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New cyberstalking law challenged over 'annoy' language

By David L. Hudson Jr.
First Amendment Center research attorney

A Nevada company has filed a lawsuit challenging a recently enacted federal cyberstalking law that criminalizes anonymous online communications sent with “intent to annoy.”

In January, President Bush signed into law the Violence Against Women and Department of Justice Reauthorization Act of 2005, which is primarily designed to extend many provisions of the original Violence Against Women law. However, tucked into the more than 200 pages of the law was a little-noticed Section 113 titled “Preventing Cyberstalking.”

Rep. Jim McDermott, D-Wash., sought to include the language because of the horrific ordeal suffered by a Seattle woman who was harassed online. “Every woman has the right to be safe," McDermott said in a news release, "but until now cyberstalking using the Internet was outside the reach of authorities. We've changed that and made the world online safer for Joelle and everyone else.”

However, the Suggestion Box Inc., which provides a vehicle for individuals to send anonymous e-mail, contends that the new law also has criminalized much protected speech.

The provision takes language from an existing telephone-harassment law and applies it to the Internet. The law provides that anyone who makes a telephone call or uses a “telecommunications device” (now defined by the new federal cyberstalking law to include communications using the Internet) “without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person” can be fined and imprisoned.

The Suggestion Box, which has its principal place of business in Scottsdale, Ariz., contends that the “intent to annoy” language violates the First Amendment because it criminalizes a vast range of anonymous, online expression. The company is not challenging the portion of the law dealing with anonymous expression that abuses, threatens or harasses individuals.

The complaint in The Suggestion Box, Inc. v. Gonzales focuses on the fact that Section 113 does not define the word “annoy” and could criminalize much protected speech. “In some cases, if not all, anonymous, annoying speech and speech intended to be annoying constitute protected anonymous speech,” the lawsuit states. “The ambiguity, vagueness and overbreadth of Section 113 and 47 U.S.C. §223 have created uncertainty in assessing the legality of anonymous communications on the Internet.”

The lawsuit, which was filed in a federal district court in Arizona, points out that the law could even be applied to employees who file anonymous complaints under the Sarbanes-Oxley Act, a law designed in part to protect workers who blow the whistle on questionable accounting practices. According to the suit, the new cyberstalking law prohibiting annoying speech could “deter communications Congress specifically intended to encourage through the Sarbanes-Oxley Act.”

First Amendment expert Robert Richards, a law professor at Penn State, said of the new law: “Courts sometimes do not parse out a specific word that might otherwise be considered vague when the term is wrapped into a string of words whose meaning is clear. In fact, some state harassment statutes employ a string of terms, including ‘annoy.’

"On the other hand, in other contexts, such as speech codes, courts have paid attention to specific terms in the litany of prohibited expression," he said. "Nonetheless, in this particular statute, the vagueness argument alone would probably not suffice.

“Courts have been somewhat deferential to anonymous speech on the Internet.”


House subcommittee hears testimony on cyberstalking

'This is not a matter of free speech or a violation of the First Amendment,' says cyberstalking victim Jayne Hitchcock. 10.01.99

Mo. city makes online harassment a crime
Dardenne Prairie officials pass measure just days after learning that 13-year-old resident killed herself last year after receiving cruel messages on Internet. 11.26.07

Mo. lawmakers vote to bar Internet harassment
Governor praises new cyberstalking law, a response to suicide of state teen who was teased online. 05.19.08

Many state legislators take aim at cyberstalkers
‘Some of the anti-stalking efforts really amount to an assault on the right to communicate anonymously,’ says free-speech expert. 04.12.01


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