Crime to e-mail your roommate’s girlfriend saying ‘he really is a useless person’?

April 9, 2014

So says a state prosecutor, arguing in front of New York’s highest court. Here’s the quote from the transcript, or you can find it in the oral argument video:

JUDGE PIGOTT: So if … you get some college kid who write – – – who e-mails the girlfriend of his roommate saying, you know, he really is a useless person. Is that aggravated harassment with respect to the victim, boyfriend/roommate?

MR. RIVELLESE: Yes, because it’s got – – –

JUDGE PIGOTT: Really?

MR. RIVELLESE: It meets all the elements. It does not require that the person that you send the communication to is the same person that you intend to harass, annoy and alarm. It’s – – -

I’ve blogged before about the danger of criminal harassment laws, when they are extended beyond offensive speech to one particular unwilling person — the traditional telephone harassment example — and apply instead to speech about a person. (See posts here and here, as well as this law review article, which starts by concrete examples of how such laws have been used.) And the prosecutor’s statement in this argument helps illustrate just how broadly prosecutors can read such laws.

The argument came in People v. Golb, which is primarily focused on the defendants’ impersonating a target in e-mail messages (messages related to academic controversies about Dead Sea Scrolls scholarship, of all things). Such impersonation, I think, is constitutionally unprotected and should indeed be punished, so long as the impersonation is intended to and is likely to deceive recipients (as opposed to being obvious parody). And it’s conceivable that even the criminal harassment charges in the case could be upheld, if the criminal harassment statute is read narrowly to apply only to unprotected categories of speech (such as impersonation that hurts the impersonated person’s reputation).

But the prosecutor would read the statute much more broadly, which reminds us of the danger — often noted on this blog — of broadly written harassment or “bullying” statutes.

Thanks to Ira Matetsky for pointing me to the transcript and video.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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