From: <djg2120@columbia.edu>
  To  : <CPC@emoglen.law.columbia.edu>
  Date: Sat, 18 Feb 2006 00:17:08 -0500

Essay 1

      In reauthorizing the Violence Against Women Act, Congress
recently passed legislation making it a federal crime to "annoy,
abuse, threaten or harass" someone on the Internet without using
one’s real name.  Purportedly necessary to prevent cyber-stalking ,
the law poses sever challenges to the exercise of First Amendment
rights in cyberspace.
	Ironically, the justification Congress provided for the statute is
relatively narrow. According to the statute’s primary sponsor, Rep.
Jim McDermott (D-Washington), the statute was motivated by the
cyber-stalking of a Seattle woman who received threatening emails
and was impersonated in sex-related chat rooms.  Given the rather
narrow malaise the statute is supposed to prevent, it is
interesting that Congress made it a crime to “annoy” another person
in cyberspace without qualifying the meaning of that term. Likewise,
the statute makes it illegal to “annoy” another person only when the
annoyance occurs without disclosing one’s real name. This limitation
is reveals an attack on anonymity rather than a rational response to
cyber-stalking. If the statute is taken at face value and
interpreted by its plain meaning, is it somehow legal to “annoy”
someone provided that one’s identity is disclosed? The deliberate
vagueness of the statute coupled with its sweeping nature creates a
severe threat to anonymous speech on the Internet.
	It is especially unconvincing for the government to argue that
preventing “cyber-stalking” is the justification for this law. If
that were the case, it would seem logical to limit the scope of the
statute to cases that can reasonably be construed as cyber-stalking.
“Annoy[ing]” another person is far different from stalking,
particularly since stalking involves a continuous stream of
contacts toward a specific, targeted victim. Instead of focusing on
this, the statute criminalizes annoyance, regardless of whether the
offender has targeted a specific victim or simply posted his or her
opinions anonymously on the web. It is absurd that blogging can
trigger the statute, particularly since an unknown ‘victim’ could
stumble across the message at no fault of the poster. The result is
that the blogger can now be punished under a federal anti-stalking
statute even though he or she had no contact with the ‘victim.’
	The result is that the constitutional right to anonymous speech is
imperiled. Anonymity is a constitutionally protected element under
the First Amendment, as explained by the Supreme Court in McIntyre
, where the Court upheld the anonymous distribution of pamphlets.
It seems obvious that confronting someone, entering close physical
proximity with them and hawking a pamphlet is far more “annoying”
(and threatening) than posting one’s beliefs anonymously on the
Internet. If the physical distribution of pamphlets by anonymous
individuals is constitutionally protected, it is counter-intuitive
to restrict the mere posting of opinions on message boards,
particularly since the ‘victim’ has the option to ignore a message,
whereas someone walking down the street has little protection from
confrontation with pamphleteers.
	In constitutional terms, the statute bypasses the strict standard
of review typically required when the government attempts to
regulate “core” political speech.  The state has the burden of
proving a vital governmental interest coupled with narrowly
tailored means before it can curtail the expression of political
speech.  The statute bypasses this requirement through preemption,
in that “core” political speech on the Internet is now
presumptively illegal if it “annoy[s]” someone. This is far
different from typical First Amendment cases, which traditionally
involve a particularized instance of the government attempting to
regulate a specific speech act. In contrast, the statute removes
the particularity of the conflict and applies a blanket restriction
on all speech that is considered “annoy[ing].” The consequence is
that the government no longer has to wage court battles to regulate
a speech act. The statute inverts the burden requirement and places
it on the speaker to disprove annoyance rather than requiring the
government to prove a vital interest. This will be a nearly
impossible burden for the citizen to meet given the vague
terminology of the statute, as any speech act is potentially
offensive to someone. The result is that the state can now bypass
the strict scrutiny requirement for infringing on speech.
	Unfortunately, the practical easing of the government’s burden of
proof in limiting speech acts is not the most insidious effect of
the statute. The greater danger lies in the construction of a
system of self-regulation, whereby the subjective nature of the law
raises the specter of criminal prosecution at every turn. As Eugene
Volokh argues, the statute is so broad that it leaves very little
guidance regarding what can be legally said.  The law creates a
panoptic effect  by creating a culture of fear regarding what we
say on the Internet. This can only result in deterring speech- even
speech that falls within the protected realm of “core” political
speech.
	This cannot be an accident, as the essence of a panoptic
surveillance system is to utilize the inmates as agents of their
own control. Much like Bentham’s prison system, the element of
uncertainty regarding criminal prosecution of speech is likely to
create important incentives for Internet users. The inability to
know whether one’s speech constitutes a federal crime will lead a
cautious individual to simply keep quiet, just as a prisoner’s
uncertainty of being watched will curtail certain behaviors. The
key distinction between Bentham’s model and the new system
supported by the Act is that anonymous Internet users are subjected
to surveillance despite their innocence.
	The result of muddying the waters in terms what is and is not
illegal is intended to produce a system of self-policing based on
fear of consequence. This permits the government to obtain the
desired outcome- censorship- without expending the typical
litigation costs necessary to censor a speech act. Moreover, the
government is able to wholly sidestep typical First Amendment
challenges to individual acts of censorship- if speech is deterred
before it can be uttered there is no need to fight retroactively to
censor it. Thanks to the reauthorized Violence Against Women Act,
citizens will now police themselves while keeping the government’s
costs down.

Notes:
[1]  47 U.S.C. § 223(a)(1)(C); (h)(1)(C) (2006).

[2]  “New Cyberstalking Law Opens Debate on What’s Annoying,” USA
TODAY, Feb. 15, 2006. Available at:
http://www.toptechnews.com/story.xhtml?story id=03300000TGFI

[3]  Id.

[4]  514 U.S. 334 (1995).

[5]  Buckley v. American Constitutional Law Foundation, Inc., 525
U.S. 182, 207 (1999).

[6] See, e.g., Rutan v. Republican Party of Illinois  497 U.S. 62,
74 (1990).

[7]  Eugene Volokh is a law professor at UCLA. His discussion of the
reauthorized Violence Against Women Act can be found on his blog,
“The Volokh Conspiracy,” at
http://volokh.com/archives/archive 2006 01 08-2006 01 14.shtml#1136873535.

[8]  For a discussion of the panopticon and surveillance, see Clive
Norris & Michael McCahill, CCTV: Beyond Penal Modernism?, 46 Brit.
J. Criminology 97, 97 (2006).
                    

Word Count: 999

Daniel Grimm
djg2120@columbia.edu

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