Demi Moore film fans have known for years that an “indecent proposal” can undermine your marriage. In Kentucky, it may soon land you a night in jail — instead of a night with Robert Redford.
A Kentucky legislator is proposing to greatly expand the meaning of unlawful harassment, to include sending anyone a “comment, request, suggestion, or proposal” that is “filthy” or “indecent.”
Cyber-bullying, cyber-stalking and other antisocial uses of technology are provoking a flurry of state legislative responses, including some proposals that threaten to criminalize harmless behavior, and others so vague that it’s impossible to tell what they outlaw.
“Anti-harassment” bills in Kentucky, Alabama and Rhode Island — and potentially more like them — are raising concerns that, whether accidentally or purposefully, lawmakers are attempting to penalize significant amounts of constitutionally protected conduct in the name of public safety.
The most unintentionally hilarious of the efforts is in Kentucky, where a bill filed Jan. 3 and pending in the House Judiciary Committee would make it misdemeanor to send “any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, or indecent,” if the message is intended to “intimidate, harass, annoy or alarm another person.”
While federal courts have recognized that speech can be punishable if it severely and pervasively harasses someone, none has ever said that speech loses its First Amendment protection just because it is “annoying” (thankfully for Rob Schneider, Carrot Top and the cast of “Jersey Shore”). Nor has any court denied First Amendment protection to speech that is “filthy,” a term that has no legal meaning.
Sending someone a “filthy” message with the intent to “annoy” is impolite, to be sure. But “good manners” has never been the standard for constitutional protection. If Kentucky were to pass HB 129 in anything like its current form, a court would surely strike it down as unconstitutionally over-broad.
Not to be outdone, Alabama lawmakers are proposing to criminalize a broad range of conduct (for adults as well as for kids) under the umbrella of “cyberbullying.” The prohibition would include sending or posting material with the intent to “annoy” or “alarm” someone, if it causes “substantial embarrassment or humiliation” in professional or academic circles. Conviction would carry misdemeanor criminal sanctions.
The bill contains no protective language for editorial commentary, nor does it afford any greater latitude for criticism of the performance of public officials. If House Bill 400 or its Senate counterpart, SB 356, were to become law as introduced, a political candidate whose “substantially embarrassing” personal behavior was truthfully exposed on a news blog could seek criminal charges against the author. (That is, until a court threw out the law as unconstitutional, as undoubtedly would happen if a political commentator was prosecuted for disclosing “embarrassing” facts.)
Neither bill has yet advanced out of the chambers’ respective Judiciary committees.
Meanwhile, in Rhode Island, legislators appear to be backing away from an online-harassment bill imposing up to a year in jail for a first offense and felony prison time for repeat offenses.
House Bill 7042 would have made it a crime to send a series of electronic messages that “seriously alarms, annoys or bothers” the recipient. Although the statute recognized that constitutionally protected speech could not be penalized, it proposed a novel — and worrisome — mechanism for screening out meritless harassment claims.
Instead of telling police “don’t charge people with harassment if they are engaged in First Amendment-protected speech,” the bill proposed the opposite:
If a person accused under [the harassment law] claims to have been engaged in constitutionally protected activity, the court shall determine the validity of the claim as a matter of law, and if found valid, shall exclude evidence of the activity.
In other words: Arrest first, and sort out the Bill of Rights at a hearing afterward. As proposed, the mechanism was a recipe for nuisance charges against journalists and commentators by their aggrieved targets.
The House Judiciary Committee decided Feb. 8 to hold the bill for further study — which may mean it’s dead, or may mean it’s “just resting.”
There is nothing new or unique about state legislators introducing bills that they know — or should know — are constitutionally flawed and “letting the courts sort it out.” But because laws of this kind often do not get challenged in court until they are unconstitutionally applied to innocent behavior, it is fair to ask whether unsuspecting bloggers or commentators should be used as legal guinea pigs. Even a person who is confident of ultimately being exonerated is likely to self-censor if the risk of guessing wrong is a year in jail.
It’s a fascinating cultural commentary that variations of “online harassment” bans are springing up independently in so many places at once, speaking to the unease and suspicion with which many policy-makers view the social Web. Considering the outcry that derailed SOPA and PIPA — congressional proposals to police Internet piracy by allowing the government to obtain court orders shutting down websites that infringe copyright — there clearly is a hands-off-the-Internet community that is deeply skeptical of government involvement in policing online content. The backlash has yet to reach the statehouse level, but discomfort with legislated be-nice-online standards is real and pervasive, and lawmakers trifle with it at their peril.