New Jersey Cyber-Harassment Bill Would Criminalize 'Indecent' and Annoying Speech
June 17, 2013
by Susan Kruth
A proposed bill in the New Jersey state legislature would define the crime of "cyber-harassment" as "send[ing], post[ing], comment[ing], request[ing], suggest[ing], or propos[ing] any lewd, indecent, or obscene material to or about a person" online "with the purpose to harass another." Because the terms "indecent" and "harass" could both be read broadly under this law, and because the statute prohibits speech about a person (like, say, a state legislator) even if it is simply said in public and not to that person specifically, the statute would criminalize a significant amount of protected speech.
As Eugene Volokh notes at The Volokh Conspiracy, "'[P]urpose to harass' seems to be treated by New Jersey courts as simply meaning, purpose 'to annoy or alarm.'" With such a broad definition, cyber-harassment would include online sharing of political commentary and parodies like the fake Campari ad that the Supreme Court held protected in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).
This isn't the first time attempts to combat bullying in New Jersey have threatened constitutionally protected speech. Earlier this year, Montclair State University student Joseph Aziz was suspended for his Facebook comments about another classmate's body and ordered not to make any further comments about the woman on social media. In trying to justify the punishment, Montclair State initially cited New Jersey's anti-bullying law but eventually conceded that Aziz's comments fell short of the law's definition of bullying and rescinded the suspension.
New Jersey's anti-bullying law (PDF) comes with its own problems, as FIRE's Will Creeley has discussed here on The Torch. As with New Jersey's proposed cyber-harassment bill, this law puts students at risk for engaging in a substantial amount of speech that, while perhaps uncomfortable or offensive to some students, is nevertheless protected by the First Amendment. Will explained:
Simply put, the law is both impermissibly vague and startlingly broad. By outlawing all student speech that "is reasonably perceived as being motivated either by any actual or perceived characteristic" and that "a reasonable person should know" will "have the effect of ... emotionally harming a student" or "placing a student in reasonable fear of ... emotional harm," New Jersey is mandating that adult students appraise the sensibilities and frailties of their fellow students before speaking. This is a bizarre requirement, and one that is impossible to square with the Supreme Court's clear holdings with regard to offensive speech.
FIRE hopes that New Jersey legislators recognize that freedom of speech cannot be sacrificed by a state government in this manner. Students—and citizens—do not have a right to never be uncomfortable, or to be shielded from ideas or statements that they find merely annoying or alarming.