Legal Commentary

Proposed Louisiana Law Would Ban Any Online Speech Intended to ?Embarrass, or Cause Emotional Distress? to an Under-17-Year-Old

By Eugene Volokh

The bill (HB1259) ? which passed the state House of Representatives by a 78?16 vote , and has cleared the state Senate Committee on Judiciary C ? would make it a misdemeanor to transmit any Internet communication or other computer communication ?with the intent to coerce, abuse, torment, intimidate, harass, embarrass, or cause emotional distress to a person under the age of seventeen.? This applies without regard to whether the message is communicated to the person, to some other individuals, or to the public at large. So under the law, all of these would likely be criminals (though, under a recent amendment the adults could be jailed for up to a year, while the minors could be jailed for up to six months): 

• A girl who sends her under-17-year-old boyfriend an e-mail telling him what a schmuck he is for having cheated on her, and hoping that he feels ashamed of himself.
• A blogger, or a newspaper columnist, or an online commentator, who publishes something condemning an under-17-year-old criminal, hoping the criminal feels embarrassed and ashamed as a result.
• A public or private school official e-mailing the parents of an under-17-year-old student a message about the student?s misbehavior, hoping that the student will feel embarrassed and change his ways.
• Parents e-mailing their under-17-year-old children telling the children that they should feel ashamed of some misbehavior.
• A professional or amateur music critic or sports reporter writing a harsh review of an under-17-year-old performer?s or athlete?s behavior, hoping that the review will embarrass the performer or athlete into behaving more ethically, professionally, or competently.

If a legislature thinks there?s a particular class of highly dangerous speech to or about children that needs to be criminalized, it should identify that class, and we can discuss whether a ban on that class of speech is constitutional and practically justified. But this proposal, like others in other jurisdictions, is ridiculously and unconstitutionally overbroad, as I noted shortly after this bill first passed a House committee. (For a response to an argument that such broad speech restrictions are fine because we can rely on prosecutorial discretion, see the Supreme Court?s wise words on the subject.)

Full post as published by The Volokh Conspiracy on May 20, 2010 (boomark / email).