B. Harmful SpeechConcluding that something is “speech” does not end the First Amendment inquiry. Some restrictions of speech are permissible; many of those restrictions are related to the harm that the speech causes. The materials in this section consider four kinds of harm that speech could cause: to the victim’s reputation, sense of safety, privacy, and emotions. An early generation of theorists believed that these restrictions were either unenforceable or unnecessary on the Internet. They argued that online speech could and should be utterly uninhibited. As you read the following materials, ask what this view gets right and what it gets wrong.
danah boyd, It’s Complicated: The Social Lives of Networked Teens 10–13 (2014)To understand what is new and what is not, it’s important to understand how technology introduces new social possibilities and how these challenge assumptions people have about everyday interactions. The design and architecture of environments enable certain types of interaction to occur. Round tables with chairs make chatting with someone easier than classroom-style seating. Even though students can twist around and talk to the person behind them, a typical classroom is designed to encourage everyone to face the teacher. The particular properties or characteristics of an environment can be understood as affordances because they make possible – and, in some cases, are used to encourage – certain types of practices, even if they do not determine what practices will unfold. Understanding the affordances of a particular technology or space is important because it sheds light on what people can leverage or resist in achieving their goals. For example, the affordances of a thick window allow people to see each other without being able to hear each other. To communicate in spite of the window, they may pantomime, hold up signs with written messages, or break the glass. The window’s affordances don’t predict how people will communicate, but they do shape the situation nonetheless.
Because technology is involved, networked publics have different characteristics than traditional physical public spaces. Four affordances, in particular, shape many of the mediated environments that are created by social media. Although these affordances are not in and of themselves new, their relation to one another because of networked publics creates new opportunities and challenges. They are:
• persistence: the durability of online expressions and content;
• visibility: the potential audience who can bear witness;
• spreadability: the ease with which content can be shared;
• and searchability: the ability to find content.
Content shared through social media often sticks around because technologies are designed to enable persistence. The fact that content often persists has significant implications. Such content enables interactions to take place over time in an asynchronous fashion. Alice may write to Bob at midnight while Bob is sound asleep; but when Bob wakes up in the morning or comes back from summer camp three weeks later, that message will still be there waiting for him, even if Alice had forgotten about it. Persistence means that conversations conducted through social media are far from ephemeral; they endure. Persistence enables different kinds of interactions than the ephemerality of a park. Alice’s message doesn’t expire when Bob reads it, and Bob can keep that message for decades. What persistence also means, then, is that those using social media are often “on the record” to an unprecedented degree.
Through social media, people can easily share with broad audiences and access content from greater distances, which increases the potential visibility of any particular message. More often than not, what people put up online using social media is widely accessible because most systems are designed such that sharing with broader or more public audiences is the default. Many popular systems require users to take active steps to limit the visibility of any particular piece of shared content. This is quite different from physical spaces, where people must make a concerted effort to make content visible to sizable audiences. In networked publics, interactions are often public by default, private through effort.
Social media is often designed to help people spread information, whether by explicitly or implicitly encouraging the sharing of links, providing reblogging or favoriting tools that repost images or texts, or by making it easy to copy and paste content from one place to another. Thus, much of what people post online is easily spreadable with the click of a few keystrokes.9 Some systems provide simple buttons to “forward,” “repost,” or “share” content to articulated or curated lists. Even when these tools aren’t built into the system, content can often be easily downloaded or duplicated and then forwarded along. The ease with which everyday people can share media online is unrivaled, which can be both powerful and problematic. Spreadability can be leveraged to rally people for a political cause or to spread rumors.
Last, since the rise of search engines, people’s communications are also often searchable. My mother would have loved to scream, “Find!” and see where my friends and I were hanging out and what we were talking about. Now, any inquisitive onlooker can query databases and uncover countless messages written by and about others. Even messages that were crafted to be publicly accessible were not necessarily posted with the thought that they would reappear through a search engine. Search engines make it easy to surface esoteric interactions. These tools are often designed to eliminate contextual cues, increasing the likelihood that searchers will take what they find out of context.
None of the capabilities enabled by social media are new. The letters my grandparents wrote during their courtship were persistent. Messages printed in the school newspaper or written on bathroom walls have long been visible. Gossip and rumors have historically spread like wildfire through word of mouth. And although search engines certainly make inquiries more efficient, the practice of asking after others is not new, even if search engines mean that no one else knows. What is new is the way in which social media alters and amplifies social situations by offering technical features that people can use to engage in these well-established practices.
As people use these different tools, they help create new social dynamics. For example, teens “stalk” one another by searching for highly visible, persistent data about people they find interesting. “Drama” starts when teens increase the visibility of gossip by spreading it as fast as possible through networked publics. And teens seek attention by exploiting searchability, spreadability, and persistence to maximize the visibility of their garage band’s YouTube video. The particular practices that emerge as teens use the tools around them create the impression that teen sociality is radically different even though the underlying motivations and social processes have not changed that much.
Questions1. Is a handwritten letter persistent? Visible? Spreadable? Searchable? What about an email? A blog post?
2. How do these four affordances change the ways in which speech can inflict harms on listeners? On speakers? On third parties?
3. John Perry Barlow argues that online speech is different because the Internet is all speech. How does this play into his argument that governments should keep their hands off the Internet? Do boyd’s claims support his argument, or undercut it?
Restatement (Second) of Torts [Privacy Torts]§ 558 Elements [of Defamation] Stated
To create liability for defamation there must be:
(a) a false and defamatory statement concerning another;
(b) an unprivileged publication to a third party;
(c) fault amounting at least to negligence on the part of the publisher; and
(d) [harm].
§ 559 Defamatory Communication DefinedA communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.
§ 568 Libel and Slander Distinguished(1) Libel consists of the publication of defamatory matter by written or printed words, by its embodiment in physical form or by any other form of communication that has the potentially harmful qualities characteristic of written or printed words.
(2) Slander consists of the publication of defamatory matter by spoken words, transitory gestures or by any form of communication other than those stated in Subsection (1). (3) The area of dissemination, the deliberate and premeditated character of its publication and the persistence of the defamation are factors to be considered in determining whether a publication is a libel rather than a slander.
§ 652B Intrusion upon SeclusionOne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.
cmt. b. The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff’s room in a hotel or insists over the plaintiff’s objection in entering his home. It may also be by the use of the defendant’s senses, with or without mechanical aids, to oversee or overhear the plaintiff’s private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. …
cmt. c. The defendant is subject to liability under the rule stated in this Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs. Thus there is no liability for the examination of a public record concerning the plaintiff, or of documents that the plaintiff is required to keep and make available for public inspection. Nor is there liability for observing him or even taking his photograph while he is walking on the public highway, since he is not then in seclusion, and his appearance is public and open to the public eye. Even in a public place, however, there may be some matters about the plaintiff, such as his underwear or lack of it, that are not exhibited to the public gaze; and there may still be invasion of privacy when there is intrusion upon these matters.
§ 652D Publicity Given to Private LifeOne who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.
Pennsylvania Right of PublicityTitle 42, Pennsylvania Consolidated Statutes
§ 8316. Unauthorized use of name or likeness(a) Cause of action established.–Any natural person whose name or likeness has commercial value and is used for any commercial or advertising purpose without the written consent of such natural person … may bring an action to enjoin such unauthorized use and to recover damages for any loss or injury sustained by such use. …
(c) Repose.–No action shall be commenced under this section more than 30 years after the death of such natural person. …
(e) Definitions.–As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
“Commercial or advertising purpose.”
(1) Except as provided in paragraph (2), the term shall include the public use or holding out of a natural person’s name or likeness:
(i) on or in connection with the offering for sale or sale of a product, merchandise, goods, services or businesses;
(ii) for the purpose of advertising or promoting products, merchandise, goods or services of a business; or
(iii) for the purpose of fundraising.
(2) The term shall not include the public use or holding out of a natural person’s name or likeness in a communications medium when:
(i) the natural person appears as a member of the public and the natural person is not named or otherwise identified;
(ii) it is associated with a news report or news presentation having public interest;
(iii) it is an expressive work; …
“Expressive work.” A literary, dramatic, fictional, historical, audiovisual or musical work regardless of the communications medium by which it is exhibited, displayed, performed or transmitted, other than when used or employed for a commercial or advertising purpose.
Questions1. On May 12, 2009, Amanda Bonnen used Twitter to tweet:
@JessB123 You should just come anyway. Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it’s okay.
Horizon Group Management, her former landlord, sued for defamation. Is Bonnen’s 127- character tweet legally actionable? If Bonnen had told her friends in person about the mold in her apartment, rather than using Twitter, could there have been a lawsuit?
2. Some commentators have argued that the tort of defamation is outdated in the digital world and should be abolished. They claim that victims like Horizon can now take to the Internet to tell their side of the story, so they don’t need legal remedies. Do you agree?
3. What does the intrusion on seclusion tort have to do with speech? Is there a First Amendment right to listen and observe as well as to speak? If so, what work are the concepts of “public place” and “private place” doing in defining the contours of the tort? Is it legal to videotape interactions with the police? To take photographs up the skirts of women seated on the subway? To fly a drone outside a neighbor’s window?
4. What is the difference between “publicity given to private life” and the “right of publicity?”
Gawker Media, LLC v. Bollea129 So. 3d 1196 (Dist. Ct. App. Fla. 2014)
Black, Judge:
Terry Bollea sought to enjoin Gawker Media, LLC, from publishing and otherwise distributing the written report about his extramarital affair that includes video excerpts from the sexual encounter. The circuit court granted Mr. Bollea’s motion for temporary injunction, though it did not articulate the reasons for doing so. … Because the temporary injunction is an unconstitutional prior restraint under the First Amendment, we reverse.
I. BackgroundIn 2006, Mr. Bollea engaged in extramarital sexual relations with a woman in her home. Allegedly without Mr. Bollea’s consent or knowledge, the sexual encounter was videotaped. On or about October 4, 2012, Gawker Media posted a written report about the extramarital affair on its website, including excerpts of the videotaped sexual encounter (”Sex Tape”). Mr. Bollea maintains that he never consented to the Sex Tape’s release or publication. Gawker Media maintains that it was not responsible for creating the Sex Tape and that it received a copy of the Sex Tape from an anonymous source for no compensation.
[Bollea filed a federal action, then voluntarily dismissed it after the court denied his motion for a preliminary injunction.] That same day, Mr. Bollea filed an amended complaint in state circuit court, asserting essentially the same claims that he asserted in federal court. Thereafter and as he did in federal court, Mr. Bollea filed a motion for temporary injunction seeking to enjoin Gawker Media … from publishing and otherwise distributing the video excerpts from the sexual encounter and complementary written report. Following a hearing, the circuit court issued an order on April 25, 2012, granting the motion for temporary injunction. The court did not make any findings at the hearing or in its written order to support its decision. On May 15, 2013, this court stayed the order granting the motion for temporary injunction pending the resolution of this appeal.
II. Applicable StandardsThe primary purpose of a temporary injunction is to preserve the status quo while the merits of the underlying dispute are litigated. In the context of the media, the status quo is to publish news promptly that editors decide to publish. A restraining order disturbs the status quo and impinges on the exercise of editorial discretion. A temporary injunction is an extraordinary remedy that should be granted sparingly and only after the moving party has alleged and proved facts entitling him to relief.
A temporary injunction aimed at speech, as it is here, is a classic example of prior restraint on speech triggering First Amendment concerns, and as such, it is prohibited in all but the most exceptional cases. Since “prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights,” the moving party bears the “heavy burden” of establishing that there are no less extreme measures available to “mitigate the effects of the unrestrained . . . public[ation]” and that the restraint will indeed effectively accomplish its purpose. Neb. Press Ass’n v. Stuart, 427 U.S. 539, 558–59, 562 (1976). Furthermore, “[w]here . . . a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment.” Neb. Press Ass’n v. Stuart, 423 U.S. 1327, 1329 (Blackmun, Circuit Justice, 1975). …
III. First AmendmentIt is not clear from the hearing transcript, and certainly not from the order, why the circuit court granted the motion for temporary injunction. Based upon the few interjections the court made during the hearing, it appears that the court believed Mr. Bollea’s right to privacy was insurmountable and that publishing the content at issue was otherwise impermissible because it was founded upon illegal actions.
A. Privacy“[W]here matters of purely private significance are at issue, First Amendment protections are often less rigorous.” Snyder v. Phelps, 131 S.Ct. 1207, 1215 (2011). On the other hand, “speech on matters of public concern . . . is at the heart of the First Amendment’s protection.” Id.
Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public. The arguably inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.
Id. at 1216. Mr. Bollea, better known by his ring name Hulk Hogan, enjoyed the spotlight as a professional wrestler, and he and his family were depicted in a reality television show detailing their personal lives. Mr. Bollea openly discussed an affair he had while married to Linda Bollea in his published autobiography and otherwise discussed his family, marriage, and sex life through various media outlets. Further, prior to the publication at issue in this appeal, there were numerous reports by various media outlets regarding the existence and dissemination of the Sex Tape, some including still shots therefrom. Despite Mr. Bollea’s public persona, we do not suggest that every aspect of his private life is a subject of public concern. See generally Post–Newsweek Stations Orlando, Inc. v. Guetzloe, 968 So. 2d 608, 612 (Fla. 5th DCA 2007) (noting that appellant’s status as a public figure does not mean that every aspect of his private life is of public concern but nonetheless holding that enjoining the broadcaster from publicly airing appellant’s personal records and those of his family operated as an unconstitutional prior restraint under the First Amendment). However, the mere fact that the publication contains arguably inappropriate and otherwise sexually explicit content does not remove it from the realm of legitimate public interest. See Fla. Star v. B.J.F., 491 U.S. 524, 525 (1989) (holding that a news article about a rape was a matter of public concern and that the newspaper was not liable for the publication of the victim’s identity obtained from a police report released by law enforcement in violation of a Florida statute); Cape Publ’ns, Inc. v. Hitchner, 549 So. 2d 1374, 1377 (Fla. 1989) (holding that confidential information regarding a child abuse trial was a matter of legitimate public concern and that thus the newspaper’s publication of such did not violate privacy interests). It is clear that as a result of the public controversy surrounding the affair and the Sex Tape, exacerbated in part by Mr. Bollea himself,5 the report and the related video excerpts address matters of public concern. See Michaels v. Internet Entm’t Grp., Inc., No. CV 98–0583 DDP (CWx), 1998 WL 882848, at *10 (C.D.Cal. Sept. 11, 1998) (Michaels II) (”[T]he private facts depicted in the [publication] ha[d] a substantial nexus to a matter of legitimate public interest,” namely, a dispute over the dissemination of the sex tape, and the depiction of the sexual relations was “clearly part of the story.”); see also Jones v. Turner, No. 94 Civ. 8603(PKL), 1995 WL 106111, at *21 (S.D.N.Y. Feb. 7, 1995) (holding that the preliminary injunction was unjustifiable where nude pictures were related to the accompanying article and the article itself was a matter of public concern). But see City of San Diego, Cal. v. Roe, 543 U.S. 77, 84 (2004) (holding that the sexually explicit acts of the government employee, depicted in a video, did not address a matter of public concern where the acts “did nothing to inform the public about any aspect of the [employing agency’s] functioning or operation”); Toffoloni v. LFP Publ’g Grp., LLC, 572 F.3d 1201, 1213 (11th Cir. 2009) (holding that the publication of nude photographs of a female professional wrestler taken twenty years prior was not protected speech because their publication was not related to the content of the reporting, namely, her murder).
In support of his contention that the report and video excerpts do not qualify as matters of public concern, Mr. Bollea relies on Michaels v.Internet Entertainment Group, Inc., 5 F. Supp. 2d 823(C.D.Cal. 1998) (Michaels I), in which the court enjoined the commercial distribution of an entire sex tape that infringed the plaintiffs’ copyrights. However, the court in Michaels I found the use of the sex tape to be purely commercial in nature. Specifically, the copyrighted tape was sold via the internet to paying subscribers, and the internet company displayed short segments of the tape as a means of advertisement to increase the number of subscriptions. In contrast, Gawker Media has not attempted to sell the Sex Tape or any of the material creating the instant controversy, for that matter.6 Rather, Gawker Media reported on Mr. Bollea’s extramarital affair and complementary thereto posted excerpts from the video.
The court in Michaels I pointed out that although “[t]he plaintiffs are entitled to an injunction against uses of their names or likenesses to sell the [sex tape,] [t]he injunction may not reach the use of their names or likenesses to report or comment on matters of public interest.” In accord with this conclusion, the court held in the companion case that the publication of a news report and brief excerpts of the sex tape was not an invasion of privacy and was protected speech. Michaels II, 1998 WL 882848, at *7, *10 (distinguishing the dissemination of an entire sex tape with the use of excerpts from the tape); see also Bollea v. Gawker Media, LLC, 913 F.Supp.2d 1325, 1331 n. 6 (M.D. Fla. 2012) (”[Gawker Media] did not simply post the entire [Sex Tape]—or substantial portions thereof, but rather posted a carefully edited excerpt consisting of less than two minutes of the thirty[-]minute video of which less than ten seconds depicted explicit sexual activity.”). Here, the written report and video excerpts are linked to a matter of public concern— Mr. Bollea’s extramarital affair and the video evidence of such—as there was ongoing public discussion about the affair and the Sex Tape, including by Mr. Bollea himself. Therefore, Mr. Bollea failed to meet the heavy burden to overcome the presumption that the temporary injunction is invalid as an unconstitutional prior restraint under the First Amendment. As such, it was within Gawker Media’s editorial discretion to publish the written report and video excerpts.
B. Unlawful InterceptionIt appears that the circuit court may have been convinced by Mr. Bollea’s argument that the speech at issue is not entitled to First Amendment protection because the Sex Tape was created in violation of the law.7 However, there is no dispute that Gawker Media was not responsible for the creation of the Sex Tape. Nor has Mr. Bollea alleged that Gawker Media otherwise obtained it unlawfully. The Supreme Court in Bartnicki held that if a publisher lawfully obtains the information in question, the speech is protected by the First Amendment provided it is a matter of public concern, even if the source recorded it unlawfully. see also N.Y. Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (holding that notwithstanding the fact that a third party had stolen the information, the press had a constitutional right to publish the Pentagon Papers because they were of public concern). As the speech in question here is indeed a matter of legitimate public concern, the holding in Bartnicki applies.8 As such, the temporary injunction acts as an unconstitutional prior restraint on Gawker Media’s protected speech. …
V. ConclusionThe circuit court’s order granting Mr. Bollea’s motion for temporary injunction is reversed because it acts as an unconstitutional prior restraint under the First Amendment.
People v. Marquan M.24 N.Y.3d 1 (2014)
Graffeo, Justice:
Defendant, a 16–year–old high school student, anonymously posted sexual information about fellow classmates on a publicly-accessible Internet website. He was criminally prosecuted for “cyberbullying” under a local law enacted by the Albany County Legislature. We are asked to decide whether this cyberbullying statute comports with the Free Speech Clause of the First Amendment.
I …
Elected officials in Albany County decided to tackle the problem of cyberbullying. They determined there was a need to criminalize such conduct because the “State Legislature ha[d] failed to address th[e] problem” of “non-physical bullying behaviors transmitted by electronic means.” Local Law No. 11 [2010] of County of Albany § 1. In 2010, the Albany County Legislature adopted a new crime—the offense of cyberbullying—which was defined as
“any act of communicating or causing a communication to be sent by mechanical or electronic means, including posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail, with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.”
The provision outlawed cyberbullying against “any minor or person” situated in the county. Knowingly engaging in this activity was deemed to be a misdemeanor offense punishable by up to one year in jail and a $1,000 fine. The statute, which included a severability clause, became effective in November 2010.
II
A month later, defendant Marquan M., a student attending Cohoes High School in Albany County, used the social networking website “Facebook” to create a page bearing the pseudonym “Cohoes Flame.” He anonymously posted photographs of high-school classmates and other adolescents, with detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information. The descriptive captions, which were vulgar and offensive, prompted responsive electronic messages that threatened the creator of the website with physical harm.
A police investigation revealed that defendant was the author of the Cohoes Flame postings. He admitted his involvement and was charged with cyberbullying under Albany County's local law. Defendant moved to dismiss, arguing that the statute violated his right to free speech under the First Amendment. …
III
Defendant contends that Albany County's cyberbullying law violates the Free Speech Clause of the First Amendment because it is overbroad in that it includes a wide array of protected expression, and is unlawfully vague since it does not give fair notice to the public of the proscribed conduct. The County concedes that certain aspects of the cyberbullying law are invalid but maintains that those portions are severable, rendering the remainder of the act constitutional if construed in accordance with the legislative purpose of the enactment. Interpreted in this restrictive manner, the County asserts that the cyberbullying law covers only particular types of electronic communications containing information of a sexual nature pertaining to minors and only if the sender intends to inflict emotional harm on a child or children.
Under the Free Speech Clause of the First Amendment, the government generally “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” United States v. Stevens, 559 U.S. 460, 468 (2010). Consequently, it is well established that prohibitions of pure speech must be limited to communications that qualify as fighting words, true threats, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct. Outside of such recognized categories, speech is presumptively protected and generally cannot be curtailed by the government.
Yet, the government unquestionably has a compelling interest in protecting children from harmful publications or materials. Cyberbullying is not conceptually immune from government regulation, so we may assume, for the purposes of this case, that the First Amendment permits the prohibition of cyberbullying directed at children, depending on how that activity is defined. Our task therefore is to determine whether the specific statutory language of the Albany County legislative enactment can comfortably coexist with the right to free speech.
Challenges to statutes under the Free Speech Clause are usually premised on the overbreadth and vagueness doctrines. A regulation of speech is overbroad if constitutionally-protected expression may be “chilled” by the provision because it facially prohibits a real and substantial amount of expression guarded by the First Amendment This type of facial challenge, which is restricted to cases implicating the First Amendment, requires a court to assess the wording of the statute—without reference to the defendant's conduct—to decide whether a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep. A law that is overbroad cannot be validly applied against any individual. In contrast, a statute is seen by the courts as vague if it fails to give a citizen adequate notice of the nature of proscribed conduct, and permits arbitrary and discriminatory enforcement. Hence, the government has the burden of demonstrating that a regulation of speech is constitutionally permissible. …
Based on the text of the statute at issue, it is evident that Albany County created a criminal prohibition of alarming breadth. The language of the local law embraces a wide array of applications that prohibit types of protected speech far beyond the cyberbullying of children. As written, the Albany County law in its broadest sense criminalizes “any act of communicating . . . by mechanical or electronic means . . . with no legitimate . . . personal . . . purpose, with the intent to harass [or] annoy . . . another person.” On its face, the law covers communications aimed at adults, and fictitious or corporate entities, even though the county legislature justified passage of the provision based on the detrimental effects that cyberbullying has on school-aged children. The county law also lists particular examples of covered communications, such as “posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail.” But such methods of expression are not limited to instances of cyberbullying—the law includes every conceivable form of electronic communication, such as telephone conversations, a ham radio transmission or even a telegram. In addition, the provision pertains to electronic communications that are meant to “harass, annoy . . . taunt . . . [or] humiliate” any person or entity, not just those that are intended to “threaten, abuse . . . intimidate, torment . . . or otherwise inflict significant emotional harm on” a child. In considering the facial implications, it appears that the provision would criminalize a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult.
The County admits that the text of the statute is too broad and that certain aspects of its contents encroach on recognized areas of protected free speech. Because the law imposes a restriction on the content of protected speech, it is invalid unless the County can demonstrate that it passes strict scrutiny—that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest. For this reason, the County asks us to sever the offending portions and declare that the remainder of the law survives strict scrutiny. What remains, in the County's view, is a tightly circumscribed cyberbullying law that includes only three types of electronic communications sent with the intent to inflict emotional harm on a child: (1) sexually explicit photographs; (2) private or personal sexual information; and (3) false sexual information with no legitimate public, personal or private purpose.
It is true, as the County urges, that a court should strive to save a statute when confronted with a Free Speech challenge. But departure from a textual analysis is appropriate only if the statutory language is fairly susceptible to an interpretation that satisfies applicable First Amendment requirements. The doctrine of separation of governmental powers prevents a court from rewriting a legislative enactment through the creative use of a severability clause when the result is incompatible with the language of the statute. And special concerns arise in the First Amendment context—excessive judicial revision of an overbroad statute may lead to vagueness problems because the statutory language would signify one thing but, as a matter of judicial decision, would stand for something entirely different. Under those circumstances, persons of ordinary intelligence reading [the law] could not know what it actually meant.
We conclude that it is not a permissible use of judicial authority for us to employ the severance doctrine to the extent suggested by the County or the dissent. It is possible to sever the portion of the cyberbullying law that applies to adults and other entities because this would require a simple deletion of the phrase “or person” from the definition of the offense. But doing so would not cure all of the law's constitutional ills. As we have recently made clear, the First Amendment protects annoying and embarrassing speech, even if a child may be exposed to it, so those references would also need to be excised from the definitional section. And, the First Amendment forbids the government from deciding whether protected speech qualifies as “legitimate,” as Albany County has attempted to do.4
It is undisputed that the Albany County statute was motivated by the laudable public purpose of shielding children from cyberbullying. The text of the cyberbullying law, however, does not adequately reflect an intent to restrict its reach to the three discrete types of electronic bullying of a sexual nature designed to cause emotional harm to children. Hence, to accept the County's proposed interpretation, we would need to significantly modify the applications of the county law, resulting in the amended scope bearing little resemblance to the actual language of the law. Such a judicial rewrite encroaches on the authority of the legislative body that crafted the provision and enters the realm of vagueness because any person who reads it would lack fair notice of what is legal and what constitutes a crime. Even if the First Amendment allows a cyberbullying statute of the limited nature proposed by Albany County, the local law here was not drafted in that manner. Albany County therefore has not met its burden of proving that the restrictions on speech contained in its cyberbullying law survive strict scrutiny.
There is undoubtedly general consensus that defendant's Facebook communications were repulsive and harmful to the subjects of his rants, and potentially created a risk of physical or emotional injury based on the private nature of the comments. He identified specific adolescents with photographs, described their purported sexual practices and posted the information on a website accessible world-wide. Unlike traditional bullying, which usually takes place by a face-to-face encounter, defendant used the advantages of the Internet to attack his victims from a safe distance, 24 hours a day, while cloaked in anonymity. Although the First Amendment may not give defendant the right to engage in these activities, the text of Albany County's law envelops far more than acts of cyberbullying against children by criminalizing a variety of constitutionally-protected modes of expression. We therefore hold that Albany County's Local Law No. 11 of 2010—as drafted— is overbroad and facially invalid under the Free Speech Clause of the First Amendment. …
Smith, Justice, dissenting:Albany County has conceded that certain provisions of its Cyber–Bullying law are invalid. It seems to me that those provisions can be readily severed from the rest of the legislation and that what remains can, without any strain on its language, be interpreted in a way that renders it constitutionally valid. …
The County concedes that the words “embarrassing” and “hate mail” are vague and thus unenforceable. It argues, correctly I think, that these terms can be dealt with in the same way as the reference to “person” in the operative section: simply by crossing them out. Once these deletions are made, I see nothing in the law that renders it unconstitutional.
The majority, it seems, is troubled by two other aspects of the definition of “Cyber– Bullying”: the requirement that the forbidden communications be made “with no legitimate private, personal, or public purpose”; and the series of verbs—“harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate”—that precedes the words “or otherwise.” Neither requires us to invalidate the law.
I grant that the words “no legitimate . . . purpose” are not remarkable for their precision. We have twice held, however, that they are clear enough to withstand a constitutional challenge for vagueness. People v. Shack, 86 N.Y.2d 529, 533 (1995) (holding valid a prohibition on the making of a telephone call “with intent to harass, annoy, threaten or alarm another person . . . with no purpose of legitimate communication”); People v. Stuart, 100 N.Y.2d 412, 428 (2003) (holding valid an anti-stalking statute prohibiting a described course of conduct when engaged in “for no legitimate purpose”). We said in Shack:
the phrase ‘no purpose of legitimate communication’ . . . notwithstanding its subjective quality, would be understood to mean the absence of expression of ideas or thoughts other than threats and/or intimidating or coercive utterances.
Similarly here, the phrase “no legitimate purpose” should be understood to mean the absence of expression of ideas or thoughts other than the mere abuse that the law proscribes.
It is true, as the majority says, that the criminal conduct at issue in Shack and Stuart was different from the conduct at issue here—but that does not make the words “no legitimate purpose” any more or less vague. The majority is also correct in saying that “the First Amendment forbids the government from deciding whether protected speech qualifies as ‘legitimate’ ”but this begs the central question of what speech is “protected” and what is not. The Cyber–Bullying law prohibits a narrow category of valueless and harmful speech when the government proves, among other things, that the speaker had no legitimate purpose for engaging in it. The speech so prohibited is not protected speech.
As for the list of verbs beginning with “annoy” and ending with “humiliate,” it is fair to read them, as the County urges, as “a non-exhaustive list of ways that the wrongdoer may formulate his or her intent to inflict emotional harm on the victim” In other words, the acts within the scope of the Cyber–Bullying law—disseminating sexually explicit photographs or private, personal, false or sexual information—are prohibited only where they are intended to “inflict significant emotional harm” on the victim, and the verbs merely serve as examples of ways in which significant emotional harm may be inflicted. That is not the only possible way to read the text of the law, but it is a perfectly reasonable way—indeed, the word “otherwise” seems to signal that the verbs preceding it are only illustrative. So read, the law does not prohibit conduct intended to harass, annoy, threaten or the like unless the actor specifically intended “significant emotional harm.” I do not find such a prohibition to be unconstitutionally vague or overbroad. …
Question1. After Marquan M, would the following statute be constitutional?
A minor commits a the offense of cyberbullying if the minor knowingly transmits or disseminates any electronic communication, including a visual depiction of himself or any other person in a state of nudity, to another minor with the knowledge or intent that the communication would coerce, intimidate, torment, harass or otherwise cause emotional distress to the other minor.
United States v. Petrovic [i]701 F.3d 849 (8th Cir. 2012)
Riley, Chief Judge:
Jovica Petrovic was convicted of four counts of interstate stalking and two counts of interstate extortionate threat. The district court sentenced Petrovic to ninety-six months imprisonment. Petrovic appeals his convictions and sentence … . We affirm.
I. Background …Petrovic and the victim, M.B., began a relationship in 2006, married in 2009, and later divorced. During their relationship, Petrovic resided in Florida and M.B. resided in Missouri, where she and her ex-husband, R.B., shared custody of their two young children. Petrovic and M.B. often met in Florida or Missouri, and M.B. occasionally allowed Petrovic to take pictures of her in the nude or performing various sex acts. M.B. also confided in Petrovic, revealing private and intimate information in text messages, such as the sexual abuse M.B. suffered as a young girl, her suicidal thoughts and tendencies, family secrets, and self-doubts about her fitness as a mother. Petrovic saved thousands of these text messages.
During their relationship, Petrovic also accumulated other potentially embarrassing information about M.B. In July 2009, M.B. attempted suicide at Petrovic’s home after finding evidence leading her to believe Petrovic was having an extra-marital affair. After M.B. was taken to the hospital for treatment, Petrovic took pictures of the pool of blood that had formed on the floor. In December 2009, Petrovic took several trips to Missouri to" see M.B. During these trips, Petrovic stayed at a local hotel and secretly filmed M.B. having sexual intercourse with him. Petrovic took steps to ensure that M.B. was identifiable in the videos. He refused to turn off the lights, removed the sheets from the bed, and directed M.B.’s face and exposed genitalia toward the concealed camera.
On December 28, 2009, M.B. informed Petrovic by text message that she was ending their relationship. In response, Petrovic sent M.B. text messages informing her that he had secretly recorded their recent sexual encounters and had saved all of the text messages M.B. previously sent him. Petrovic threatened to post this information on the internet so M.B.’s family could read the messages and see the videos, if M.B. did not continue their relationship. Petrovic stated he was not “blackmail[ing]” M.B. and was only saving the information for his own “protection,” but told M.B. to “be smart.” Petrovic informed M.B. she and her family could soon visit his new website, “www.[M.B.]slut. com.” M.B. understood Petrovic intended to “ruin [her] life” if she did not “get back together with [Petrovic],” but M.B. nevertheless permanently ended the relationship.
Petrovic then began a campaign to carry out his threats. Over the course of the next few months, Petrovic mailed dozens of homemade postcards to addresses throughout M.B.’s community, including to M.B.’s workplace, M.B.’s family members, R.B.’s home, and local businesses like the neighborhood drugstore. The postcards typically portrayed a picture of a scantily clad M.B. along with abusive language (for example, “I am just a whore 4 sale”) and directions to a website, “www.marriedto [M.B.].com.” The postcards were viewed by M.B.’s children, other family members, and many acquaintances. News of the website spread throughout the community, and almost everyone M.B. knew became aware of the site.
The website was publicly accessible in March 2010. Petrovic reported his site was “huge,” containing “20,000 or 30,000 pages” of material reflecting months of preparation by Petrovic, who began creating the site in August 2009. The site contained links to dozens of images of M.B. posing in the nude or engaging in sex acts with Petrovic, and included many from the tapes Petrovic secretly recorded. Visitors to the site could view scores of pictures of M.B.’s children and other family members by clicking on a link next to the pornographic material. Several photographs of M.B. performing a sex act with Petrovic were repeatedly and prominently displayed throughout the website, including on the site’s home page. Petrovic also posted thousands of pages of the text messages M.B. had sent him. The messages were color-coded by speaker and organized chronologically, with the most private and embarrassing messages given special pages to increase readership. Petrovic posted the pictures of the blood from M.B.’s suicide attempt, further highlighting her suicidal thoughts and history. Private information about M.B. and her family was also revealed, including M.B.’s contact information and the social security numbers of her children. M.B. did not authorize Petrovic to release any of this information. After learning of the website, M.B. “had a breakdown” and “wanted to die.”
Besides the website and postcards, Petrovic sent several packages containing enlarged photographs of M.B. engaging in various sex acts with Petrovic to M.B. at her work, to M.B.’s boss, to M.B.’s family members, and to R.B.’s home, where M.B.’s seven-year-old child viewed the pornographic material. Petrovic also repeatedly made harassing phone calls to M.B’s workplace, and physically intimidated M.B. on several occasions — on one such occasion, pursuing M.B. in a rental van at a high rate of speed while M.B. was on her way home from work.
In June 2010, M.B.’s sister was able to have Petrovic’s website shut down for a few days. On June 20, 2010, Petrovic relaunched the site and posted a message stating, “Nobody can stop me to publish this website” and offering to shut down the site if M.B. gave him his “furniture, what she stoled [sic] from me, the wedding and engagement ring, ... and $100,000.” M.B. did not comply with Petrovic’s demands, and the website remained operational. On July 19, 2010, Petrovic was arrested by United States Postal Inspectors.
On October 6, 2010, a grand jury indicted Petrovic with, among other charges, four counts of interstate stalking, in violation of 18 U.S.C. § 2261A(2)(A), and two counts of interstate extortionate threat, in violation of 18 U.S.C. § 875(d). Petrovic moved to dismiss the four stalking charges on the grounds the statute violated the First Amendment both facially and as applied to Petrovic. The district court denied this motion. …
II. Discussion …Petrovic first argues 18 U.S.C. § 2261A(2)(A),2 the interstate stalking statute, violates his right to freedom of speech under the First Amendment to the United States Constitution. Petrovic contends the statute is unconstitutional both facially and as applied to him. We review First Amendment challenges de novo.
“[W]hen ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” United States v. O’Brien, 391 U.S. 367, 376 (1968). A governmental regulation satisfies this standard if (1) “it is within the constitutional power of the Government”; (2) “it furthers an important or substantial governmental interest”; (3) “the governmental interest is unrelated to the suppression of free expression”; and (4) “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Id. at 377.
Petrovic contends § 2261A(2)(A) fails O’Brien’s four-pronged test in his case. However, we need not reach the merits of the O’Brien test if, as a preliminary matter, we determine the communications for which Petrovic was convicted under the statute are not protected by the First Amendment. Because we hold Petrovic’s communications fall outside the First Amendment’s protection, we do not reach the merits of the O’Brien test.
The First Amendment provides “Congress shall make no law ... abridging the freedom of speech.” While it generally “means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,” Ashcroft v. A.C.L.U., 535 U.S. 564, 573 (2002), certain “well-defined and narrowly limited classes of speech” permit content-based restrictions on speech, United States v. Stevens, 559 U.S. ___ (2010). One such category is “speech integral to criminal conduct.” Id.; see also Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949).
The jury convicted Petrovic of two counts of interstate extortionate threat in violation of 18 U.S.C. § 875(d) for his December 28, 2009 and June 20, 2010 communications. The communications for which Petrovic was convicted under § 2261A(2)(A) were integral to this criminal conduct as they constituted the means of carrying out his extortionate threats. See Giboney, 336 U.S. at 498, 501-02 (enjoining otherwise lawful picketing activities did not offend the First Amendment when the purpose of the picketing was to compel a company to unlawfully enter into an agreement in restraint of trade). Petrovic threatened to destroy M.B.’s reputation if she terminated their sexual relationship. When M.B. ended the relationship, Petrovic carried out this threat. Petrovic also threatened to continue the humiliating communications unless M.B. paid him $100,000, and when M.B. did not comply, Petrovic carried out this threat for continuing harassment as well. Because Petrovic’s harassing and distressing communications were integral to his criminal conduct of extortion under § 875(d), the communications were not protected by the First Amendment.
Furthermore, “where matters of purely private significance are at issue, First Amendment protections are often less rigorous ... because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest.” Snyder v. Phelps, 562 U.S. ___ (2011). We previously have held that in “extreme case[s]” it is “constitutionally permissible for a governmental entity to regulate the public disclosure of facts about private individuals.” Coplin v. Fairfield Pub. Access Television Comm., 111 F.3d 1395, 1404 (8th Cir. 1997). “[A]bsent a compelling state interest,” such speech
can be regulated ... because of its constitutionally proscribable content only if: (1) any such regulation is viewpoint-neutral; (2) the facts revealed are not already in the public domain; (3) the facts revealed about the otherwise private individual are not a legitimate subject of public interest; and (4) the facts revealed are highly offensive.
Id. at 1405.
M.B. was a private individual, and Petrovic’s communications revealed intensely private information about M.B. See id. at 1404-05. Applying the Coplin test, the interstate stalking statute is viewpoint neutral. It proscribes stalking and harassing conduct without making the further content discrimination of proscribing only certain forms of that conduct. See R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 384 (1992). Second, the intimately private facts and photographs revealed by Petrovic were never in the public domain before Petrovic began his campaign to humiliate M.B. Third, the public has no legitimate interest in the private sexual activities of M.B. or in the embarrassing facts revealed about her life. Finally, the information Petrovic publicized to the community was highly offensive. The communications for which Petrovic was convicted under § 2261A(2)(A) may be proscribed consistent with the First Amendment. The statute is not unconstitutional as applied to Petrovic.
Questions1. How would Petrovic have come out if Petrovic had merely intended to harass M.B., rather than extort her?
2. Compare the Coplin test to the elements of the tort of public disclosure of private facts. Are privacy laws automatically constitutional, or do they raise serious First Amendment issues?
3. Petrovic is a man; he wrote insulting and demeaning messages about a woman. Is this a coincidence, or is it part of a larger pattern? Would society be better or worse off with less First Amendment protection for people like him?
True Threats ProblemsAs noted in Petrovic, “true threats,” i.e. “unequivocal, unconditional and specific expressions of intention immediately to inflict injury,” United States v. Kelner, 534 F.2d 1020, 1027 (1976), are unprotected speech. Should it matter whether the speaker subjectively intends to carry out the threat, or only how a reasonable listener would understand it? Are the following true threats?
• A private email by a student to an unknown Internet pen pal, describing the student’s fantasy of abducting, raping, and murdering another student in his dorm:
As I said before, my room is right across from the girl’s bathroom. Wiat until late at night. grab her when she goes to unlock the dorr. Knock her unconscious. and put her into one of those portable lockers (forget the word for it). or even a duffle bag. Then hurry her out to the car and take her away … What do you think?
• A Facebook post complaining about the Drug Enforcement Agency:
I’ll kill whoever I deem to be in the way of harmony to the human reace … Policeman all deserve to be tortured to death and videos made n sent to their families … BE WARNED IF U PULL LE OVER!! IM LIKE JASON VOORHEES WITH A BLOODLUST FOR PIG BLOOD.
• A tweet responding to the closure of an airport due to bad weather:
Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky high!!
• An anti-abortion website that features the names of doctors who perform abortions, along with their home addresses and photographs. Beneath each picture, in an Old West-style font, is the logo “WANTED.” A legend at the top of the page explains, “Black font (working); Greyed-out Name (wounded); Strikethrough (fatality).”
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Notes:5 We are hard-pressed to believe that Mr. Bollea truly desired the affair and Sex Tape to remain private or to otherwise be “swept under the rug.” For example, in March 2012, Mr. Bollea called into TMZ Live, a celebrity and entertainment media outlet, and disclosed that he could not identify the woman in the Sex Tape because he had a number of “conquests” during the time it was filmed. Furthermore, in October 2012, Mr. Bollea appeared on The Howard Stern Show and professed that his good friend, Todd Alan Clem, known professionally as Bubba the Love Sponge, allowed Mr. Bollea to have sex with Mr. Clem’s then-wife Heather Clem. Mr. Bollea was certainly not shy about disclosing the explicit details of another affair he had while married to Linda Bollea in his autobiography.
6 We are aware that Gawker Media is likely to profit indirectly from publishing the report with video excerpts to the extent that it increases traffic to Gawker Media’s website. However, this is distinguishable from selling the Sex Tape purely for commercial purposes.
7 Mr. Bollea cites to the offense of video voyeurism, section 810.145(2)(a), Florida Statutes (2006), and to the offense of interception and disclosure of electronic communications, section 934.03, Florida Statutes (2006), in support of his contention.
8 This opinion should not be construed as making a ruling regarding whether or not the information itself was intercepted unlawfully by Gawker Media’s source.
4 Contrary to the dissent's position, Shack and Stuart are distinguishable because they addressed statutes that criminalized conduct—repeated telephone harassment and stalking—without regard to the content of any communication. Here, however, the Albany County law facially allows law enforcement officials to charge a crime based on the communicative message that the accused intends to convey, as evidenced by the fact that defendant was prosecuted because of the offensive words he wrote on Facebook.
i. [Ed: This case involves allegations of online harassment and threats of violence.]
2 “Whoever ... with the intent ... to ... injure, harass, or place under surveillance with intent to ... injure, harass, or intimidate, or cause substantial emotional distress to a person in another State ... uses the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to that person or places that person in reasonable fear of ... serious bodily injury ... shall be punished as provided in section 2261(b) of this title.”
