Legal Commentary

Proposed ?Cyber-Harassment? Bill in New Jersey

By Eugene Volokh

The Daily Record reports:

Several days ago, three Ocean County legislators called for action on a bill introduced in both houses of the Legislature that would establish the crime of ?cyber-harassment? in New Jersey. Assemblyman Brian E. Rumpf, Assemblywoman DiAnne C. Gove and Sen. Christopher J. Connors, all R-Ocean, would make any electronic communication that is designed to harass someone a petty disorderly persons offense.

The renewed push stems from the Tyler Clementi suicide, which was apparently prompted by the surreptitious videotaping of Clementi having sex, followed by the release of the videotape. And such surreptitious videotaping of sexual behavior is already rightly criminal. But the bill goes far beyond such behavior (additions to the existing statute underlined):

[A] person commits a petty disorderly persons offense if, with purpose to harass another, ... [the person]:

a. Makes, or causes to be made, a communication or communications anonymously or otherwise, or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

A communication under subsection a. of this section includes, but is not limited to, the posting of a photographic images or other descriptive material on an Internet website, or the sending of a telephonic message, electronic mail, text message or similar type of electronic message or communication, by means of an electronic communication device. ?Electronic communication device? includes, but is not limited to, a telephone, cellular telephone, computer, computer network, computer system, video recorder, facsimile machine or pager. A communication under subsection a. may be deemed to have been made either at the place where it originated or at the place where it was received.

The existing harassment statute was already flawed, it seems to me; but at least such statutes have generally been seen as focusing on speech said to a particular unwilling listener, and leaving people free to talk to the world at large. This proposal would make clear that speech to the public about a person is now a crime (albeit a petty one) if it is said ?with purpose to harass another? and is ?likely to cause annoyance.? So if I publicly harshly condemn Assemblyman Brian E. Rumpf, Assemblywoman DiAnne C. Gove, and Sen. Christopher J. Connors, then I could be a criminal if a prosecutor and a judge conclude that my speech is ?likely to cause annoyance? and was said ?with purpose to harass another.? Likewise if I post annoying comments criticizing a New Jersey journalist, or a New Jersey actor or sports figure or whoever else.

This strikes me as quite wrong, and unconstitutionally so. Even if ?purpose to harass? is read as ?purpose to annoy? or even ?purpose to seriously annoy,? ?in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment.? I would go further and argue that the same would be so even as to speech that is not about public affairs (see PDF pp. 47?51 of this article). But in any event, the statute is not limited to speech that is supposedly on matters of private concern, and would apply to supposedly ill-intentioned, annoying speech about public figures, or about private figures but on matters directly related to public debates. Such a statute isn?t necessary to punish behavior such as that in the Clementi case, and it isn?t constitutional.

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