By Daniel Dew
How many people would be in jail if annoying or offending a person were against the law? The answer: pretty much everyone. If you think that you might be one of these people and you like to send information electronically, there are a few places you should probably avoid.
Vernon County, Wisconsin, is among a growing number of jurisdictions that are implementing so-called cyber-bullying laws. A Vernon County ordinance makes it a crime to “send information to another person by electronic means with the intent to annoy, offend, demean, ridicule, degrade, belittle, disparage, or humiliate any person.” There is an exception if the information serves a “legitimate purpose.”
The statute is a clear violation of the First Amendment. Under the First Amendment, offensive speech is protected as long as it is not incitement to immediate unlawful conduct, obscene, child pornography, a threat, or fighting words. Here, the ordinance goes far beyond those unprotected categories of speech and targets speech that is simply annoying.
Putting First Amendment issues aside, the statute still fails to pass constitutional muster. For a criminal law to be constitutional, it must be written so that the average citizen can know what the law prohibits. If a law is too vague, it is void. This principle is appropriately called the “Void for Vagueness Doctrine.”
Does the Vernon County ordinance clearly state what conduct is prohibited? What does “annoy” mean? What does “offend” mean? What about “humiliate”? These things can mean different things to different people. As one commentator noted, the officials who implemented this law probably find criticism of the law offensive.
What if a person finds religious teachings offensive and an individual is constantly posting religious messages on his Facebook page?
The ordinance uses the phrase “any person.” Does that mean that the information can be annoying to someone other than the recipient of the message? That’s what the text of the ordinance says. If a teenager sends a text message to a friend with the intent to demean some B-List celebrity who is not a recipient of the text message, is that a violation of this law? The way the ordinance is written, our hypothetical teenager is a criminal.
By the way, so is anyone who forwards an email that winds up in the mailbox of someone offended by it. If you’re a Vikings fan, be careful what you say about the Packers—particularly this weekend—lest your email wind up in Vernon County and you wind up in jail.
The statute provides a defense if the information serves a “legitimate purpose.” Who determines what a “legitimate purpose” is? Some would argue that disparaging or humiliating someone can serve a legitimate purpose, when that person deserves to be disparaged or humiliated for something he has said or done that is morally blameworthy.
When the ordinance was being debated, the lawyer in favor of the ordinance said specifically that this would apply to Facebook posts. When siblings or friends post unflattering pictures of each other on their Facebook walls, are they criminals? If it was done, as is often the case, with the intent to annoy or humiliate the other, under this law that person might be heading for the slammer.
Are we shifting from a society where children complain to their parents about siblings or friends to one where children file complaints with the police about the same people?
It used to be, “Mom! She is being mean to me! Make her stop!” Will it soon be, “Officer! She is offending me on Facebook! Put her in jail!”?
This ordinance is incredibly overbroad and puts ordinary citizens in jeopardy of becoming criminals. This is one more example of the increasing overcriminalization problem at every level of government.