Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

January 11, 2006

More On Regulating Anonymous Internet Speech

by Doug Mataconis

I wrote yesterday , as did Chris in a post here, about a provision attached to the Violence Against Women Act which appears to outlaw anonymous “annoying” speech on the Internet. Not surprisingly, it has been the subject of much discussion today, and a little bit of second-guessing.

At The Volokh Conspiracy, Orin Kerr takes a skeptical look at the alleged threat to online liberty and comes away unimpressed. First, Kerr says, the existing law isn’t as bad as it sounds:

It turns out that the statute can only be used when prohibiting the speech would not violate the First Amendment. If speech is protected by the First Amendment, the statute is unconstitutional as applied and the indictment must be dismissed. An example of this is United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999). In Popa, the defendant called the U.S. Attorney for D.C on the telephone several times, and each time would hurl insults at the U.S. Attorney without identifying himself. He was charged under 47 U.S.C. 223(a)(1)(C), and raised a First Amendment defense. Writing for a unanimous panel, Judge Ginsburg reversed the conviction: punishing the speech violated the Supreme Court’s First Amendment test in United States v. O’Brien, 391 U.S. 367 (1968), he reasoned, such that the statute was unconstitutional as applied to those facts.

Under cases like Popa, 47 U.S.C. 223(a)(1)(C) is broad on its face but narrow in practice. That is, the text looks really broad, but prosecutors know that they can’t bring a prosecution unless doing so would comply with the Supreme Court’s First Amendment cases.

Okay, that sounds somewhat reassuring, but what about the new portion of the law ?

The new law simply expands the old law so that it applies to the Internet as well as the telephone network. It does this by taking the old definition of “telecommunications device” from 47 U.S.C. 223(h), which used to be telephone-specific, and expanding it in this context to include “any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet.”

Kerr also points to this article which asserts that the new provisions of the law are about applying the existing law to Voice Over IP (VOIP) technology, nothing more and nothing less. Therefore, Kerr believes that much of the reaction to the new legislation is, in fact, over-reaction.

At the same time, however, Kerr’s fellow conpsirator Eugene Volokh isn’t quite as sanguine about the situation.

[O]n balance I think the extension of the telephone harassment statute to the Web is a mistake. The statute already has problems, and the extension risks substantially exacerbating those problems, by potentially covering one-to-many annoying Web speech as well as the somewhat less valuable one-to-one annoying telephone calls.

Who’s right ? I’m not sure, but I tend to fall into Eugene’s camp on this one. And I personally wonder why harrassment over the telephone needs to be the subject of a federal law to begin with.

Originally posted at Below The Beltway

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