March 14, 2013 | By Hanni Fakhoury

With VAWA, A Major Step Forward in Combating Violence, But Constitutional Concerns Remain

It's hard to think of a more worthy goal than combating domestic violence. With its recent reauthorization of the Violence Against Women Act (VAWA) (PDF), Congress created and expanded federal programs to assist local communities and victims deal with domestic and sexual abuse. But along with these great ideas, Congress unfortunately made some big mistakes that could hurt a lot of Internet speech.

To combat cyberstalking and harassment, VAWA amends two federal statutes dealing with online speech and communication. Despite unquestionably noble intentions, Congress ended up violating the First Amendment trying to implement important protections for the hundreds of thousands of people hurt by domestic violence every year.

"Harassment" Statutes Don't Have to Violate the First Amendment

Laws aimed at criminalizing harassment and stalking have been a part of penal codes long before the Internet. These laws didn't violate the First Amendment for two reasons.

First, the First Amendment doesn't prohibit the government from criminalizing non-speech conduct surrounding speech. In United States v. O'Brien, the Supreme Court found a law that criminalized burning a draft card did not violate the First Amendment because although the act of burning the card carried symbolic meaning -- opposition to the Vietnam War -- the statute was really aimed at prohibiting conduct, specifically destroying a government record needed for military administration.

In the context of harassment laws, that meant statutes that targeted conduct rather than speech passed First Amendment scrutiny. For example, in 1995 Washington's telephone harassment statute survived a First Amendment challenge because the "gravamen of the offense is the thrusting of an offensive and unwanted communication upon one who is unable to ignore it" rather than the actual words spoken on the phone. 

Second, the First Amendment doesn't protect "true threats," which are statements meant "to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." So harassment statutes that criminalize this type of violent, menacing speech also pass First Amendment scrutiny. For example, California Penal Code § 422 criminalizes threatening 

to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety...

Because the speech covered under the law is tied to a threat to cause death or serious physical injury, the California Supreme Court has found no First Amendment problems with the section 422.

These statutes are just simple examples of the myriad ways legislatures can protect people from harassment and violence without running afoul of the First Amendment. Yet, Congress strayed beyond these boundaries with its changes to two criminal laws: cyberstalking and anonymous online harassment.

Cyberstalking

Before 2006, the federal anti-stalking statute, 18 U.S.C. § 2261A, made it a crime to intentionally put another person in reasonable fear of death or serious injury. Clearly, this was permissible under the First Amendment because it criminalized "true threats." But in 2006, Congress amended § 2261A to cover "cyberstalking." Now, the statute criminalized anyone who

...uses the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to that person or places that person in reasonable fear of the death of, or serious bodily injury...

These changes strayed the statute from what is permissible under the First Amendment. By allowing criminal liability for causing "substantial emotional distress," the law was dangerously vague as it hinged on a person's subjective state of mind rather than an objective threat to do harm. Contrast that with the California statute quoted above that requires the statement to be "so unequivocal, unconditional, immediate, and specific" that it conveys "a gravity of purpose and an immediate prospect of execution of the threat," ultimately putting a person in reasonable fear of their own safety. California makes it abundantly clear what type of threat will land a person in prison. But § 2261A's subjective standard meant a person may not know whether something he says online will attract the attention of law enforcement. Coupled with the broad discretion given to federal prosecutors, which as we've recently seen can be a very dangerous thing, prosecutors could make charging decisions based on hurt feelings, rather than actual threats. 

And to be clear, this isn't some hypothetical problem. In a 2011 case -- United States v. Cassidy -- federal prosecutors charged a man with violating § 2261A because of his criticism of a religious leader on Twitter. We filed an amicus brief and the trial court ultimately dismissed the case, finding § 2261A violated the First Amendment in that specific instance, without addressing the statute as a whole. It was our sincere hope that Congress would amend the statute to make it narrower after this decision made it clear there were constitutional problems with § 2261A.

Instead, as we've warned before, VAWA makes § 2261A broader, extending the statute to now cover speech made with the intent to harass that "attempts to cause, or would be reasonably expected to cause substantial emotional distress." The "substantial emotional distress" element of § 2261A is now more subjective, sweeping in more speech.  Even worse, although VAWA is meant to protect victims of domestic violence, this change in the law could be used to target online criticism of politicians and other high profile people. And while there's no doubt that online threats of violence should absolutely be criminalized, these changes to § 2261A go far beyond unprotected "true threats."

Anonymous Online Speech

Another part of VAWA that's constitutionally problematic, particularly to online critiques of public figures, is its amendment of 47 U.S.C. § 223(a)(1)(C), which prohibits anonymously making harassing calls or online communications. It specifically criminalizes anyone who

...makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications...

This portion of the statute clearly targets anonymous online speech, and uses some traditionally overbroad, hard to define and subjective words like "annoy" and "harass." VAWA makes one good change by eliminating the word "annoy." But it also eliminates § 223(a)(1)(C)'s requirement that the defendant "harass any person at the called number or who receives the communications" and instead only requires the defendant "harass any specific person."

What that means is that an online speaker can violate the law not simply by engaging in unprotected conduct directly aimed at the target and intended to place them in fear. Rather, a person can end up in prison for the simple act of speaking -- and nothing more -- about a person to the general public on a platform like Twitter or a blog, even if the target doesn't receive the speech.

The court in Cassidy found this idea constitutionally problematic: a person is free to disregard something said on Twitter in a way far different than a person who is held in constant fear of the persistent ringing of a telephone intruding in their home. In those instances where people can turn away to avoid offending speech, the Supreme Court has made clear society "is expected to protect our own sensibilities simply by averting our eyes." The First Amendment is not supposed to restrict speech in order "to shield the sensibilities of listeners." And while that oftentimes leads to much of the extreme and offensive speech that occurs online, as the Supreme Court emphasized in United States v. Stevensthe right to free speech is not determined by balancing the societal costs and benefits of the speech. That balancing was done long ago when our country decided the benefit of restricting the government's ability to silence people or ideas -- even rude or offensive ones -- outweighed the costs.  

Well Intentioned Laws Can Still Violate the Constitution

We're not the only ones concerned with these changes to the law; Professor Eugene Volokh has also warned about the constitutional problems with VAWA's amendments to these two statutes. Obviously, we want to see Congress take steps to protect women from harassment and violence. But these provisions are written in a way that could stifle important debate about issues of the day, which unconstitutionally infringes on free speech. Passing VAWA without these changes would have not only protected scores of people from the plague of domestic violence, but also ensured they maintained their First Amendment freedoms too.


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