It is good that these people are thinking about this, but it is very obvious that this law is not phrased well at all. Obviously a conspiracy of harassment between multiple people would be a better way to phrase the law. Also a direct email or contact is different then a blog post.Louisiana Bill Would Outlaw Insulting an Under 17 Year Old By E-Mail
The Louisiana House bill — passed by a 12–0 vote in committee, and scheduled for floor debate this Wednesday — would make it a crime (up to 6 months in jail for the first offense, up to a year for the second, and up to three years for the third), to transmit by “any ... means of electronic communication”
any electronic textual, visual, written, or oral communication with the intent to coerce, abuse, torment, intimidate, frighten, harass, embarrass, or cause emotional distress to a person under the age of seventeen.So if a 16-year-old e-mails her boyfriend telling him that he’s a scumbag for cheating on her, and that he should feel ashamed of himself, she would be a criminal: She would be transmitting a written communication with the intent to cause emotional distress to a person under the age of seventeen.
If a newspaper or blog publishes an article harshly condemning a 16-year-old criminal, its writers and editors would also be criminals: They would be transmitting a written electronic communication (assuming the newspaper’s content is available online), and probably done so with the intent to embarrass or cause emotional distress to the 16-year-old.
If someone writes a newspaper article or blog post seeking to “scare kids straight,” and away from sex, drugs, gangs, or what have you by frightening them by the possible consequences of their conduct, they would probably be criminals: They would be transmitting a written communication with the intent to frighten persons under the age of seventeen.
Naturally, some people might try to defend this on the grounds that prosecutors won’t apply the statute as broadly as it’s written, but will instead focus just on “extreme” cyberbullying; but I think Chief Justice Roberts’ majority opinion in last week’s United States v. Stevens is instructive here:
Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty, and it “neither has brought nor will bring a prosecution for anything less,” The Government hits this theme hard, invoking its prosecutorial discretion several times. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.
via volokh.com
Chris Travers says:
At what point do we find ourselves in a society where at least teenagers are subject to “show me the man and I’ll show you the crime?” How long before this approach leaks out into the general adult population as well?
Prosecuting minors for producing child pornography by taking pictures of themselves with the intention of sexually exciting the recipient (something 30% of teens currently admit to doing) is one element of this. You’d think this too would be subject to at least an as-applied challenge based on first and fifth amendment jurisprudence, but thus far no such challenges have been successful. (US v. Stevens has some encouraging language though in this area which suggests that teen sexting may be outside the child porn exception.)
I guess I wonder to what extent teenagers’ first amendment rights are already deeply wounded and what it’s going to take to rehabilitate them.
What deeply concerns me about this though is that if teenagers aren’t given a reason to value first amendment rights because their rights are so heavily abridged, then these teenagers are less likely to value first amendment rights as adults. Our free speech rights may be grounded in the first amendment, but they cannot survive unless valued by society at large.
Also question: Given that Louisiana has a system of civil rather than common law, can the Louisiana courts even invalidate the law? Or wouldn’t that have to be struck down by the Supreme Court, and only by the Supreme Court?
via volokh.com
