What’s happening — in this case and in some others, such as the abortive Renton prosecution related to videos that mocked certain police officers — is something that I warned about in this 1996 University of Chicago Legal Forum article: Narrow speech restrictions, such as restrictions on telephone harassment, stalking, and other unwanted contact, are now being broadened from essentially one-to-one contact (an insulting phone call, coming up to someone to berate them, sending continued unwanted mail or e-mail) to one-to-many contact (blog posts, tweets, messages readable by everyone in a chat room or on a discussion list, and so on).Making genuine threats might be one thing. But it seems that there should be a line between that and prosecuting somebody for being a jackass.
The old narrow restrictions might well be constitutional (see, e.g., Rowan v. U.S. Post Office Department), but precisely because they deal with essentially one-to-one speech — restricting such unwanted speech to an unwilling listener leaves the speaker free to keep talking to other, potentially willing listeners. But they are now being expanded to cover not just insults said to a person, but also insults said about the person to the public at large. To be sure, such one-to-many speech can be just as offensive as one-to-one speech (and perhaps sometimes more so). But it is much more constitutionally valuable, precisely because it can reach potentially willing listeners. And suppressing it unconstitutionally blocks communication to such potentially willing listeners.
And of course this case is yet another illustration that the various proposed anti-bullying bans, which — like the federal statute — on their face apply to a wide range of speech will indeed often be applied to speech about government officials (consider the Berea, Renton, and Hawthorne incidents discussed here) and other public figures (consider the Berea incident as well as this one). I think even speech on matters of private concern should generally be constitutionally protected. But these laws can apply to speech on matters of public concern as well, and are indeed being so applied.
Sunday, August 28, 2011
Eugene Volokh is concerned about the implications of this case when it comes to the powers that be and free speech: