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
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,"
The measure now heads to the state Senate, which will reconvene on