Contributor, The Volokh Conspiracy

My student Elizabeth Arias and I — with the invaluable help of local counsel Michael F. Smith (who has also helped us with Michigan cases) — have just filed a friend-of-the-court brief in one of the latest cases in the Aaron Walker/Brett Kimberlin saga. This brief supports Aaron Walker’s challenge to Maryland Criminal Law § 3-805(b)(2)(i) [UPDATE: link added], which bans “malicious” speech “that inflicts serious emotional distress on a minor … with the intent … [to] harass, or cause serious emotional distress to the minor”; the statute notably omits any exception for factual communications, for political speech or speech with a legal purpose (exceptions that do apply to the accompanying sections that ban criminal harassment more broadly):

(b)(1) A person may not maliciously engage in a course of conduct, through the use of electronic communication, that alarms or seriously annoys another:

(i) with the intent to harass, alarm, or annoy the other;

(ii) after receiving a reasonable warning or request to stop by or on behalf of the other; and

(iii) without a legal purpose.

(2) A person may not use an interactive computer service to maliciously 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….

(d) Subsection (b)(1) of this section does not apply to a peaceable activity intended to express a political view or provide information to others.

(e) A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 1 year or a fine not exceeding $500 or both. [Emphasis added.]

Here is our brief, filed on behalf of the Marion B. Brechner First Amendment Project, which is run by Prof. Clay Calvert (you can also read the PDF):

I. Section 3-805(b)(2) is a content-based speech restriction.

All or nearly all of what Maryland Criminal Law § 3-805(b)(2) restricts is speech: blog posts, social media posts, e-mail messages about classmates, Snapchats, and the like. And the statute’s reference to a “course of conduct” cannot keep it from being a speech restriction, as the Supreme Court’s decision in Holder v. Humanitarian Law Project, 561 U.S. 1 (2009), makes clear.

In Holder, the Court considered a statute aimed at the conduct of providing “material support to terrorist organizations.” Id. at 7. Unlike the Maryland law, the “material support” statute applied mainly to conduct, such as the provision of funds, military services, and the like. Id. at 26. And the government argued that the law “should … receive [only] inter­me­di­ate scrutiny because it generally functions as a regulation of conduct.” Id. at 27.

But the Court held that, even though the law “may be described as directed at conduct,” when “the conduct triggering coverage under the statute consists of communicating a message,” the law should be viewed as a speech restriction. Id. at 28. The Maryland statute is even more clearly a speech restriction: virtually everything that “trigger[s] coverage under the statute consists of communicating a message.”

The Holder Court also held that the “material support” statute was content-based: “[The statute] regulates speech on the basis of its content. Plaintiffs want to speak … and whether they may do so … depends on what they say.” Id. at 27. And when a “generally applicable law” is applied to speakers “because of what [their] speech communicate[s]” — for instance, “because of the offensive content of [a speaker’s] particular message” — the law must be subjected to the strict scrutiny applicable to content-based restrictions. Id. at 28.

The Maryland statute is similarly content-based. Whether people in Maryland can speak lawfully depends on what they say: A scathing review of a teen idol’s newest single might seriously distress the singer, and thus trigger the statute, but a positive review will not; a harsh condemnation of a cheating ex-boyfriend might be seriously distress the ex, but praise of the ex will not. The law is applied to speakers “because of what [their] speech communicate[s],” including because of its “offensive content.” It must therefore be treated as a content-based speech restriction.

Indeed, the North Carolina Supreme Court has recently held that a similar North Carolina statute, which banned posting “[any] private, personal, or sexual information pertaining to a minor” “[w]ith the intent to intimidate or torment a minor” was likewise a speech restriction, and not just a restriction on conduct. State v. Bishop, __ N.C. __; 2016 WL 3221098 (N.C. June 10, 2016). “Posting information on the Internet — whatever the subject matter — can constitute speech as surely as stapling flyers to bulletin boards or distributing pamphlets to passersby — activities long protected by the First Amendment.” Id. at *8.

As North Carolina’s Supreme Court noted, “[s]uch communication does not lose protection merely because it involves the ‘act’ of posting information online, for much speech requires an ‘act’ of some variety — whether putting ink to paper or paint to canvas, or hoisting a picket sign, or donning a message-bearing jacket.” Id. And because the North Carolina statute “makes it impossible to determine whether the accused has committed a crime without examining the content of his communication,” the court held, it constitutes a content-based speech restriction, despite the state’s aim of protecting minors. Id. at *13. Likewise, because it is impossible to determine whether a speaker has violated § 3-805(b)(2) without considering whether the content of the speech was seriously distressing, Maryland Criminal Code § 3-805(b)(2) is a content-based speech restriction.

II. Section 3-805(b)(2) prohibits or deters a broad range of speech about people’s daily lives.

Consider a high-school girl who wants to write a Facebook post revealing the details of her breakup with a cheating ex-boyfriend. She may well be subject to criminal prosecution under the statute, even if what she says is true. It is certainly possible that the ex will suffer “serious emotional distress” from being condemned as a cheater to his friends.

Indeed, a recent New Jersey decision went so far as to conclude that a classmate’s accurately saying that a fourth-grader had head lice could constitute “harassment, intimidation, or bullying.” W.C.L. v. Bd. of Educ. of Borough of Tenafly, #15-13 (N.J. Comm’r of Ed. Jan. 10, 2013), http://www.nj.gov/education/legal/commissioner/2013/jan/15-13.pdf. If such speech among classmates can be labeled harassment, then speech revealing a teenager’s infidelity could likewise be seen as seriously distressing.

And the ex-girlfriend might be found to have had the intent to harass or to seriously distress, given her understandable anger at her ex-boyfriend. Moreover, because “harass” simply means “to annoy persistently,” Galloway v. State, 365 Md. 599, 627-28 (2001), then a sequence of posts talking about her ex-boyfriend’s cheating might qualify as intended to “harass” even if the girl intended only to make him feel ashamed (and thus annoy him) and not to seriously distress him.

But even if the girl’s intentions are good — if she just wants to warn her acquaintances so that they will not be fooled by the ex in the future, or she just wants to truthfully explain to her friends why she is feeling depressed — she may worry that a prosecutor, judge, and jury will mistakenly assume that she is motivated by a desire to seriously distress. Indeed, in FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), the U.S. Supreme Court rejected a similar attempt to regulate speech based on the speaker’s intentions, precisely because such intent-based tests tend to deter even well-intentioned speech.

In Wisconsin Right to Life, the government urged the Court to uphold a statute restricting corporate election-related speech by reading the statute as limited to speech that is intended to influence an election. Id. at 465. But the Court rejected such an intent-based test, because “[n]o reasonable speaker would choose to [speak when] covered by [an intent-based statute] if its only defense to a criminal prosecution would be that its motives were pure. An intent-based standard ‘blankets with uncertainty whatever may be said,’ and ‘offers no security for free discussion.’” Id. at 468 (Roberts, C.J., lead op.); id. at 492 (Scalia, J., concurring in part and in the judgment) (similarly concluding that “test[s] that [are] tied to … a court’s perception[] of . . . intent” are “ineffective to vindicate the fundamental First Amendment rights” of those against whom the intent-based law is applied).

The same applies to the high-school girl in the hypothetical, and to many other speakers. Section 3-805(b)(2) “blankets with uncertainty” whatever the girl might say online that condemns her ex-boyfriend and that might seriously distress him. The statute “offers no security” for her to freely discuss her life with her classmates and friends. And the U.S. Supreme Court has recognized that whether a law chills speech (even when it does not unambiguously forbid the speech) counts in determining whether the law is unconstitutionally overbroad, because such a chill “silences some speakers whose messages would be entitled to constitutional protection.” Reno v. ACLU, 521 U.S. 844, 879 (1997).

Nor does the § 3-805(b)(2) requirement that the defendant act “maliciously” add any protection for speakers. Presumably an intent to seriously distress or even to harass would be seen as sufficient to satisfy the “maliciously” requirement. Indeed, the only Maryland criminal statute that defines “maliciously,” Md. Crim. L. § 6-101 (which deals with arson), defines the term to simply mean “acting with intent to harm a person or property,” which would presumably cover an intent to distress or harass. A speaker who is condemning her classmate, even out of the best intentions, might indeed worry that prosecutors, judges, and juries will think she is speaking “maliciously” and with an intent to “harass” or “seriously distress.”

III. The restricted speech is protected by the First Amendment.

Section 3-805(b)(2) thus punishes or deters a wide range of speech. This speech is constitutionally protected, and § 3-805(b)(2) is thus unconstitutionally overbroad on its face.

Speech about people’s daily lives — about their romantic breakups, tensions with classmates, and other such matters — is fully protected by the First Amendment, even when it lacks a political dimension. “Most of what we say to one another lacks ‘religious, political, scientific, educational, journalistic, historical, or artistic value’ (let alone serious value), but it is still sheltered from government regulation.” United States v. Stevens, 559 U.S. 460, 479 (2010). “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits… . Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worthy.” Id. at 470. “The First Amendment does not protect speech and assembly only to the extent that it can be characterized as political … .” United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217, 223 (1967).

Nor does such speech lose protection simply because it may psychologically harm minors. A limited category of materials — obscene-as-to-minors material — may indeed be criminalized under “variable obscenity” statutes on the grounds that such speech may harm minors. Ginsberg v. New York, 390 U.S. 629, 673 (1968). But the U.S. Supreme Court has rejected attempts to expand this narrow category of restrictable speech. For example, the goal of protecting minors did not save a restriction on drive-in theaters displaying movies that depict nudity. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 213-14 (1975). More recently, this goal failed to save a restriction on the sale of violent video games to minors. Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 791-93 (2011). It likewise cannot save a law that suppresses (among other things) minors conveying facts and opinions about their ex-boyfriends or their classmates.

Indeed, the North Carolina Supreme Court’s recent Bishop decision expressly rejected criminal liability for speech that intentionally “torment[s]” a minor, even when that statute was limited (as § 3-805(b)(2) is not) to speech that reveals “private, personal, or sexual information pertaining to a minor.” __ N.C. __; 2016 WL 3221098, 17-18. “[R]eading the motive [to torment] and subject matter requirements in tandem here does not sufficiently narrow the extensive reach of the cyberbullying statute,” because the law “could criminalize behavior that a robust contemporary society must tolerate because of the First Amendment, even if we do not approve of the behavior.” Id. at 18.

Section 3-805(b)(2) is also broad enough to punish even speech about matters of public concern, such as

The First Amendment protection especially clearly safeguards this type of speech, regardless of the speaker’s purposes. “[I]n the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment… . [E]ven when a speaker or writer is motivated by hatred or ill will his expression [is] protected by the First Amendment.” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 53 (1988) (citing Garrison v. Louisiana, 379 U.S. 64, 73 (1964)); see also Snyder v. Phelps, 562 U.S. 443, 452 (2011) (applying Hustler to speech on matters of public concern, whether or not it involves public figures).

Indeed, because crime is an issue of public concern, the First Amendment protects a newspaper’s right to publish the name of a rape victim (even though such speech can deeply distress the victim), and the name and picture of a criminal suspect, even when that suspect is only eleven years old. See Florida Star v. B.J.F., 491 U.S. 524, 541 (1989); Oklahoma Pub. Co. v. Dist. Court, 430 U.S. 308, 311-12 (1977). Likewise, the First Amendment protects ordinary citizens discussing similar matters of public concern, even when that discussion distresses a minor. See Citizens United v. FEC, 558 U.S. 310, 341 (2010) (reaffirming that the First Amendment protects all speakers equally, whether or not they are members of the institutional media).

Section 3-805(b)(1), which applies to speech that seriously annoys adults, expressly exempts speech that has a “legal purpose,” and § 3-805(d) makes clear that § 3-805(b)(1) “does not apply to a peaceable activity intended to express a political view or provide information to others.” The Court of Appeals held that such exclusion of protected speech is what made § 3-805(b)(1) constitutional: “[The statute] expressly eliminates constitutionally protected speech from its ambit. [The statute] ‘does not apply to any peaceable activity intended to express political views or provide information to others’ and the conduct to be prohibited must have no ‘legal purpose.’” Galloway v. State, 365 Md. 599, 644 (2001).

But § 3-805(b)(2) lacks any exclusion for speech that has a “legal purpose,” and § 3-805(d) carves out an exception for information or political speech only from (b)(1), not to (b)(2). Under the logic of Galloway, § 3-805(b)(2) thus lacks the protections that would make the provision constitutional.

IV. The analogy to the intentional infliction of emotional distress tort does not save § 3-805(b)(2) from overbreadth.

Section 3-805(b)(2) also cannot be justified by analogy to the intentional infliction of emotional distress tort.

1. The emotional distress tort is limited to “extreme and outrageous” behavior. When the Court of Appeals recognized the emotional-distress tort, it expressly endorsed the Restatement of Torts language describing the “extreme and outrageous” element: “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Harris v. Jones, 281 Md. 560, 567 (1977). Following this, many Maryland decisions have held that even highly distressing behavior is generally not extreme and outrageous. See, e.g., Lasater v. Guttmann, 194 Md. App. 431, 443 (2010) (holding that a husband’s pattern of lying about his income, engaging in extramarital affairs, losing his temper, and publicly embarrassing his wife was not extreme and outrageous); Hines v. French, 157 Md. App. 536, 546 (2004) (holding that a police officer’s laughing while slamming the plaintiff’s recently-operated-on face into the side of a car, and handcuffing the plaintiff so tightly that the cuffs made lacerations, was not extreme and outrageous); Hamilton v. Ford Motor Credit Co., 66 Md. App. 46, 59 (1986) (holding that the defendant’s incessant and hostile calling of the plaintiff at all hours to collect a debt “was unquestionably rude, insensitive, callous, and in poor taste,” but not extreme and outrageous).

Yet § 3-805(b)(2) is not confined by an “extreme and outrageous” speech requirement. It thus criminalizes speech that would not even create civil liability under the emotional-distress tort. A high-school girl’s post angrily denouncing her ex-boyfriend for cheating on her is not “extreme in degree”; indeed, such speech is likely quite common. Nor is it “atrocious, and utterly intolerable in a civilized community.” It is thus immune even from tort liability. But § 3-805(b)(2) would criminalize it, so long as a prosecutor and a judge finds that it was intentionally “seriously distressing.”

2. While the emotional-distress tort creates only civil liability, § 3-805(b)(2) subjects the speaker to criminal liability. Criminal laws especially chill speech: “The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images.” Reno v. ACLU, 521 U.S. 844, 872 (1997). And the “extreme and outrageous” test, even if constitutionally permissible in a civil case, is likely unconstitutionally vague when applied to deprive someone of his liberty. Cf., e.g., Smith v. Goguen, 415 U.S. 566, 575-78 (1974) (holding that a ban on “contemptuous[]” treatment of the American flag was unconstitutionally vague, 15 years before the Court held that there was a substantive constitutional right to desecrate the flag).

3. The emotional-distress tort must exempt speech on matters of public concern, even when the speech is seen as “outrageous” and intended to seriously distress. In Snyder v. Phelps, 562 U.S. 443 (2011), the U.S. Supreme Court held that members of the Westboro Baptist Church protesting the Westminster funeral of a fallen soldier could not be liable for intentional infliction of emotional distress under Maryland law because their signs — some of which read “Thank God for IEDs,” “Fag Troops,” “God Hates Fags,” and “Thank God for Dead Soldiers” — addressed matters of public concern. Id. at 458. The First Amendment protection offered to such speech “cannot be overcome by a jury finding that the picketing was outrageous.” Id. at 458. To be constitutional, the intentional infliction of emotional distress tort thus must exempt speech on matters of public concern. Id. at 458-59.

Yet § 3-805(b)(2) expressly rejects any exception for speech on matters of public concern (as opposed to §§ 3-805(b)(1) and 3-805(d), which provide such an exception for distressing speech about adults). Because the statute criminalizes a substantial amount of protected speech, it is overbroad, and thus unconstitutional.

Conclusion

Maryland Criminal Law § 3-805(b)(2) is a content-based restriction on speech that punishes or deters a wide range of fully protected speech. Nor can § 3-805(b)(2) be justified by an analogy to the emotional-distress tort. Section 3-805(b)(2) is thus overbroad and violates the First Amendment.