By David L. Hudson Jr.
First Amendment scholar
In 1990, California passed the first anti-stalking law in response to the brutal murder of actress Rebecca Schaeffer by a deranged fan. By 1993, all 50 states had passed anti-stalking laws. But, today many people are stalked not only in the physical world, but also in cyberspace.
Some anecdotal evidence suggests that cyberstalking or online harassment can lead to actual physical stalking and harm. To combat this problem, numerous states have passed cyberstalking laws. According to the National Conference of State Legislatures, 44 states now have some form of cyberstalking or computer-harassment law on the books.
Many states amended their stalking statutes after the attorney general’s office under Janet Reno submitted a report to then-Vice President Al Gore, “Cyberstalking: A New Challenge for Law Enforcement and Industry” in August 1999.
The report identified online stalking as “a serious and growing problem.” The report made several “legislative recommendations,” including: “States should review their existing stalking and other statutes to determine whether they address cyberstalking and, if not, promptly expand such laws to address cyberstalking.”
The report did recognize that statutes drafted too broadly could infringe on First Amendment freedoms. “Care must be taken in drafting cyberstalking statutes to ensure that they are not so broad that they risk chilling constitutionally protected speech, such as political protest and other legitimate conduct,” the report reads. “A carefully drafted statute can provide broad protections against cyberstalking without running afoul of the First Amendment.”
The cyberstalking measures are a response to a perceived need to protect people from the harassing behavior people confront when they visit sites online. Unlike offline stalkers, Internet stalkers do not need to be near their victims geographically.
Many of the new statutes amend existing stalking laws to prohibit threatening behavior over the information superhighway. Most use the term cyberstalking. Others call the problem “computer harassment.” Most of these new laws require that, for online communications to be considered “stalking,” they must harass a person and place that person in reasonable fear for his or her safety.
Constitutionality of cyberstalking legislation
The courts have upheld stalking legislation that deals with threats because the First Amendment does not protect true threats. But some of the measures go beyond punishing true threats and proscribe “annoying” speech.
For example, North Carolina’s cyberstalking statute provides in part:
“(a) It is unlawful for a person to:
“(1) Use in electronic mail or electronic communication any words or language threatening to inflict bodily harm to any person or to that person’s child …
“(2) Electronically mail or electronically communicate to another repeatedly, whether or not conversation ensues, for the purpose of abusing, annoying, threatening, terrifying, harassing, or embarrassing any person.” — NCGA Sec. 14-196.3 Cyberstalking
First Amendment expert Robert Richards, founding co-director of the Pennsylvania Center for the First Amendment at Penn State, says the first part of the statute applies to true threats conveyed through the Internet. “The threat portion will most likely survive a constitutional test,” he says. “Clearly, courts have upheld the concept of a ‘true threat’ when communicated directly to a person, even through e-mail.”
But Richards says “the statute is not very well thought through — or at least (not well) drafted.” He points to subsection (a)(2), cited above, which prohibits “annoying” and “embarrassing” communications.” “The statute falls apart when the Legislature seeks to proscribe ‘embarrassing’ communications,” Richards said. “How does North Carolina define that one? There is no possible way for someone, through the plain meaning of the term, to discern the myriad types of communications that may be embarrassing. Clearly, that's a subjective standard if there ever was one.”
David Sobel, general counsel for the Electronic Privacy Information Center, says the movement to enact cyberstalking and computer-harassment laws contains potential perils for those concerned with free speech.
“I agree that the Internet shouldn’t be a safe haven for activities that should otherwise be prohibited,” he said. “However, I do have a problem where the legislation is not technology-neutral and singles out the Internet or any other form of communication.
“Some of the anti-stalking efforts really amount to an assault on the right to communicate anonymously,” Sobel said. “We at EPIC feel very strongly about this right because it is at the intersection of privacy and free speech.”
Despite these concerns, the push for cyberstalking legislation continues at an accelerated pace. First Amendment advocates hope the rush to solve the problem of cyberstalkers will not result in a loss of free expression.
The constitutionality of such legislation will likely be determined by various state and federal courts in the near future.