The Volokh Conspiracy

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Utah poised to outlaw mentioning people's names online with intent to 'abuse' or 'harass'


Yes, you read that right. Here's Utah SB118, which passed both houses of the legislature unanimously and is awaiting the governor's signature:

A person is guilty of electronic communication harassment and subject to prosecution in the jurisdiction where the communication originated or was received if with intent to intimidate, abuse, threaten, harass, frighten, or disrupt the electronic communications of another, the person: …

(e) electronically publishes, posts, or otherwise discloses personal identifying information of another person, in a public online site or forum, without that person's permission.

"Personal identifying information" is in turn defined:

"[P]ersonal identifying information" may include:
(a) name;
(b) birth date;
(c) address;
(d) telephone number;
(e) drivers license number;
(f) Social Security number;
(g) place of employment;
(h) employee identification numbers or other personal identification numbers;
(i) mother's maiden name;
(j) electronic identification numbers;
(k) electronic signatures …;
(l) any other numbers or information that can be used to access a person's financial resources or medical information …; or
(m) a photograph or any other realistic likeness.

To its credit, the bill would also remove prohibitions on certain speech intended to "annoy," "alarm" or "offend." But "intent to abuse," when applied to speech about a person, is likely to cover a good deal of constitutionally protected condemnation; consider the Black's Law Dictionary definition of "verbal abuse,"

Emotional abuse inflicted by one person on another by means of words, esp. spoken words, in a way that causes distress, fear, or similar emotions. Verbal abuse may include name-calling, insults, threatening gestures, excessive and unfounded criticism, humiliation, and denigration.

To "harass" is likewise often defined broadly, for instance "to trouble, worry, or torment." Utah law doesn't expressly define "intent to abuse" or "intent to harass" in this context, but the terms are indeed potentially broad, as these definitions show.

So if someone posts something in Utah that is intended to insult a politician or engages in "excessive and unfounded criticism, humiliation, and denigration" of the polician, that would be a crime—it would be "electronically … post[ing]" "personal identifying information" (the target's name) without his permission and with the intent to "abuse" (or perhaps "harass," especially if one does it several times). After all, "personal identifying information" may include a person's name.

Likewise if someone sharply condemns some government official, indicating the place where the official works (e.g., "Judge X in Courthouse Y is biased and incompetent"). Likewise if someone illustrates an article harshly critical of some official, businessperson, celebrity or anyone else with the person's photograph.

The purpose of the law may well be to target the release of information that rarely plays a role in legitimate criticism and that is usually kept confidential (such as a Social Security number or bank account number). But the definition of "personal identifying information" also expressly includes "name," "place of employment" and "a photograph"; nothing in the statute would preclude prosecution in the examples I described. And indeed criminal harassment laws have already been used to punish criticism of the sort I describe, as I laid out in my 2013 article and in many posts on this blog.

Plus, of course, the law would apply to a wide range of private condemnation, if a prosecutor concludes that the speaker had an "intent to abuse" or "intent to harass." A woman who posts an item to her Facebook page excoriating her ex-boyfriend online for cheating on her, for instance, might be prosecuted for posting his name online with intent to abuse. This is a badly drafted bill that I hope the governor will veto.

Thanks to Rob Latham for the pointer.