[Volokh] Eugene Volokh: Telephone/E-mail Harassment Law and Government Officials:

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Posted by Eugene Volokh:
Telephone/E-mail Harassment Law and Government Officials:
http://volokh.com/archives/archive_2008_04_27-2008_05_03.shtml#1209665198


   Traditional telephone harassment laws -- for instance, ones that ban
   calls (sometimes limited to anonymous calls and sometimes not) that
   are intended "to annoy, abuse, threaten, or harass any person at the
   called number" -- are generally thought to be constitutional. As to
   threatening calls, the First Amendment rationale is clear; they fall
   within the true threats exception. Likewise, if the law were limited
   to calls that are annoying for non-content-related reasons (e.g.,
   they're placed at 3 a.m., or they happen twenty times over twenty
   minutes), it would be justified as a content-neutral restrictions.

   But as to "annoy[ing]," "abus[ive]," or "harass[ing]" calls, the
   rationale is less obvious. The law restricts speech because of its
   content; the speech doesn't fit within any of the well-established
   exceptions; and even anonymous speech is usually constitutionally
   protected. In my view, the best [1]justification for the restriction
   is that "One-to-one speech that's intended to annoy the one recipient
   is rarely of very much First Amendment value; people are just rarely
   persuaded or enlightened by speech that's intended to annoy them. It
   has some value ..., but to the extent that it's in some measure
   deterred, the loss to public debate isn't that great -- speakers are
   still free to speak to others besides the person they're trying to
   annoy." And the same justification also extends to similar
   restrictions on harassing e-mail, which have recently sprung up. Yet
   we should recognize that the First Amendment issue is not entirely
   clear.

   And the question is particularly unclear when the annoying speech is
   related to public debate, and especially when it's conveyed to public
   officials. In 1999, [2]the D.C. Circuit set aside a harassment
   conviction of Ion Popa, who made several racist calls to the U.S.
   Attorney for the District of Columbia (the chief federal prosecutor in
   the District); and the court seemed to suggest that speech "intend[ed]
   in part to communicate a political message" must be exempted from
   telephone harassment law. (Query, by the way, whether the same would
   apply to speech intended to communicate a religious message, a message
   on social issues, and the like.)

   In any case, a [3]similar question has just arisen in Washington
   state:

     The Jan. 8 e-mail message, sent by "battleground anonymous" to
     members of the Battle Ground City Council, was a racist rant about
     Paul Zandamela, a black man who had been sworn in as a city
     councilman the previous evening.

     "Our city government must be corrupt to have this (derogatory term)
     as an elected official," read the message in part. The message
     included four slurs and was signed, "Sincerely, a (derogatory term)
     hater."

     That message and a subsequent note were traced to Christopher
     Reinhold, the son of Alex Reinhold, Battle Ground's deputy mayor
     ....

     [Mayor Mike] Ciraulo received a second message that called him a
     "stupid (derogatory term) lover." ...

   Reinhold is now being prosecuted for alleged "cyberstalking" based on
   his e-mail to Zandamela and Ciraulo (not his messages to other council
   members about Zandamela).

   Please keep in mind, by the way, that telephone/e-mail harassment laws
   are very different from [4]"hostile environment" harassment laws, and
   thus require different First Amendment analyses.

References

   1. http://www.volokh.com/posts/1136923654.shtml
   2. http://www.volokh.com/posts/1136923654.shtml
   3. http://www.columbian.com/news/localNews/2008/04/04172008_BG-officials-son-accused-of-racial-taunts.cfm
   4. http://www.law.ucla.edu/volokh/harass