Annoying Law Forbids Annoyances
There’s a highly disturbing story in CNET titled, “Create an e-annoyance, go to jail.” It begins:
Annoying someone via the Internet is now a federal crime.
It’s no joke. Last Thursday, President Bush signed into law a prohibition on posting annoying Web messages or sending annoying e-mail messages without disclosing your true identity.
Sen. Arlen Specter apparently burried the law in the “Violence Against Women and Department of Justice Reauthorization Act,” carrying stiff fines and up to two years in prison. Here’s the relevant language in Sec. 113:
“Whoever…utilizes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet… without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person…who receives the communications…shall be fined under title 18 or imprisoned not more than two years, or both.”
What does it mean to “annoy,” and why should that be illegal? For an Act that seeks to protect women, Declan McCullagh notes it can do just the opposite: “A woman fired by a manager who demanded sexual favors wants to blog about it without divulging her full name.” Under the law that would arguably be illegal.
Perhaps the most disconcerting aspect is the wet blanket it would throw on political speech. Anonymous criticisms online of elected officials can certainly be annoying. Dr. Duncan Black, author of the tremendously popular liberal weblog Eschaton, published for quite a while under the pseudonym “Atrios.” One could easily argue his actions would violate the new act.
It is true that the Justice Department isn’t going to prosecute in most of these cases, but as McCullagh wrote, “trusting prosecutorial discretion is hardly reassuring.”
In laws that implicate constitutional rights we often harken back to the Founding Fathers in an attempt to devine what they would’ve thought of the law. This is never an easy task but we can rest assured that most, if not all, would despise this law. In a series of letters written by a middle-aged widow named ‘Silence Dogood’, Benjamin Franklin famously poked fun at life in colonial America and its institutions.
The list of “annoying” pseudonyms is so long I couldn’t begin to put a dent in it here. Outlawing them is stupid, misguided, harmful, and, in my opinion, ultimately unconstitutional. The government should not merely fail to enforce the law; it should repeal it.
Update: Prof. Orin Kerr gives a surprisingly unpersuasive defense of the law. He argues that although it is extremely broad, the Supreme Court has already protected most annoying speech and prosecutors know to only prosecute cases not protected by the First Amendment.
This assurance rings hollow. To begin with, each branch of the government has an obligation, under oath, to uphold and not violate the Constitution. If Congress believed this overly broad law was partially unconstitutional, they have failed their duty to the document.
A second concern is that the bounds of constitutionality are constantly in flux. In United States v. Popa, the defendant called the U.S. Attorney for D.C on the telephone several times, and each time would hurl insults at the U.S. Attorney without identifying himself. He was charged under a virtually similar law that applies to phone calls. The Supreme Court ultimately protected this particular speech, but how can we be assured that this decision will stand the test of time?
Finally, even if the Popa decision stands, it only protects us from conviction, not from prosecution. If a prosecutor wanted to take this law and enforce it to the fullest amount possible, one would still have to suffer through litigation expenses in defending himself.
