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A crime for teenagers to excoriate their unfaithful or abusive lovers on Facebook?

The Colorado House of Representatives Education Committee passed this bill (H.B. 14-1131) by a 12-0 vote; on Friday morning, the Appropriations Committee will be considering it):

(a) A person may not use an interactive computer service to engage in a course of conduct that inflicts serious emotional distress on a minor or places a minor in reasonable fear of death or serious bodily injury with the intent:

(i) to kill, injure, harass, or cause serious emotional distress to the minor; or

(ii) to place the minor in reasonable fear of death or serious bodily injury.

(b) for purposes of this subsection, a victim need not show that he or she received professional treatment or counseling to show that he or she suffered serious emotional distress.

Violations of the law would be a misdemeanor criminal offense.

Now the punishment for threats — communications intended to put someone in reasonable fear of death or serious injury — strikes me as quite sensible. Such true threats are constitutionally unprotected (see United States v. Watts, 1969), and should indeed be punished.

But the ban on intentionally causing “serious emotional distress” to a minor is far broader. For instance, it would likely cover, among many other things:

  1. A 17-year-old girl who learns that her 17-year-old boyfriend was cheating on her, and posts two or more Facebook posts harshly condemning him, hoping that her friends will socially ostracize him (something that she hopes will seriously distress him).
  2. A 17-year-old girl who learns that her boyfriend has knowingly communicated a sexually transmitted disease to her and e-mails several friends about this, venting her anger at him and hoping that he will finally start feeling seriously distressed about he has treated her.
  3. A newspaper columnist who excoriates an underage criminal — or cheating high school athlete — several times, hoping that the criminal or cheater will feel ashamed and publicly condemned.
  4. A high school student who repeatedly e-mails friends — or teachers or parents — about a 17-year-old student’s bullying or racist epithets or cheating, hoping and expecting that the other student will be shamed into changing his ways or at least admitting his guilt.

Each of these things may be seen by a prosecutor, judge or jury as likely to cause “serious emotional distress,” whatever that vague term means. (When ordinary “emotional distress” becomes “serious emotional distress” is hardly well-defined, especially with the clarity we should expect from criminal statutes.) It might well be intended to cause “serious emotional distress” — shame, humiliation, loneliness, a sense of condemnation by friends and neighbors.

It will be communicated through an interactive computer service. (The newspaper column, for instance, will almost certainly be carried on the Web, and that’s enough.) And while “course of conduct” isn’t defined in Colorado law, the law in other states suggests that two or more incidents would suffice. So, each of these people would end up being a criminal under the proposed bill, so long as the person is found to have intentionally created serious emotional distress.

I realize that people are worried about teenagers taunting one another online. I realize that in some situations (fortunately, a tiny fraction of all taunting incidents) such taunting has contributed to teenagers’ suicide. But I’m not sure there’s any way of clearly defining which distressing speech about minors should be criminal and which shouldn’t be — any more than there’s a way of clearly defining, for instance, which emotionally cruel romantic breakups (a form of cruelty that has at times also led to suicide) should be criminal.

And, in any event, this statute surely doesn’t offer any such distinction. It isn’t limited to speech to a person (as traditional telephone harassment statutes have done, for instance) but also covers speech about a person. It covers any multiple online communications that intentionally inflict serious emotional distress, however commonplace and justifiable they might be. It covers even speech on publicly significant topics, such as crime or cheating by juveniles. It covers still more speech about people’s daily lives (such as the romantic breakup). I hope Colorado legislators stop the bill before it becomes an unwise and unconstitutional law.

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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Will Baude · March 5, 2014

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