Senate Bill Would Make Unconstitutional Anti-Stalking Law Even More Unconstitutional

BY MARCIA HOFMANN, Electronic Frontier Foundation

Just a few months ago in United States v. Cassidy, a court smacked down a prosecutor's attempt to use the federal anti-stalking law to punish a man for criticizing a religious leader on Twitter. The court ruled that the criminal charges brought against the critic ran afoul of his constitutional right to free speech. Because the law violated the First Amendment as applied to that specific Twitter user, though, the court chose not to go a step further and decide whether the statute is unconstitutional as written, which EFF had argued in a "friend of the court" brief.

Now the Senate is thinking about passing legislation to update that problematic law. Instead of fixing the statute's shortcomings, however, the bill would guarantee that it's blatantly unconstitutional on its face.

As originally written, the anti-stalking law made it a crime to intentionally put another person in reasonable fear of death or serious injury. But the law was expanded in 2006 through the Violence Against Women Act to criminalize causing "substantial emotional distress" to another person using an "interactive computer service" such as the Internet. The law doesn't even require that the offending speech be directed at a particular person -- a tweet, Facebook status update, or blog post that distresses someone else could be enough to send the speaker to prison. As the Cassidy decision makes clear (and as EFF had argued), this language is so vague and overbroad that it could sweep up a great deal of legitimate online criticism squarely protected by the Constitution. 

Rather than clarify the statute to solve those problems, the Violence Against Women Reauthorization Act of 2011 would significantly extend the law to punish more speech -- and it could go to the Senate floor as early as tomorrow.

First, section 107 of the bill would broaden the anti-stalking law to criminalize conduct that "attempts to cause, or would be reasonably expected to cause" substantial emotional distress to another person. That's a significant expansion that only amplifies the statute's free speech problems.

To make matters worse, section 1003 would amend federal telecommunications law to punish anonymous online speech that "harass[es] any specific person," as well as make it illegal to "repeatedly initiate[] communication with a telecommunications device, during which conversation or communication ensues, solely to harass any specific person." As Professor Eugene Volokh notes, these broad prohibitions would seem to apply even in situations where an online speaker is talking to the general public, rather than communicating directly with the target of the speech.   

Anti-stalking laws serve an important purpose: to protect people who are put in legitimate fear for their wellbeing. Unfortunately, the language of the federal anti-stalking law is already dangerously vague and overbroad, and we're disappointed to see lawmakers think about compounding those problems with a proposal that amounts to Internet censorship legislation. (Just a few weeks ago, Arizona's legislature suffered a public backlash for passing a bill with similar flaws.) The Senate should craft a fix that protects victims while respecting free speech, not make an unconstitutional law even more unconstitutional.