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Federal Felony To Use Blogs, the Web, Etc. To Cause Substantial Emotional Distress Through "Severe, Repeated, and Hostile" Speech?

That's what a House of Representatives bill, proposed by Rep. Linda T. Sanchez and 14 others, would do. Here's the relevant text:

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 to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both....

["Communication"] means the electronic transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received; ...

["Electronic means"] means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.

1. I try to coerce a politician into voting a particular way, by repeatedly blogging (using a hostile tone) about what a hypocrite / campaign promise breaker / fool / etc. he would be if he voted the other way. I am transmitting in interstate commerce a communication with the intent to coerce using electronic means (a blog) "to support severe, repeated, and hostile behavior" -- unless, of course, my statements aren't seen as "severe," a term that is entirely undefined and unclear. Result: I am a felon, unless somehow my "behavior" isn't "severe."

2. A newspaper reporter or editorialist tries to do the same, in columns that are posted on the newspaper's Web site. Result: Felony, unless somehow my "behavior" isn't severe.

3. The politician votes the wrong way. I think that's an evil, tyrannical vote, so I repeatedly and harshly condemn the politician on my blog, hoping that he'll get very upset (and rightly so, since I think he deserves to feel ashamed of himself, and loathed by others). I am transmitting a communication with the the intent to cause substantial emotional distress, using electronic means (a blog) "to support severe, repeated, and hostile behavior." (I might also be said to be intending to "harass" -- who knows, given how vague the term is? -- but the result is the same even if we set that aside.) Result: I am a felon, subject to the usual utter uncertainty about what "severe" means.

4. A company delivers me shoddy goods, and refuses to refund my money. I e-mail it several times, threatening to sue if they don't give me a refund, and I use "hostile" language. I am transmitting a communication with the intent to coerce, using electronic means "to support severe, repeated, and hostile behavior." Result: I am a felon, if my behavior is "severe."

5. Several people use blogs or Web-based newspaper articles to organize a boycott of a company, hoping to get it to change some policy they disapprove of. They are transmitting communications with the intent to coerce, using electronic means "to support severe, repeated, and hostile behavior." Result: Those people are a felon. (Isn't threatening a company with possible massive losses "severe"? But again, who knows?)

6. John cheats on Mary. Mary wants John to feel like the scumbag that he is, so she sends him two hostile messages telling him how much he's hurt her, how much she now hates him, and how bad he should feel. She doesn't threaten him with violence (there are separate laws barring that, and this law would apply even in the absence of a threat). She is transmitting communications with the intent to cause substantial emotional distress, using electronic means "to support severe, repeated, and hostile behavior." Result: Mary is a felon, again if her behavior is "severe."

The examples could be multiplied pretty much indefinitely. The law, if enacted, would clearly be facially overbroad (and probably unconstitutionally vague), and would thus be struck down on its face under the First Amendment. But beyond that, surely even the law's supporters don't really want to cover all this speech.

What are Rep. Linda Sanchez and the others thinking here? Are they just taking the view that "criminalize it all, let the prosecutors sort it out"? Even if that's so, won't their work amount to nothing, if the law is struck down as facially overbroad -- as I'm pretty certain it would be? Or are they just trying to score political points here with their constituents, with little regard to whether the law will actually do any good? I try to focus my posts mostly on what people do, not on their motives, but here the drafting is so shoddy that I just wonder why this happened.

Related Posts (on one page):

  1. "Reasonable Regulation of Speech":
  2. Rep. Linda Sanchez Defends Proposed Outlawing of Using Blogs, the Web, Etc. To Cause Substantial Emotional Distress Through "Severe, Repeated, and Hostile" Speech:
  3. Federal Felony To Use Blogs, the Web, Etc. To Cause Substantial Emotional Distress Through "Severe, Repeated, and Hostile" Speech?
geokstr (mail):
It's just the opening salvo of applying speech limitations on the internet. How far exactly is "Severe, Repeated, and Hostile" speech to "hate" speech anyway?

After that comes various restrictions to ensure "fairness".
4.30.2009 4:20pm
PatHMV (mail) (www):
Eugene, I agree entirely with your post. However, I'm not as sanguine as you that the statute would be tossed out as facially overbroad; Justices Roberts and Alito have in at least one first amendment case indicated a reluctance to indulge facial challenges until sufficient cases have been through the courts to see that there really is no valid way to provide a limiting construction to the statute. My sense is that they would be more likely to toss out your conviction, but hold that some other case may show conduct "severe" enough as to not be worthy of constitutional protection.
4.30.2009 4:25pm
Splunge:
Phoo, it's the Zeitgeist. Thirty years of if you can't say something nice, you can't say anything at all enforced in classrooms nationwide taking their toll. Or maybe it's all the immigration from cultures lacking destructive and inconclusive intramural religious conflict in their 16th through 18th centuries. The First Amendment is the kind of exhausted ceasefire agreement you come to after being unable to successfully impose Correct Thinking on everyone.
4.30.2009 4:27pm
TNeloms:
Isn't this in direct response to the Lori Drew case? That seems to be the motivation here.
4.30.2009 4:31pm
josil (mail):
I can't even imagine the millions of people who would have been jailed under the "Sanchez sanction" if the subject of the communication was G. W. Bush. Even now...
4.30.2009 4:33pm
Tucker (mail):
At least it's related to interstate commerce. They got that far in reading the Constitution.
4.30.2009 4:34pm
CMH:
Since the official title is the "Megan Meier Cyberbullying Prevention Act," I predict a campaign of lambasting opponents of the bill for not supporting "Megan's Law."
4.30.2009 4:34pm
richard1 (mail):
Why are you possibly taking this so seriously? 15 out of 435 sign on. It has no chance of passage, no chance of hearings. Every year stupid and unconstitutional bills are proposed.
4.30.2009 4:34pm
Chuck Pelto (mail) (www):
TO: All
RE: Let the 'Games' Begin!

"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 to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both...." -- Our Congress at 'Work'

I recommend that all of the sponsors of this bill be arrested immediately, as I am sorely distressed they even proposed such an abridgment of the First Amendment of the Bill of Rights.

Regards,

Chuck(le)
P.S. Or is this ANOTHER example of 'Do as I say...not as I do'?

Christ warned us about these sorts......when He had to deal with the hypocrites of His time. They were the 'law makers' of their time too......
4.30.2009 4:40pm
karrde (mail) (www):
The number 15 is greater than the number 1.

It is worrying, especially considering the track record of rushed, poorly-thought-out legislation that we've seen so far this year.
4.30.2009 4:43pm
Hans Bader (mail):
The bill is unconstitutional, but don't expect liberal "civil-liberties" groups to offer more than mild opposition, since the sponsors are (with one exception) politically-correct liberals.

The "severe, repeated, and hostile behavior" language is an obvious attempt to extend the "hostile work environment" concept to society as a whole.

But the Supreme Court has often held either that hate speech is protected, or that speech intended to cause public figures distress is protected. See R.A.V. v. St. Paul, 505 U.S. 377 (1992) (invalidating hate-speech ordinance); Hustler Magazine v. Falwell, 485 U.S. 46 (1988) (vulgar parody that intentionally inflicted emotional distress was protected speech); see also United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999) (anonymous racist phone messages left by caller on answering machine were protected speech).

A number of courts have explicitly either rejected attempts to apply hostile-environment concepts to society generally, see, e.g., Dambrot v. Central Michigan Univ. 55 F.3d 1177 (6th Cir. 1995) (invalidating hostile-environment harassment policy); UWM Post, Inc. v. Board of Regents, 773 F.Supp. 1163 (E.D. Wis. 1991) (rejecting Title VII sexual harassment analogy: "Title VII is only a statute, it cannot supersede the" First Amenmdnet), or cast doubt on the constitutionality of doing so, see DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008) (invalidating college sexual harassment policy which was broader than Title VII is certain respects, but also noting that "there is no harassment exception to the First Amendment's free speech clause . . . some some speech that creates a 'hostile or offensive environment' may be protected speech under the First Amendment. It is difficult to cabin this phrase, which could encompass any speech that might simply be offensive to a listener, or a group of listeners, believing that they are being subjected to or surrounded by hostility.").

Similarly, courts have rejected speech-restricting statutes despite their labeling speech as "harassment," such as "hunter harassment" laws. See, e.g., People v. Sanders, 696 N.E.2d 1144 (Ill. 1998); State v. Ball, 627 A.2d 892 (Conn. 1993).
4.30.2009 4:44pm
Monty:
First let me say I think this is a horrible statute and hope it is struck down.

That said, I think it would be possible to read most of the statute in a way that it can survive a facial challange:

You must have the intent to do one of the following

1. coerce - Implies some type of unfair or illegal method of changing a person's mind. Something that would make a normal and reasoning person do something against thier will. Same type of coercion that could get someone off the hook for thier involuntary participation in a crime.

2. intimidate - Again, some type of threat, probably of violence, or unlawful retaliation.

3. harass - Repeated contacts, after you have been warned to stop, and without any type of priveledge to conduct them. You could always contact a politician over political things, even if they wanted you to stop, as you have a right to contact them...

4. cause substantial emotional distress to a person - This is the hardest one to justify. I really don't know how this could be constructed to survive a facial challange.

Clearly congress can make criminal certain types of speech, and atleast the first 3 could be read to only apply to speech which may lawfully be banned... It may be a rather large stretch to read them that way, but I don't know.
4.30.2009 4:45pm
ManM:
Lord, this is dumb.

How to stop bullying (cyber or otherwise): don't interfere with retaliation against bullying. It's that simple.
4.30.2009 4:48pm
Nigel Tufnel (mail):
[Substanceless insult of Rep. Sanchez deleted. Folks, I think a lot of insults are constitutionally protected, but that doesn't mean I want them on my blog. Please keep it civil and substantive. (I realize the comment might have been a subtle joke, as an attempt to illustrate what the law would ban, but it still struck me as over the line.) -EV]
4.30.2009 4:52pm
jcz (mail):
Does it matter that "Communication" is defined in the second paragraph as a verb, but used in the first paragraph as a noun?
4.30.2009 4:55pm
Hank Bowman, MD (mail) (www):
Three words to never use together: "Linda Sanchez"; thinking
4.30.2009 4:57pm
Hans Bader (mail):
The bill is unconstitutional, because there is no "harassment" or "bullying" exception to the First Amendment. See, e.g., DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008)("there is no harassment exception to the First Amendment's free speech clause"), quoting Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001) (Alito, J.); Bauer v. Sampson, 261 F.3d 775 (9th Cir. 2001) (college policy on racial harassment and workplace violence was unconstitutional as applied to depictions of college president that expressed contempt for him and a yearning for his demise); People v. Sanders, 696 N.E.2d 1144 (Ill. 1998) (invalidating hunter harassment law); UWM Post, Inc. v. Board of Regents, 774 F.Supp. 1163 (E.D. Wis. 1991) (speech does not automatically lose its protection because it creates an "intimidating" environment for the complainant).

The "severe, repeated, and hostile behavior" language is an obvious attempt to extend the "hostile work environment" concept to society as a whole (further illustrated by the fact that almost all of the bill's sponsors are politically-correct liberals).

But the Supreme Court has often held that even hate speech is protected, and that even speech intended to cause public figures distress is protected. See R.A.V. v. St. Paul, 505 U.S. 377 (1992) (invalidating hate-speech ordinance); Hustler Magazine v. Falwell, 485 U.S. 46 (1988) (vulgar parody that intentionally inflicted emotional distress was protected speech); see also United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999) (anonymous racist phone messages left by caller on answering machine were protected speech).

A number of courts have explicitly either rejected attempts to apply hostile-environment concepts to society generally, see, e.g., Dambrot v. Central Michigan Univ. 55 F.3d 1177 (6th Cir. 1995) (invalidating hostile-environment harassment policy); UWM Post, Inc. v. Board of Regents, 773 F.Supp. 1163 (E.D. Wis. 1991) (rejecting Title VII sexual harassment analogy: "since Title VII is only a statute, it cannot supersede the requirements of the First Amendnent"), or cast doubt on the constitutionality of doing so, see DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008) (invalidating college sexual harassment policy which was broader than Title VII is certain respects, but also noting that "there is no harassment exception to the First Amendment's free speech clause . . . some some speech that creates a 'hostile or offensive environment' may be protected speech under the First Amendment. It is difficult to cabin this phrase, which could encompass any speech that might simply be offensive to a listener, or a group of listeners, believing that they are being subjected to or surrounded by hostility.").

Similarly, courts have rejected speech-restricting statutes despite their labeling speech as "harassment," such as "hunter harassment" laws. See, e.g., People v. Sanders, 696 N.E.2d 1144 (Ill. 1998); State v. Ball, 627 A.2d 892 (Conn. 1993).
4.30.2009 4:59pm
ArthurKirkland:

don't expect liberal "civil-liberties" groups to offer more than mild opposition, since the sponsors are (with one exception) politically-correct liberals.


That one political party allows itself to be hijacked into promoting the ideological agenda of a fringe element does not mean every political party does so.

I don't expect this proposal to get (or deserve) half of the Democratic votes if it ever reaches a vote.

The proponents might be reacting to the 'neighbor-uses-fake-intertubes-boyfriend -to-drive-fragile-teen-to-suicide' case, in which case this may involve good intentions underlying a bad idea.
4.30.2009 5:00pm
great unknown (mail):
Q:"What are Rep. Linda Sanchez and the others thinking here?"
A: Items 1, 2, and 3 in your article.
4.30.2009 5:03pm
Uh_Clem (mail):
...don't expect liberal "civil-liberties" groups to offer more than mild opposition

I can only assume that you don't include the ACLU in the category of 'liberal "civil-liberties" groups'.

I seriously doubt that they would stand by idly if this overly-broad poorly-crafted piece of legislation gets beyond committee.
4.30.2009 5:05pm
John Murdoch (mail):
Monty:

An example of coercion, intimidation, harassment, with intent to cause substantial emotional distress:

"Dear Blowhard Zywicki:
This is the fifth time I have written you about the lousy performance of the Dartmouth badminton team, and yet you continue to ignore me. Unless Dartmouth finally recognizes the contributions of the badminton players with the same kind of "scholarship help" they provide to the hockey and football teams, you will not have a day's rest.

"My friends and I are serious--and we're prepared to pay good money to ensure that everybody and anybody connecting to a web page in the vicinity of your home town, Grover's Mills, NJ, will hear about the lackluster support you have provided to the badminton team, the very pride of Hanover.

"Oh, that's right. You USED to be on the board of trustees. We gotcha. Who's laughing now, doughboy?"

I venture to say that email might meet the requirements of the bill. (Not that I bear Prof. Zywicki any animus at all--for all that I was the play-by-play announcer for Penn football in 1979 and 1980, when Dartmouth drubbed us.)

May I ask a question of the learned participants of this site? In a case like this, couldn't a test case be--for want of a better term--staged so as to put the issue before the courts without waiting for someone to be indicted, charged, perp-walked, and generally had their lives destroyed?

If so, I'd be happy to sign up to help. I can think of all sorts of rude things to say to Glenn Reynolds....
4.30.2009 5:06pm
John A (mail):
Fifteen sponsors? One I might understand, but fifteen?!!?

I fear this Congress.
4.30.2009 5:07pm
Tim P (mail) (www):
richard1,
Trying to deprive American workers of their right to vote (via secret ballot) for their own representation would have been considered extreme, even laughable ten years ago, but the senate will be voting on 'card check' this summer.
Just consider this battlespace preperation.
4.30.2009 5:07pm
Micha Elyi (mail):
Kind'a makes a libertarian miss ol' Bob Dornan.
4.30.2009 5:10pm
John S. Ford (mail):
It's nothing more than a diversion. Aim high, shoot low. Trust me, the next iteration of this idea will seem much more "reasonable".
4.30.2009 5:11pm
tim maguire (mail):
This must be obvious to most here since nobody here has raised it, but a blog is commerce...how, exactly?

This message brought to you by The Interstate Commerce Clause, the clause that ate the constitution!
4.30.2009 5:11pm
Paul A'Barge (mail):
[Substanceless partisan insult deleted. Folks, I think a lot of insults are constitutionally protected, but that doesn't mean I want them on my blog. Please keep it civil and substantive. -EV]
4.30.2009 5:13pm
jimsjournal (www):
To quote from the bill: "Congress finds the following: (1) Four out of five of United States children aged 2 to 17 live in a home where either they or their parents access the Internet."

See, it's really for the children, the dear, sweet little children, so how could anyone possibly object? And puppies and kittens. It's all for the dear sweet innocent little children and puppies and kittens.
4.30.2009 5:13pm
Redman:
Kiss the internet as we know it good bye. The political class cannot tolerate the citizenry being able to communicate among ourselves as we do now.
4.30.2009 5:17pm
Edmund Unneland (mail):
To what extent is Chaplinsky still viable and might give aid and comfort to those who might support this bill?
4.30.2009 5:17pm
foople (mail):
why, that dirty sanchez...
4.30.2009 5:21pm
Vinny Vidivici (mail):
"What are Rep. Linda Sanchez and the others thinking here?"

That this blunt instrument would never be used on them and would be used only to criminalize opponents who say things they don't want to hear and don't want others to hear.

Splunge and Hans Bader are on the case.

Sanchez is looking toward the future, when such a ludicrous notion will seem entirely plausible. After all, we've snickered at the notion of 'hate speech' for a few decades now and look how far it's gone.
4.30.2009 5:23pm
BenFranklin (mail):
Well, everyone voted for the progressives so why the surprise? This is what they do. It is what they live for; the expansion of government over every facet of life, the suppression of differing viewpoints and the prosecution of political differences. There is no part of their program that can be implemented without the use of force and this is all the easier if dissent is criminalized. It is only shocking if you haven't been paying attention to what they say or if you only get your news from CNN or the NY Times.

There is a very bad craziness afoot in this country when the people in charge go around writing laws to make criminals of anyone who disagrees with them or insults their constituent groups; when the president is proposing labor and indoctrination camps for kids, and civilian armies "as large and well equipped as our military" are seen as necessary to... well, needless to say there can be no good purpose to such a thing.

I have always wondered what it was like watching Mussolini in front of his Doric columns, orating to the adoring masses. I wondered what thoughts went through their minds as they hailed their oppressor. But mostly I wondered why no one tried to stop it and just how so many people ended up brainwashed enough to allow it to happen. Never did I expect to see a repeat of such a thing in my own country. Surely our forefathers had inoculated us against such tyranny. Surely we are a nation of leaders and not followers. And yet, here we are... right down to the matching backdrop.

Somehow, relying on a Supreme Court that has seen nothing wrong with McCain-Feingold or the original Fairness Doctrine to bail us out seems a very thin reed on which to rely.
4.30.2009 5:29pm
ed (mail) (www):
Hmmm.

Passing this law would -almost- make me want Jeb Bush to run for President.

I figure about all of DemocraticUnderground and DailyKos would be incarcerated within a week.
4.30.2009 5:32pm
Visitor Again:
Why are you possibly taking this so seriously? 15 out of 435 sign on. It has no chance of passage, no chance of hearings. Every year stupid and unconstitutional bills are proposed.

Because it provides another opportunity to bash liberals, leftists, progressives, etc. who, it is claimed, overwhelmingly support this kind of speech restriction. See comments above.
4.30.2009 5:35pm
A. Zarkov (mail):
How about talk radio hosts who constantly hammer away at politicians? For example Michael Savage spews forth invective on a daily basis against the likes of The Anointed One (there I just did it), Janet Napolitano, Larry King, the major of San Francisco-- virtually everyone. He calls them "morons," "perverts," and worst of all, "liberals." I would sure call all that "severe, repeated, and hostile behavior." Being called a liberal is sure to induce emotional distress in almost anyone.

Crossing over to the other side, the Pacifica Radio stations also engage in "severe, repeated, and hostile behavior," but perhaps not to the extreme of Savage. So do some other Cable channel hosts.

If that bill gets enacted and is not found unconstitutional, Savage will be one of the first to get hauled off by Obama's thought police. Damn, there I did it again. Can't help myself. A career criminal in the making.
4.30.2009 5:36pm
Joseph Slater (mail):
Don't mean to threadjack, but since TimP brought it up. . . .

Nothing in EFCA would change any right of any employee under the NLRA to have a secret ballot election. The only thing the "card check" portion of EFCA would do is alter the rights of employers. Currently, if given a majority of signed cards, employers have the option of recognizing a union or demanding an election. Were EFCA passed in its current form (and all signs indicate it won't be, but anyway. . ..) the employer would have to recognize the union.

On the other hand, before and after EFCA, if 30% or more of employees want a secret ballot election, they can petition to get one. EFCA doesn't change anything about employees' rights in this matter.

On the topic of the original post, I agree with Eugene that this is a bad idea for a law, but also agree with others that it doesn't have a chance of going anywhere.
4.30.2009 5:37pm
Dave1941 (mail):
I maintain a website that re-publishes classic Christian articles and sermons.

I imagine that such articles and sermons could cause substantial emotional distress to folks of non-Christian religious persuasions.

I guess that makes me a felon.

-----

One other note, don't expect such a law to be uniformly enforced. This will be used by the Left to suppress its enemies.
4.30.2009 5:37pm
Visitor Again:
Justices Roberts and Alito have in at least one first amendment case indicated a reluctance to indulge facial challenges until sufficient cases have been through the courts to see that there really is no valid way to provide a limiting construction to the statute. My sense is that they would be more likely to toss out your conviction, but hold that some other case may show conduct "severe" enough as to not be worthy of constitutional protection.

My sense is even more finely honed. I believe they might even wait until the bill is enacted before they decide how the law is to be construed or whether it is constitutional.
4.30.2009 5:38pm
Barbara Skolaut (mail):
"but here the drafting is so shoddy"

Ooooo, better be careful there, Eugene. That might "cause substantial emotional distress" to Ms. Sanchez - and you'd be a felon. ;-p

What are they thinking? These idiots aren't thinking - and I doubt they know how.

(Is that severe enough? Can I be a felon too?)
4.30.2009 5:43pm
ShelbyC:
@foople, LMAO.
4.30.2009 5:46pm
Duffy Pratt (mail):
Savage at least would probably have a pretty good insanity defense.
4.30.2009 5:46pm
malclave (mail):
This should make online video games even more fun.

"Hello, FBI? There are people in a chat channel in World of Warcraft that are calling me a n00b and saying other hurtful things. Please arrest them."
4.30.2009 5:46pm
plutosdad (mail):
Why are you possibly taking this so seriously? 15 out of 435 sign on. It has no chance of passage, no chance of hearings. Every year stupid and unconstitutional bills are proposed.

15 people in Congress thinking something like this is ok is quite a few.

It will grow exponentially once the Democrats realize they can use this to silence Rush and the blogs attacking them.
4.30.2009 5:49pm
Barbara Skolaut (mail):
"Congress finds the following: (1) Four out of five of United States children aged 2 to 17 live in a home where either they or their parents access the Internet and we think their parents are too freakin' stupid, lazy, or both to take responsibility for their children, so we 535 total strangers will. Too bad if we screw it up for everyone else."

There - fixed.
4.30.2009 5:50pm
plutosdad (mail):
On the other hand, before and after EFCA, if 30% or more of employees want a secret ballot election, they can petition to get one. EFCA doesn't change anything about employees' rights in this matter.

LOL ha ha ha you can't be serious

Yea and if the typical employee is afraid and feels intimidated enough to want a secret ballot, I AM SO SURE that employee will be brave enough to call for one!

yeah right

I live in Chicago, I've seen the Elecriticians union at work here. You can't tell me the purpose of card check is ANYTHING more than the chance to bully. After all why else would anyone want to know the names? We've run democracies through secret ballot for hundreds of years as the ONLY way to protect the people voting. Now some want to throw that out? There's a reason ballots are secret you know.
4.30.2009 5:51pm
Joseph Slater (mail):
I really don't want to make this a thread about EFCA, so I'll just answer plutosdad and stop.

(1) Current law already allows recognition through card check without a secret ballot.

(2) Mandatory card check recognition, as in EFCA, is already the law in 5-6 states for public sector employees. There have been no reported problems with union intimidation.

(3) The problem EFCA is trying to fix is the very real one of employer intimidation. About one of every four employers faced with an organizing campaign illegally fires workers. Workers already need to be brave enough to deal with that -- angering an employer who could fire them, as opposed to angering some pro-union co-workers who can't.

I could go on, but again, I don't want to threadjack.
4.30.2009 5:57pm
Hans Bader (mail):
As a federal appeals court noted in DeJohn v. Temple University (2008), "there is no harassment exception to the First Amendment's free speech clause." Speech that causes emotional distress can be protected,as the Supreme Court made clear in barring a lawsuit by Jerry Falwell over an offensive parody.

Under this bill, a blogger like Emile Zola, the courageous writer who exposed an anti-semitic witchhunt a century ago in the infamous Dreyfus Affair through his repeated and "vehement public" denunciations of public officials, would be subject to prosecution. His "severe, repeated, and hostile" denunciations resulted in many public figures being discredited and removed from office, which no doubt caused them "substantial emotional distress."

The bill is a telling example of how the American Left has turned against free speech and civil liberties. The bill's sponsor, Linda Sanchez (D-CA), and nearly all of her 14 co-sponsors are liberals. All 15 of them were fervent pushers of the federal hate-crimes bill passed by the House yesterday, which is designed to allow people who have been found innocent in state court to be reprosecuted in federal court. (That bill has been criticized by four members of the U.S. Civil Rights Commission, including law professor Gail Heriot, and by civil libertarian Wendy Kaminer.

As a student at the University of Virginia in November 1990, I witnessed a four-hour long speech by a racist, anti-semitic demagogue from the Nation of Islam. When no one else would do so, perhaps for fear of physical retaliation, I and my friends Arshad and David repeatedly and publicly denounced the speech — and the head of U.Va.'s Black Student Alliance (BSA), who sponsored and celebrated the speech. Our criticism no doubt struck the BSA's head as "severe, hostile, and repeated," and caused him "emotional distress," since he transferred to Hampton State University in the middle of his third year in college after being ostracized by outraged students. (46 people of all different races came up to me and thanked me for my criticisms, but no one wanted to do so publicly, lest they be accused of "racism" or receive threats from Nation of Islam supporters, as my friend David did. My friend Arshad, a Bangladeshi Muslim who criticized the speech and the Nation of Islam as a "heretical expression of race hatred," was left alone, probably because it is harder to brand a racial minority as being racist).
4.30.2009 6:13pm
Salt5792:
Don't be too sure it would be struck down. Never underestimate the power of the SCOTUS to do idiotic things.
4.30.2009 6:13pm
sbron:
I wonder what Rep. Sanchez thinks of "Nation of Aztlan". Only go to the site below if you have a strong stomach.

www.aztlan.net
4.30.2009 6:20pm
James Gibson (mail):
I'm curious as to how this might effect certain websites/blogs that seem to be filled with people making accusations against some person or another (mostly against republicans) without one piece of evidence to backup their accusations. Yet, because it was posted on these blogs these statements then get repeated on other sites and by people in the media with the result being this kind of harrassment this bill is intended to prevent.

Though I have not read this bill completely, by the discriptions given here it would tend to be, at least, an attempt to rectify the problem in the Libel laws regarding the internet verses the print media.

Mind you I am playing devil's advocate here.
4.30.2009 6:21pm
Bruce Hayden (mail):
Nothing in EFCA would change any right of any employee under the NLRA to have a secret ballot election. The only thing the "card check" portion of EFCA would do is alter the rights of employers. Currently, if given a majority of signed cards, employers have the option of recognizing a union or demanding an election. Were EFCA passed in its current form (and all signs indicate it won't be, but anyway. . ..) the employer would have to recognize the union.
You keep repeating this propoganda. It is still unavailing.
(1) Current law already allows recognition through card check without a secret ballot.

(2) Mandatory card check recognition, as in EFCA, is already the law in 5-6 states for public sector employees. There have been no reported problems with union intimidation.

(3) The problem EFCA is trying to fix is the very real one of employer intimidation. About one of every four employers faced with an organizing campaign illegally fires workers. Workers already need to be brave enough to deal with that -- angering an employer who could fire them, as opposed to angering some pro-union co-workers who can't.
1) yes, but it doesn't mandate it. Which means that currently, if there are union thugs in town putting heavy pressure on workers to unionize, a secret ballot can be called for to remove this threat.

2) And that makes it a good idea? There is a big difference between public and private employment here, in particular, the problem of union rules and/or wages driving a company out of business or to leave. Neither is an issue with public employers. The governments they work for can't move, and aren't going to fire anyone, union or no union (though, public employee unions make that dynamic even worse).

3) Supposedly solving that by making the opposite problem, of union intimidation, much, much worse. Right now, the best defense against union thugs trying to force people to join a union is the secret ballot. The workers can now say, sure, but then in secret vote against the union and their thugs. That will disappear.
4.30.2009 6:30pm
Daniel Chapman (mail):
Possibly a silly question, but I'm not attempting snark here...

Would former law professor Obama sign such a bill?
4.30.2009 6:50pm
Catherine Jefferson:
Perhaps the problem is that Rep. Sanchez and her colleagues have *not* been thinking, at least in the normal sense of the word "thinking". :/
4.30.2009 6:59pm
DangerMouse:
Libs are the authors of all college speech codes. It's no surprise they'd bring that to the federal level at some point.

It's just another attempt to shut down conservative speech. Probably a stalking horse so pass the Fairness Doctrine.
4.30.2009 8:04pm
Thoughtful (mail):
Interesting, isn't it, that the phrase "facially overbroad" is so frequently a perfectly acceptable substitute for "farcically overbroad"?
4.30.2009 8:19pm
Tom Perkins (mail):
@Nigel

I think you turned the insult dial up too far and hit 12, dude.

Yours, TDP, ml, msl, &pfpp
4.30.2009 9:20pm
Thanos (mail) (www):
This is the left's equivalent of the anti-flag burning amendment the Republicans floated: red meat for the fringe and they know in advance that it won't work.
4.30.2009 10:04pm
Simon P:
Yeah, yeah. Eugene, it's cute that you're working up a froth over this, but this is really a no-brainer.

If there's an interesting question here, it's the overbreadth/vagueness question. As a couple of other commenters have pointed out, we seem to be moving away from facial challenges. I don't think we've moved so far from them as to make a statute like this, with its potential chilling effect, challengeable only as applied. But certainly the trendline is moving, and I kind of wonder if there might be some pattern to how the facial/as-applied question breaks and how the lower courts are dealing with some of the Court's signals.
4.30.2009 10:39pm
whit:
imo, this is primarily a result of The War on Domestic Violence (tm).

this movement has resulted in all sorts of restrictions, for example severe limitation on the right to freely associate . consider cases where AGAINST a "victim's" wishes, a judge issues a no-contact order against her boyfriend/spouse.

and consider that there already ARE such laws on the books as the one proposed here. here is WA state's cyberstalking statute. i've complained about it before.


RCW 9.61.260
(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.
4.30.2009 11:45pm
whit:
imo, this is primarily a result of The War on Domestic Violence (tm).

this movement has resulted in all sorts of restrictions, for example severe limitation on the right to freely associate . consider cases where AGAINST a "victim's" wishes, a judge issues a no-contact order against her boyfriend/spouse.

and consider that there already ARE such laws on the books as the one proposed here. here is WA state's cyberstalking statute. i've complained about it before.


RCW 9.61.260
(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.
4.30.2009 11:45pm
Dick Stanley (mail) (www):
Sanchez tried this move last summer and got nowhere.

http://news.cnet.com/8301-10784_3-9962375-7.html

Of course, things are different now, so who knows.
5.1.2009 12:01am
geokstr (mail):

Salt5792:
Don't be too sure it would be struck down. Never underestimate the power of the SCOTUS to do idiotic things.

Especially by the time any legal challenges would wend their way through the court system and reach a SCOTUS by then domimated by Obama appointees.

This is just the beginning of the attempts to throttle the speech of the right, using as its justification a very hard case that even the right was appalled by. If it doesn't pass, another attack from a slightly different direction will be proposed, then others. Incrementally, it will all happen slowly and no one will notice until free speech is gone, and it will be done in the names of "tolerance", "diversity", "fairness", and "justice".

As I said in many other threads, we are debating on the legal minutia about the bark of one part of one branch of one tree, and forgetting that it's part of a big forest.

Trends in modern societies from all angles seem to be going only towards greater collectivism and oppressive government control. The rachet only turns one way - towards the left.

The only thing Orwell got wrong was the year.
5.1.2009 9:10am
M O'Brien (mail):
News of this proposal is causing me emotional distress. And it's a law, so that will be coercing me. Sanchez is doing it, so Sanchez is a felon, right?
5.1.2009 9:50am
David M. Nieporent (www):
Joseph Slater (mail):
I really don't want to make this a thread about EFCA, so I'll just answer plutosdad and stop.

(3) The problem EFCA is trying to fix is the very real one of employer intimidation. About one of every four employers faced with an organizing campaign illegally fires workers. Workers already need to be brave enough to deal with that -- angering an employer who could fire them, as opposed to angering some pro-union co-workers who can't.
Not to threadjack any more than you, but I fail to see how the remedy here is congruent with the purported (*) problem. It's illegal to retaliate against workers for union activity; what does card check have to do with that? It doesn't prevent employers from firing those involved in organizing, just as they do now. All it does is make it harder for employers to legitimately campaign against the union.


(*) To repeat a point I've made before: obviously some employers illegally retaliate, but the high numbers that I routinely see are simply allegations by union activists, not actually-established facts.


(And as for pro-union employees, true, they don't have the ability to fire their uncooperative co-workers, but they can make their lives miserable.)
5.1.2009 10:34am
Vader:
It's a mistake to worry about what Congress is thinking, since they so seldom do.

That said, the idea that Supreme-Court-as-safety-net is a kind of political moral hazard for Congress has its merits. Perhaps we need the occasional McCain-Feingold-type insane decision from the Court to let Congress know it should take lawmaking seriously.
5.1.2009 12:10pm
Dan Weber (www):
EV really, really, severely owes me a beer.
5.1.2009 12:18pm
Mike Z (mail) (www):
"I believe they might even wait until the bill is enacted before they decide how the law is to be construed or whether it is constitutional."

That's always bothered me. When we build an airplane or a Ford, we test the bejabers out of it to see if it's airwothy or crashworthy.

Why is it we let Congress craft bills without having them stand some sort of Constitutional test? At least, more of a test than "our interns think it's OK".

I appreciate the idea of the separation of the legislative and the judicial, but it's always some poor slob who gets carted off to the hoosegow before lawyers can start debating whether he should have been jailed or not.

"Sanchez tried this move last summer and got nowhere." That's the idea. You put it up over and over again until people have had enough and vote it in just so you'll go away.
5.1.2009 7:17pm
H Tuttle (mail):
If this kind of nonsense keeps up I'll be waiting for Texas to declare itself an independent republic again. See you in Durango!
5.2.2009 9:03pm
How I Lost Thirty Pounds in Thirty Days (mail) (www):
Hi, good post. I have been wondering about this topic,so thanks for posting. I will definitely be subscribing to your blog.
5.3.2009 2:50pm
How I Lost Thirty Pounds in Thirty Days (mail) (www):
Hi, nice post. I have been pondering this issue,so thanks for writing. I will certainly be coming back to your posts.
5.3.2009 2:53pm
ME (mail):
What is it about the First Amendment that some of our elected representatives don't seem to get? If we're going to start restricting speech nilly-willy, could we start with the endless blather of know-nothing politicians?
5.4.2009 12:09pm
Joe The Plumber (mail):
But remember, liberals are for free speech!

How do we know this?

You just need to ask them...
5.4.2009 2:19pm
Glimmung:
This bill would bring an end to Fox News, Hannity, Rush, Michael Savage, etc...
5.5.2009 1:48pm

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