Legal Commentary

?Do You Think There Is Any Constitutional Way to Address Cyber-Harassment??

By Eugene Volokh

A commenter asked me this question. Here?s my answer (reading ?constitutional way to address? as referring to the use of criminal or civil liability):

It all depends on what is meant by ?cyber-harassment.? If ?harassment? is used to mean repeated unwanted one-to-one contact, I think the answer is generally yes, so long as the law is carefully drafted, and exempts speech to political officials, candidates for office, and the like. If ?harassment? is used to refer to threats or to libel, the answer is likewise yes.

But if ?harassment? is used to mean speech to the public that condemns a person (without conveying any false statements of fact, without conveying threats, without distributing illegally taken nude pictures, and the like), then I don?t think a law may constitutionally ban such speech. And more generally, the problem is that ?harassment? is generally not a well-defined term ? and in the situations where it is defined, it is often defined far too broadly. 

Perhaps there is room for restricting some online speech beyond the established First Amendment exceptions, though I approach all such proposals with some skepticism. But I don?t think that it?s useful to approach this by talking about ?cyber-harassment?; instead, one should lay out exactly what sort of speech one seeks to restrict, in terms more precise than ?harassment? or ?intent to harass.?

UPDATE: I recast the first sentence of the third paragraph (?But if ...?) to make it clearer.

Full post as published by The Volokh Conspiracy on October 04, 2010 (boomark / email).