Bully Pulpit: Will Arkansas ‘Cyberbullying’ Law Criminalize Free Speech?

City officials in Renton, Wash., are scrambling to identify the creator of a series of web videos exposing corruption and incompetence in the city police department. The videos (simple cartoons created on Xtranormal.com and distributed via YouTube) allege a variety of sex scandals, unearned promotions, drunkenness, abuse and more. Here’s a taste (includes some NSFW language, in case you have an uptight supervisor or co-worker in earshot):

The city prosecutor is seeking to identify the anonymous creator of the videos, alleging that, since the purpose of the videos is “to harass, intimidate, torment or embarrass” members of the department, the creator has violated state cyberstalking laws.

And given that Arkansas passed a similar cyberbullying law in the 2011 legislative session, the implications of the case are worth a closer look.

The Renton case is a textbook example of how anti-stalking and bullying laws can easily morph into assaults on freedom of expression. Explains legal eagle Eugene Volokh:

Under the prosecutor’s view, any statement — including on a blog, in a YouTube video, in a newspaper article, on television, or whatever else — is a crime if it is made “with intent to harass, … torment, or embarrass” the subject of the person “[u]sing any lewd, lascivious, indecent, or obscene words, images, or language.” A comedian’s joke that “lewd[ly]” or “lascivious[ly]” described President Clinton’s behavior with Monica Lewinsky, or for that matter Congressman Weiner’s behavior, would be a crime if it was made “with intent to … embarrass” the President or the Congressman….

Volokh continues:

If the prosecutor is right that the statute should be interpreted this broadly, then it’s clearly unconstitutionally overbroad. Speech to the public doesn’t lose its constitutional protection because it’s intended to torment or embarrass.

Be forewarned: It could happen here, thanks to the aforementioned cyberbullying law passed in the last legislative session. Comparable to the Washington law, it was sponsored by Little Rock Democratic Sen. Linda Chesterfield and passed on a bipartisan vote, with only a few House conservatives opposing.

The Arkansas law includes similarly vague language (link opens as PDF) that could easily be deployed against, say, political bloggers. The law targets anyone who “transmits, sends, or posts a communication by electronic means with the purpose to frighten, coerce, intimidate, threaten, abuse, harass or alarm another person,” which basically describes 90 percent of the communication on Twitter on any given day.

In this paper for the Advance Arkansas Institute (again, opens as PDF), our own Dan Greenberg warned of the overbroad language in Chesterfield’s bill:

…There is a reasonable prospect that courts would find this bill unconstitutionally vague, unconstitutionally overbroad, or unconstitutional because government bodies would have to analyze the content of communications to determine whether they constituted cyberbullying. Furthermore, law enforcement officers, judges, and citizens may have some difficulty figuring out which communications are “in furtherance of severe, repeated, or hostile behavior.”

One might think a law criminalizing speech would be met with something more than a yawn, but the Arkansas law has generated little response from the state’s media. The actions of the city prosecutor in Renton, which strike right at the heart of free speech, illustrate why these things matter.

More on the Renton case from the indispensable Reason.com.

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