Censoring Critical Blogs as “Harassment” Would Violate the First Amendment

by Hans Bader on April 30, 2009 · 3 comments

in Odds & Ends

Under a recently-introduced bill, H.R. 1966, bloggers would face up to two years in prison if they “harass” public figures by criticizing them in a “severe, repeated, and hostile” manner, and thereby cause them “substantial emotional distress.”

U.C.L.A. Law Professor Eugene Volokh, the author of a First Amendment treatise, has concluded that the bill is unconstitutional. I agree, as I explain here. As a federal appeals court noted in DeJohn v. Temple University (2008), “there is no harassment exception to the First Amendment’s free speech clause.” Speech that causes emotional distress can be protected,as the Supreme Court made clear in barring a lawsuit by Jerry Falwell over an offensive parody.

Under this bill, a blogger like Emile Zola, the courageous writer who exposed an anti-semitic witchhunt a century ago in the infamous Dreyfus Affair through his repeated and “vehement public” denunciations of public officials, would be subject to prosecution. His “severe, repeated, and hostile” denunciations resulted in many public figures being discredited and removed from office, which no doubt caused them “substantial emotional distress.”

The bill is a telling example of how the American Left has turned against free speech and civil liberties. The bill’s sponsor, Linda Sanchez (D-CA), and nearly all of her 14 co-sponsors are liberals. All of them backed the federal hate-crimes bill passed by the House yesterday, which is designed to allow people who have been found innocent in state court to be reprosecuted in federal court. (That bill has been criticized by four members of the U.S. Civil Rights Commission, including law professor Gail Heriot, and by civil libertarian Wendy Kaminer. Advocates of the federal hate-crimes bill once cited the defendants in the Duke Lacrosse case, who were innocent, as an example of people who should be prosecuted in federal court).

As a student at the University of Virginia in November 1990, I witnessed a four-hour long speech by a racist, anti-semitic demagogue from the Nation of Islam. When no one else would do so, perhaps for fear of physical retaliation, I and my friends Arshad and David repeatedly and publicly denounced the speech — and the head of U.Va.’s Black Student Alliance (BSA), who sponsored and celebrated the speech. Our criticism no doubt struck the BSA’s head as “severe, hostile, and repeated,” and caused him “emotional distress,” since he transferred to Hampton State University in the middle of his third year in college after being ostracized by outraged students. (46 people of all different races came up to me and thanked me for my criticisms, but no one wanted to do so publicly, lest they be accused of “racism” or receive threats from Nation of Islam supporters, as my friend David did. My friend Arshad, a Bangladeshi Muslim who criticized the speech and the Nation of Islam as a “heretical expression of race hatred,” was left alone, probably because it is harder to brand a racial minority as being racist).

bernie May 6, 2009 at 8:50 am

I've had similar experiences in my youth expressing my disagreement with leftists.

Just FYI, I linked to your article from Congresswoman Linda Sanchez is an Idiot, I couldn't find your trackback URL.

Sebastian May 10, 2009 at 11:42 pm

This bill starts with a limited finding regarding children who use the internet and are more likely to encounter cyberbullying and ends with a prohibition on any electronically transmitted speech that is deemed offensive by “a person.” Note that the speech doesn’t have to be directed toward a minor at all to fall under this law.

And to make a finding that “Youth who create Internet content and use social networking sites are more likely to be targets of cyberbullying” is as insightful as saying that children who go to the beach are more likely to get wet and sandy.

Take a look at the CPSIA and the way that it was written to cover all children’s products. Congress has insisted that it doesn’t mean what it clearly says (yes, all means all) and that CPSC can do things that the law doesn’t grant it authority over (like issue exemptions and stays of enforcement).

I predict that this will get pushed through on the coattails of a sad incident by lawmakers who like their soundbites and then will be a law that has much wider consequences than the sponsors advertised.

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