We're Not Censors, Just Crappy Legislators

Over at The Huffington Post, Rep. Linda Sanchez (D-Calif.) defends her Megan Meier Cyberbullying Prevention Act against critics who complain that it would criminalize a wide range of constitutionally protected speech. Sanchez opens with this puzzling hypothetical:

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?

Well, you might tell the harasser to leave the kid alone, but that is not quite the same as arresting him and sending him to prison for two years. Like many legislators, Sanchez thinks there are two choices when something bad happens: 1) do nothing or 2) pass a law. Yet there are many nasty things that people do to each other that are not and should not be crimes.

Throughout her essay, Sanchez implies that her bill, which was prompted by the 2006 suicide of 13-year-old Megan Meier in response to a MySpace prank in which her ex-friend's mother participated, is all about protecting the children, when in fact it applies to communications with adults as well. She also suggests a new federal law is necessary because existing laws "criminalize [harassment] when it takes place in person, but not online." That's not true either. In Massachusetts, for example, a person is guilty of criminal harassment if he "willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress." Contrary to Sanchez's claim, there is no distinction here between online and offline conduct. I assume there are other states with similar laws, and certainly it's feasible to criminalize harassment along these lines without going as far as Sanchez's bill does.

The issue is not the mode of communication but the breadth of the proscribed speech. Here is Sanchez's definition of cyberbullying:

(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.

(b) As used in this section—

(1) the term "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; and

(2) the term "electronic means" means any equipment dependent on electrical power to access an information service, including e-mail, instant messaging, blogs, websites, telephones and text messages.

This is substantially broader than the Massachusetts definition of criminal harassment, since there's no requirement that the communication "seriously alarms" the target, that it "would cause a reasonable person to suffer substantial emotional distress," or that the defendant acted "maliciously" (meaning his actions were "intentional and without justification or mitigation, and any reasonably prudent person would have foreseen the actual harm that resulted" [italics added]). Sanchez tries to narrow the range of of prohibited behavior by requiring that it be "severe." But as UCLA First Amendment expert Eugene Volokh notes, there's no telling what this means. Notwithstanding Sanchez's protestations, it arguably could apply to angry commentators, constituents, or consumers (see Volokh's post for elaboration on these scenarios).

Sanchez brags 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." Evidently Volokh was not one of them. "I try to focus my posts mostly on what people do, not on their motives," he writes, "but here the drafting is so shoddy that I just wonder why this happened." Wired's David Kravets goes further. In response to Sanchez's assurance that "Congress has no interest in censoring speech," he says Sanchez "clearly has a great interest in censoring," given the broadness of her bill.

But I think this is a case of attributing to malice what can be explained by incompetence. Here is an excerpt from the law that Missouri, where Megan Meier lived, enacted in response to her suicide:

A person also commits harassment:

1) By knowingly communicating with another person who is, or who purports to be, seventeen years of age or younger and in so doing, and without good cause, recklessly frightens, intimidates, or causes emotional distress to such other person; or

2) By engaging, without good cause, in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person's response to the act is one of a person of average sensibilities considering the person's age.

Unlike Sanchez's bill, Missouri's law partly depends on the age of the victim. In the case of someone under 18, the defendant has to act recklessly; in the case of an adult, the defendant has to be deliberately trying to frighten, intimidate, or cause emotional distress, and the target's reaction has to be "one of a person of average sensibilities." In either case, the communication must actually frighten, intimidate, or cause emotional distress, and the defendant must act "without good cause." Sanchez's bill has none of these limiting features, which makes violations easier to prosecute but also greatly magnifies the threat to protected speech.

[Thanks to John Kluge for the tip.]