In my previous two posts (here and here), I have discussed what commentators term “cyberharassment,” Cyberharassment is generally defined as an instance of online communication intended to harass, annoy, defame or disparage a particular individual or group. While cyberharassment has received a great deal of media attention recently, law and policymakers have had a difficult time developing an effective means of deterring cyberharassment that does not run afoul of the First Amendment.
Last month, the California Second Appellate District Court of Appeal issued what has been touted as a “landmark” ruling on this issue. The Court of Appeal held that the First Amendment does not protect hostile Internet banter among teenagers if the messages can be taken as genuine threats of harm.
The case, D.C. v. R.R., 182 Cal.App.4th 1190 (2010), concerned a 15-year-old high school student who was the subject of derogatory comments regarding his sexual orientation and threats of bodily harm on his personal website. The student maintained a website to promote his entertainment career. When the anonymous comments began to appear on its guestbook, the student reported the problem to the administration at his high school, as well as several students that he believed were responsible. The students admitted to posting the threats, but the school did not take any significant disciplinary action against the students.
The student filed a claim under a California hate crimes law, as well as claims for defamation and intentional infliction of emotional distress. The court’s analysis focused on the following comment by R.R.:
The court opened its analysis by noting that the First Amendment does not protect all forms of speech. As the Fifth Circuit explained in Shackelford v. Shirley, 948 F.2d 935, 938 (5th Cir. 1991):
Working from this premise, the court discussed R.R.’s comment as a “true threat” — a category of unprotected speech where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence on a particular individual or group. Under an objective test, the court found that a reasonable person would foresee that the post would be interpreted as a “serious expression of an intent to inflict bodily harm.” The court went a step further and found that R.R. subjectively intended that his message be interpreted as a threat. Under either test (courts are split on the appropriate standard), the court made it clear that they would conclude that the statement is not protected speech.
Unsurprisingly, the dissenting opinion takes the majority to task with their somewhat loose application of the true threat doctrine to the facts of the case. As the dissent points out after guiding the reader through several pages of sophomoric insults directed at D.C., “taken together, all of the posts amount to nothing but a lot of adolescent sex-obsessed hyperbolic derision, sarcasm, and repulsive foolishness.”
And, to be honest, it does appear that the dissent has the stronger of the two arguments. While the emotional distress cyberharassment can cause is staggering — as the majority rightfully points out, “children have killed each other and committed suicide after having been involved in a cyberbullying incident” — it is difficult to view R.R.’s comment as a true threat rather than childish banter.
Nevertheless, policymakers may be able to learn a few things about the way the majority and dissent analyze the case. The true threat doctrine could provide a viable framework for lawmakers seeking to criminalize cyberharassment. Many proposed tests, such as the following statutory language discussed in a recent law review article, appear overbroad:
There is a strong claim that speech intended to harass, annoy or embarrass are protected by the First Amendment. Even homophobic, racist and sexist slurs are not crimes if uttered on a sidewalk. As such, cyberharassment statutes should not attempt to combat speech that would be protected by the First Amendment if spoken face-to-face. But a statute that exclusively focuses on criminalizing what meets the judicial interpretation of a “direct threat” will not only pass constitutional muster, it arguably directly combats the most pernicious and damaging forms of cyberharassment while leaving protected speech untouched.
Last month, the California Second Appellate District Court of Appeal issued what has been touted as a “landmark” ruling on this issue. The Court of Appeal held that the First Amendment does not protect hostile Internet banter among teenagers if the messages can be taken as genuine threats of harm.
The case, D.C. v. R.R., 182 Cal.App.4th 1190 (2010), concerned a 15-year-old high school student who was the subject of derogatory comments regarding his sexual orientation and threats of bodily harm on his personal website. The student maintained a website to promote his entertainment career. When the anonymous comments began to appear on its guestbook, the student reported the problem to the administration at his high school, as well as several students that he believed were responsible. The students admitted to posting the threats, but the school did not take any significant disciplinary action against the students.
The student filed a claim under a California hate crimes law, as well as claims for defamation and intentional infliction of emotional distress. The court’s analysis focused on the following comment by R.R.:
I want to rip out your fucking heart and feed it to you. ... I've ... wanted to kill you. If I ever see you I'm ... going to pound your head in with an ice pick. Fuck you… I hope you burn in hell.
The court opened its analysis by noting that the First Amendment does not protect all forms of speech. As the Fifth Circuit explained in Shackelford v. Shirley, 948 F.2d 935, 938 (5th Cir. 1991):
The notion that some expression may be regulated consistent with the First Amendment... starts with the already familiar proposition that expression has special value only in the context of dialogue: communication in which the participants seek to persuade, or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one's beliefs... It is not plausible to uphold the right to use words as projectiles where no exchange of views is involved.
Working from this premise, the court discussed R.R.’s comment as a “true threat” — a category of unprotected speech where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence on a particular individual or group. Under an objective test, the court found that a reasonable person would foresee that the post would be interpreted as a “serious expression of an intent to inflict bodily harm.” The court went a step further and found that R.R. subjectively intended that his message be interpreted as a threat. Under either test (courts are split on the appropriate standard), the court made it clear that they would conclude that the statement is not protected speech.
Unsurprisingly, the dissenting opinion takes the majority to task with their somewhat loose application of the true threat doctrine to the facts of the case. As the dissent points out after guiding the reader through several pages of sophomoric insults directed at D.C., “taken together, all of the posts amount to nothing but a lot of adolescent sex-obsessed hyperbolic derision, sarcasm, and repulsive foolishness.”
And, to be honest, it does appear that the dissent has the stronger of the two arguments. While the emotional distress cyberharassment can cause is staggering — as the majority rightfully points out, “children have killed each other and committed suicide after having been involved in a cyberbullying incident” — it is difficult to view R.R.’s comment as a true threat rather than childish banter.
Nevertheless, policymakers may be able to learn a few things about the way the majority and dissent analyze the case. The true threat doctrine could provide a viable framework for lawmakers seeking to criminalize cyberharassment. Many proposed tests, such as the following statutory language discussed in a recent law review article, appear overbroad:
Under Congress's Article I commerce power, it shall be unlawful for any person or group, known or anonymous, to utilize a computer network form of electronic communication to target a specific person for no defined purpose, and through the use of words or language, aim to harass, annoy, embarrass, abuse, threaten, induce fear of bodily harm, or a combination thereof, in a victim.
There is a strong claim that speech intended to harass, annoy or embarrass are protected by the First Amendment. Even homophobic, racist and sexist slurs are not crimes if uttered on a sidewalk. As such, cyberharassment statutes should not attempt to combat speech that would be protected by the First Amendment if spoken face-to-face. But a statute that exclusively focuses on criminalizing what meets the judicial interpretation of a “direct threat” will not only pass constitutional muster, it arguably directly combats the most pernicious and damaging forms of cyberharassment while leaving protected speech untouched.
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1 comments:
This is a helpful assessment of the recent decision. Have other top state courts ruled similarly? How split are the First Amendment jurists and scholars on the issue of what constitutes a "true threat"? Interestingly, in a new book called The Offensive Internet edited by Martha Nussbaum and Saul Levmore, nearly all of the book contributors are unanimous in their critique of cyberharassers and their assessment that this is not speech protected by the First Amendment (only Geof Stone disagrees).
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