The Constitution protects the right to free speech, but does that allow for online harassment and cyberstalking?
The first amendment of the United States Constitution states the following:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Purists take this law to mean that no laws should be made that restrict an individual or groups right to say or publish anything – up to and including the promotion of violence and criminal activities. A review of the careful wording shows there is a second possible interpretation of this particular amendment.
According to Webster’s Dictionary, 1 the word “abridged” has the following meanings:
- To make shorter; to shorten in duration; to lessen; to diminish; to curtail; as, to abridge labor; to abridge power or rights.
- To shorten or contract by using fewer words, yet retaining the sense; to epitomize; to condense; as, to abridge a history or dictionary.
- To deprive; to cut off; — followed by of, and formerly by from; as, to abridge one of his rights.
Within these definitions, there is a great deal of room for interpretation. My own belief of the intention of the framer’s in respect to the freedom of speech is that “congress shall make no law depriving an individual of the freedom of speech or of the press.” The proximity to the right “peaceably to assemble” is no accident in my opinion. The framers were in fact well aware that there would be those who wished to use speech or other media of a hateful nature to incite both criminal and violent acts.
This impacts such broad topics as racist language or other hate speech, but can also be applied to something that came about as a direct result of the development of the internet and world wide web. Cyber-stalking is defined by Black’s Law Dictionary as:
“A course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose” or “Words, gestures, and actions which tend to annoy, alarm and abuse (verbally) another person.” 2
Cyber-Stalking.net offers a clearer description of the federal law (18 U.S.C. § 2261A) and explains that cyber-stalking is limited to circumstances that “place the victim in reasonable fear of death or bodily injury.” 3 While this at first seems to limit the scope of cyber-stalking to cases where the person is directly exposed to danger, it actually defines “bodily injury” as:
- a substantial risk of death;
- extreme physical pain;
- protracted and obvious disfigurement; or
- protracted loss or impairment of the function of a bodily member, organ, or mental faculty;
It is under “D” that the most protection can be found. Any traumatic event can cause a protracted loss or impairment of mental faculty if the individual is unable to cope with it. A diagnosis of Panic Disorder, Acute Stress Disorder, Post Traumatic Stress Disorder, or Generalized Anxiety Disorder can severely disrupt an individual’s ability to function. The impairment can make it difficult to work and can lead to a complete disability in severe cases.
What Causes Impairment?
The question with regards to cyber-stalking is what sort of activity it would take to cause impairment to mental faculty. Recent cases have involved the sending of emails threatening everything from bodily harm to rape or murder. They have also involved acts of indirect violence such as vandalism or leaving behind objects that imply a greater threat. 4
In a Baltimore, Maryland case Warren Gray, a 19-year old man plead guilty to Federal Charges of cyber-stalking for a series of threatening emails as well as additional implied threats. These additional acts included slashing the tires of his victim’s car, and leaving a hatchet behind to imply a greater threat of harm.
Cases where a direct threat has not been issued can also qualify under the federal statute however. Currently Yahoo! Is under fire for violating its own Terms Of Service agreement and hosting a variety of hate groups. While this has not been applied to the online harassment or stalking of an individual, I feel the same should be applied. A personal attack against an individual can impact the view others have of said individual. This could potentially damage the individual’s self-esteem to such a degree that they meet the criteria for one of the above Psychological Disorders. Such attacks also damage the credibility of the individual in the eyes of others. 5
There is actually a legal history in this, in 1942 in the case of Chaplinsky v. New Hampshire 6 it was ruled that “fighting words” were outside the protection of the First Amendment. They basically ruled that a direct insult or slanderous remark against another “which by their very utterance inflict injury” is not protected. The ruling stated that the use of such words, in this case “damned fascist” and “damned racketeer”, are “epithets likely to provoke the average person to retaliation and thereby cause a breach of the peace.”
Applying this ruling to cyber-stalking cases would seem to offer a way to force the removal of hate speech geared towards an individual, but is also has implications in the larger issues of racist and hate speech in general.
“No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.”