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Michigan House passes Internet 'harassment by proxy' bill

By David Hudson
The Freedom Forum Online
10.11.00

The Michigan House recently passed a bill designed to punish individuals who encourage others to harass third parties online.

Michigan House Bill No. 6052, introduced last month by Rep. Jim Howell, cleared the House on Oct. 4. The bill prohibits posting messages on the Internet with the knowledge "that conduct arising from posting the message could cause harm" to another.

"With every ground-breaking technology advance comes an opportunity for people to use it for illicit purposes," Howell said in a news release. "This is another instance where we have to be ready to punish those who would harm others and even enlist other possibly unsuspecting people to help conduct their campaign of harassment."

The bill would prohibit messages intended to "cause conduct that would make the victim feel terrorized, frightened, intimidated, threatened, harassed, or molested."

Violators would be subject to one year in prison and a $2500 fine. If the target of the harassment is younger than 18 and the violator is at least five years older than the victim, the penalties would increase to two years in prison and a $10,000 fine.

If the offender posted the harmful information in violation of a known restraining order or if the message violated a condition of the offender's parole, the penalty would increase to five years imprisonment.

The Michigan House Legislative Analysis Section notes that the bill is an effort to prohibit "harassment by proxy." "The harassing or threatening actions would not have to be committed by the wrongdoer or anyone directly associated or even known to the wrongdoer," according to the analysis.

Numerous states have considered ways to battle Internet stalking since February 1999 when Vice President Al Gore asked the U.S. attorney general to study the problem of cyberstalking.

Robert O'Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression, says the Michigan measure raises constitutional concerns. "The bill would probably be constitutional if it just dealt with situations where A harassed B via electronic communications," he said. "However, this bill deals with the situation where A gets B to harass C over the Internet."

O'Neil says that because such legislation attempts to criminalize incitement, it must meet the standard articulated by the U.S. Supreme Court in its 1969 decision Brandenburg v. Ohio. In Brandenburg, the high court reversed the conviction of a Ku Klux Klan leader who gave a speech at a Klan rally spouting hateful ideas about various groups of people.

The high court wrote that the state cannot "forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

O'Neil says that the proposed legislation does not conform to the Brandenburg standard. Under the bill, "any inflammatory, incendiary statements which cause harm could be punished — a result inconsistent with U.S. Supreme Court case law," he said.

The measure now heads to the state Senate, which will reconvene on November 9.


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