Legal Commentary

Louisiana Bill Would Outlaw Insulting an Under-17-Year-Old By E-Mail

By Eugene Volokh

The Louisiana House bill ? passed by a 12?0 vote in committee, and scheduled for floor debate this Wednesday ? would make it a crime (up to 6 months in jail for the first offense, up to a year for the second, and up to three years for the third), to transmit by ?any ... means of electronic communication?

any electronic textual, visual, written, or oral communication with the intent to coerce, abuse, torment, intimidate, frighten, harass, embarrass, or cause emotional distress to a person under the age of seventeen.

So if a 16-year-old e-mails her boyfriend telling him that he?s a scumbag for cheating on her, and that he should feel ashamed of himself, she would be a criminal: She would be transmitting a written communication with the intent to cause emotional distress to a person under the age of seventeen.

If a newspaper or blog publishes an article harshly condemning a 16-year-old criminal, its writers and editors would also be criminals: They would be transmitting a written electronic communication (assuming the newspaper?s content is available online), and probably done so with the intent to embarrass or cause emotional distress to the 16-year-old.

If someone writes a newspaper article or blog post seeking to ?scare kids straight,? and away from sex, drugs, gangs, or what have you by frightening them by the possible consequences of their conduct, they would probably be criminals: They would be transmitting a written communication with the intent to frighten persons under the age of seventeen.

Naturally, some people might try to defend this on the grounds that prosecutors won?t apply the statute as broadly as it?s written, but will instead focus just on ?extreme? cyberbullying; but I think Chief Justice Roberts? majority opinion in last week?s United States v. Stevens is instructive here:

Not to worry, the Government says: The Executive Branch construes §48 to reach only ?extreme? cruelty, and it ?neither has brought nor will bring a prosecution for anything less,? The Government hits this theme hard, invoking its prosecutorial discretion several times. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.

Thanks to Patrick Martin for the pointer. UPDATE: Note that it?s not completely clear whether ordinary telephone conversation would be covered, since ?electronic communication? might be read to include only communication through more modern electronic media (based on the text of the definition, available here, and the principle of ejusdem generis). But telephone calls placed over the Internet would indeed be covered.

Full post as published by The Volokh Conspiracy on April 26, 2010 (boomark / email).