A little-noticed bill re-introduced in Congress last month would make the use of popular electronic communications a felony if “the intent is to coerce, intimidate, harass, or cause substantial emotional distress to a person.”
Given the free-wheeling exchanges that characterize everything from SMS text messages and instant messaging, to blogs and Web site comments, the broadly written bill potentially could turn a lot of flamers and bloggers into felons. If convicted, they would face fines (no amounts given) and prison sentences up to two years.
The bill is H.R. 1966, filed April 2 by Rep. Linda Sanchez, a liberal Democrat for California’s 39th district, a horseshoe-shaped patch around Los Angeles, from Whittier through Ceritos to Lynnwood. She was joined by 14 other congressmen. It's been referred to the House Committee on the Judiciary.
The bill has recently begun to receive attention, much of it critical, in the online community. Greg Pollowitz, at National Review Online’s Media Blog, labeled it the “Censorship Act of 2009.”
In fact, some of the comments could even be construed as intended to cause emotional distress under the bill's loosely defined language. Sanchez earlier this week sought to explain and defend the proposal online at HuffingtonPost.com, a political blog that is generally considered liberal. One response to her post was by “radmul,” who wrote, “No offense congresswoman but you can't handle prosecuting war criminals for torture so you have no right to bring your lack of ethics to the Web.” Another comment, from “dubster,” attacked still another poster who blamed the Megan Meier tragedy on “bad parenting”: “I detest jerks like you, that can't comprehend the gravity and severity of certain things.”
HR 1966 is Sanchez' second attempt (she first filed in May 2008) to enact the “Megan Meier Cyberbullying Prevention Act,” a reference to a Missouri 13-year-old who in 2007 killed herself, apparently in despair over a bullying campaign organized against her on MySpace. A federal grand jury brought indictments against one of the teens involved, but the trial jury reduced three of the four felony counts to misdeameanors, and deadlocked on the fourth.
Incidents like these have spawned local school policies and state laws against cyberbullying. At least 13 states have passed laws, including California earlier this year. But many of these require only administrative actions, such as suspending or expelling students. And all of them raise the issue of where to draw the line between protecting kids from electronic harassment and protecting the right to free speech.
Given the potential First Amendment issues, the language in HR 1966 is as brief as it is broad. It reads:
(a) 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.
The bill defines “communication” as “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” is defined as “any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, Web sites, telephones, and text messages.”
HR 1966, formally an amendment to Title 18, “Crimes and Criminal Procedure,” of the U.S. Code, does not define any other term, including “severe emotional distress,” “hostile” or even “behavior.”
“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,” wrote Eugene Volokh, the Gary T. Schwartz Professor of Law at UCLA School of Law, and blogger in chief at The Volokh Conspiracy, an online legal blog.
Volokh offered six quick sketches of the kinds of activities that could be prosecuted if HR 1966 becomes law, including trying to pressure a politician, organizing a boycott against a company with whose policies you disagree, or even sending angry e-mails to an unfaithful lover.
A blogger trying to coerce an elected official into voting one way on a bill repeatedly posts “using a hostile tone” about what a “hypocrite/campaign promise breaker/fool” the official would be if he voted the other way, Volokh writes. “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,’” Vokokh writes.
A woman discovers her lover is unfaithful and wants him to “feel like the scumbag he is,” Volokh writes. If she sends her unfaithful lover two hostile e-mail messages telling him that in no uncertain terms, even without threatening violence, she “is transmitting communications with the intent to cause substantial emotional distress, using electronic means ‘to support severe, repeated, and hostile behavior,’” Volokh writes.
To say the Sanchez bill has not yet garnered widespread support, or even attention, is an understatement. For example, even the Megan Meier Foundation appears unaware of the bill bearing the teenager’s name: There is no reference to HR 1966 on the Web site. The Foundation’s mission is to “bring awareness, education, and promote change to children, parents and educators in response to the ongoing bullying and cyber-bullying in our children’s daily environment.”
Cyberbullying.us, a blog by two criminal justice professors to focus on “identifying the causes and consequences of online harassment, this week also took note of the bill’s flaws. “As I have stated before, I am not convinced that a state or federal law which criminalizes cyberbullying is necessarily the best approach,” writes Justin Patchin, assistant professor of criminal justice, Department of Political Science at the University of Wisconsin-Eau Claire. “The vast majority of all cyberbullying can be effectively handled informally — by parents, educators, and other community members. In the rare event that a cyberbullying incident rises to a level warranting criminal intervention, we already have existing laws which can be utilized (stalking, criminal harassment, felonious assault, etc.).”
In an e-mail, Patchin's co-blogger, Sameer Hinduja, assistant professor with the
Department of Criminology and Criminal Justice, Florida Atlantic University, says the bill's vagueness works against what it's trying to accomplish.
“We need to render more concrete many of the clauses in the bill - we can't just assume that a reasonable person will feel the same way about every cyberbullying case that surfaces,” Hinduja says. “Volokh's examples in his recent blog underscore the variety of scenarios subject to differing interpretations. Plus - just like with the sexual predator craze - societal and governmental sentiment towards the phenomenon will vary based on sensationalistic news stories and emotion. That will lead to inconsistent justice.”
In her Huffington Post commentary this week, Sanchez begins by appealing to a sense of justice and to the defense of children.
“If you were walking down the street and saw someone harassing a child, would you just walk by and look the other way? If that person was telling the child the world would be better off if they just killed themselves, would you ignore it?” she writes. “This is what is happening on the Internet except it is more painful, and can be more abusive because of the faceless anonymity the web provides. Bullies are using technology in ways we could not have imagined only years ago, and studies show that outdated and erroneous beliefs that bullying is "harmless" downplay its true seriousness.”
Volokh critiqued Sanchez’ defense in an e-mail response to a Network World inquiry (and later blogged his comments), again focusing on the First Amendment implications. Using “vulnerable children” to justify the law, as Sanchez does, obscures the fact that “nothing in the law [HR 1966] is at all limited to children,” he says.
“Nor is it limited to individually targeted statements; it also covers newspaper articles on the Web, blog posts, and a wide range of other speech aimed at the public,” Volokh says. “Sanchez also twice mentions the ‘anonymity’ of the Internet, but the [proposed] law is not at all limited to anonymous statements.”
There are constitutionally recognized limits on free speech, Sanchez argues in Huffington Post. “Current Supreme Court jurisprudence already recognizes some reasonable regulation of speech is consistent with the First Amendment,” she writes. “For example, the Court has found that true threats, commercial speech, slander, and libel can be reasonably restricted consistent with the Constitution.”
“[I]t's true that the Court has recognized that true threats of violence are legally punishable,” responds Volokh. “But that narrow exception hardly applies to ‘severe, repeated, and hostile’ speech that's 'inten[ded] to coerce, ... harass, or cause substantial emotional distress.' In fact, the Court has repeatedly held that even speech that’s coercive – for instance, through fear of social ostracism – and extremely distressing is constitutionally protected, even against mere civil liability. See NAACP v. Claiborne Hardware (1982); Hustler Magazine v. Falwell (1988). The Court has never accepted the notion that the narrow and historically recognized exceptions to protection [of speech] justify a broad range of ‘reasonable regulation of speech.’”
Sanchez notes that “Slander and libel law provide for different standards when the injured party is a public official or private person, and nothing in the Megan Meier Cyberbullying Prevention Act attempts to override that principle.”
“But nothing in her proposal would draw any distinctions between public and private figures,” Volokh says. “Nor would that be adequate, because even emotionally distressing speech about private figures is often constitutionally protected, as Claiborne and many other cases make clear.”
HR 1966 emphasizes granting “discretion” for judges and juries “to recognize the difference between an annoying chain email, a righteously angry political blog post, or a miffed text to an ex-boyfriend and serious, repeated, hostile communications made with the intent to harm,” Sanchez writes.
But such broad discretion is problematic, and for good reason, according to Volokh. “…[T]o the extent that Sanchez relies on case-by-case judicial and jury discretion, First Amendment law makes absolutely clear that one can’t just rely on that,” he says. “If the law [i.e., HR 1966] is said to be constitutional because it’s narrowly limited, the limiting principles must be present in the law itself, rather than just being left to judges and juries to impose based on their own sense of what should be protected.”
“More importantly, Sanchez draws a false dichotomy between 'a righteously angry political blog post' or ‘a miffed text to an ex-boyfriend’ [on the one hand] and ‘serious, repeated, hostile communications made with the intent to harm’ [on the other],” Volokh says. “What about serious, repeated, hostile righteously angry political blog posts made with the intent to coerce a politician to change her policies, or to substantially distress a politician whom the speaker is angry at, and the felonious 'serious, repeated, hostile communications made with the intent to harm'? What about serious, repeated, hostile messages to an ex-boyfriend explaining how much he has hurt you?”
In her online post, Sanchez writes that she “consulted with a variety of experts and law professors in crafting this bill to preserve our American freedom of speech and protect victims of cyberbullying.”
“I would like to see even one statement from her 'variety of experts and law professors' that would explain how this law is constitutional,” Volokh says.