps to preserve a tiny shred of societal decency?
6.10.2008 4:01am