Cybertormenting Now Illegal in Louisiana
Louisiana has a new law on the books that outlaws “any electronic textual, visual, written, or oral communication with the malicious and willful intent to coerce, abuse, torment, or intimidate a person under the age of eighteen.”
This is a statute aimed at “cyberbullying,” the increasingly common use of text messages and social media as a vehicle for teenage taunting. The issue caught its first big headlines with the Lori Drew case. The case against the Missouri woman hailed into court in California for suicide-inducing internet harassment was a stretch of an existing federal statute that was ultimately thrown out. The government continues to contend that violating a website’s terms of service is a federal crime.
The federal cyberbullying statute proposed last year was a monstrosity. Felony time (up to two years) for a statute that will primarily be used against minors is excessive. There is no dedicated federal juvenile justice system, and this is not a good excuse to create one. Harvey Silverglate, Cato Adjunct Scholar and author of Three Felonies a Day: How the Feds Target the Innocent, testified at the hearings last fall.
The state laws aimed at cyberbullying are generally less onerous than the proposed federal one. The crime is a misdemeanor, and offenders under the age of seventeen are directed to the juvenile justice system. As Eugene Volokh points out, this law is still pretty bad:
Would publishing an online editorial — or a blog post — condemning an underage criminal for his crimes qualify as “malicious and willful intent to … abuse [or] torment”? Or would it not be “malicious” because it would be justified by righteous indignation (in which case I take it courts would have to decide what indignation is righteous and what is not)? Note that the law isn’t limited to messages sent only to the target, but includes speech published to the world at large as well.
Would sending a message castigating an ex-lover for cheating (assuming both the ex-lover and the sender are 17) qualify as “malicious and willful intent to … abuse [or] torment”? What if the message “speak[s] insultingly, harshly, and unjustly” (unjustly, that is, in the view of the judge), which is the dictionary definition of “abuse” that seems most relevant to speech?
So either the law is too broad, or it will be narrowed only by reading “malicious” as limited to speech that courts dislike — which raises the risk of impermissible content and viewpoint discrimination. And until the narrowing takes place (and maybe even after that), the law will be remarkably vague.
The exception for religious speech is also probably unconstitutional, because it treats nonreligious speech worse than religious speech. Cf. R.A.V. v. City of St. Paul (holding that content-based distinctions are presumptively unconstitutional even when they operate within an unprotected category of speech).
Volokh has provided excellent coverage of the development of this law — from proposal, to adoption, and even the scrivener’s error that purports to protect free speech from cyberbullying charges via the state constitution’s right-to-bail provision. He coined the “cybertormenting” term as well, which has the rhetorical flair appropriate for a legislative overreach of this magnitude.
John Paul Stevens, Defender of High-Tech Freedom
I’m saddened to hear of the retirement of Justice John Paul Stevens. Whatever you might say about his jurisprudence in other areas, one place where Justice Stevens really shined was in his defense of high-tech freedom.
Justice Stevens wrote the majority opinion in some of the most important high-tech cases of the last four decades. In other cases, he wrote important (and in some cases prescient) dissents. Through it all, he was a consistent voice for freedom of expression and the freedom to innovate. His accomplishments include:
- Free speech: Justice Stevens wrote the majority decision in ACLU v. Reno, the decision that struck down the infamous Communications Decency Act and clearly established that the First Amendment applies to the Internet. In the 13 years since then, the courts have repeatedly beat back attacks on free speech online. For example, Justice Stevens was in the majority in ACLU v. Ashcroft, the 2004 decision that struck down another attempt to censor the Internet in the name of protecting children.
- Copyright: Justice Stevens wrote the majority opinion in the 1984 case of Sony v. Universal, the case in which the Supreme Court upheld the legality of the VCR by a 5-4 vote. The decision, which today is known as the “Betamax decision” after the Sony VCR brand, made possible the explosion of digital media innovation that followed. When the recording industry tried to stop the introduction of the MP3 player in 1997, the Ninth Circuit cited the Betamax precedent in holding that “space shifting” with your MP3 player is permitted under copyright’s fair use doctrine. The iPod as we know it today probably wouldn’t exist if Sony had lost the Betamax case. Justice Stevens also wrote an important dissent in the 2003 decision of Eldred v. Ashcroft, in which he (like the Cato Institute) argued that the Constitution’s “limited times” provision precluded Congress from retroactively extending copyright terms.
- Patents: The explosion of software patents is one of the biggest threats to innovation in the software industry, and Justice Stevens saw this threat coming almost three decades ago. Stevens wrote the majority decision in the 1978 case of Parker v. Flook, which clearly disallowed patents in the software industry. Three years later, Stevens dissented in the 1981 case of Diamond v. Diehr, which allowed a patent on a software-controlled rubber-curing machine. Although the majority decision didn’t explicitly permit patents on software, Stevens warned that the majority’s muddled decision would effectively open the door to software patents. And he has been proven right. In the three decades that followed, the patent-friendly U.S. Court of Appeals for the Federal Circuit has effectively dismantled limits on software patents. And the result has been a disaster, with high-tech firms being forced to spend large sums on litigation rather than innovation.
So if you enjoy your iPod and your uncensored Internet access, you have Justice Stevens to thank. Best wishes for a long, comfortable, and well-deserved retirement.
Socialists Shouldn’t Have to Admit Libertarians Into Their Club
Hastings College of the Law, a public law school in California, has a policy prohibiting discrimination on the basis of “race, color, religion, national origin, ancestry, disabilities, age, sex or sexual orientation.” In 2004, the Christian Legal Society, a religious student organization at the school, applied to become a “recognized student organization” — a designation that would have allowed CLS to receive a variety of benefits afforded to about 60 other Hastings groups. While all are welcome to attend CLS meetings, CLS’s charter requires that its officers and voting members abide by key tenets of the Christian faith and comport themselves in ways consistent with its fundamental mission, which includes a prohibition on “unrepentant” sexual conduct outside of marriage between one man and one woman.
Hastings denied CLS registration on the asserted ground that this charter conflicts with the school’s nondiscrimination policy. CLS sued Hastings, asking for no different treatment than is given to any registered student group. The district court granted Hastings summary judgment and the Ninth Circuit affirmed. The Supreme Court granted certiorari to determine whether Hastings’s refusal to grant CLS access to student organization benefits amounted to viewpoint discrimination, which is impermissible under the First Amendment.
Yesterday Cato filed an amicus brief supporting CLS — authored by preeminent legal scholar Richard Epstein – in which we argue that CLS’s right to intimate and expressive association trump any purported state interest in enforcing a school nondiscrimination policy. While Hastings may impose reasonable restrictions on access to limited public forums, it should not be allowed to admit speakers with one point of view while excluding speakers who hold different views. Our brief also discredits Hastings’s assertion that its ability to exclude the public at large from school premises renders their content-based speech restrictions constitutional.
We urge the Court to safeguard public university students’ right to form groups – which by definition exclude people – free from government interference or censorship. (Of course, our first choice would be for the government to get out of the university business and our second choice would be to stop forcing taxpayers to pay for student clubs, but given those two realities — as in the case at hand – freedom of association is the way to go.)
The New Threats to Free Speech
In a new Policy Analysis, Cato Research Fellow Jason Kuznicki examines the ongoing threats to free speech both at home and around the world, from hate-speech laws in the United Kingdom and Canada and university speech codes in the United States, to the Cairo Declaration on Human Rights in Islam:
The result is not more happiness, but a race to the bottom, in which aggrieved groups compete endlessly with one another for a slice of government power. Philosopher Robert Nozick once observed that utilitarianism is hard-pressed to banish what he termed utility monsters—that is, individuals who take inordinate satisfaction from acts that displease others. Arguing about who hurt whose feelings worse, and about who needs more soothing than whom, seems designed to discover—or create—utility monsters. We must not allow this to happen.
Instead, liberal governments have traditionally relied on a particular bargain, in which freedom of expression is maintained for all, and in which emotional satisfaction is a private pursuit, not a public guarantee. This bargain can extend equally to all people, and it forms the basis for an enduring and diverse society, one in which differences may be aired without fear of reprisal. Although world cultures increasingly mix with one another, and although our powers of expression are greater than ever before, these are not sound reasons to abandon the liberal bargain. Restrictions on free expression do not make societies happier or more tolerant, but instead make them more fractious and censorious.
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