Group sending vulgar letters to errant drivers underinvestigatio n

[James Maule]

Wouldn't there need to be some level of repetition before one even reaches the question of whether there would be a cause of action? One insulting letter, devoid of threats or statements putting a reasonable person in fear for life or property, isn't actionable per se. But if there were computer-generated emails, 50 per day, for two weeks, that's on the other side of the spectrum. Does the First Amendment protect the person's"right" to call someone every ten minutes to tell him he's a terrible driver?

In other words, why would the legal analysis differ because the letters are email or generated by a computer rather than telephone calls?



Jim Maule
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
http://vls.law.vill.edu/prof/maule
President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com)
Publisher, JEMBook Publishing Co. (www.jembook.com)
Maule Family Archivist & Genealogist (www.maulefamily.com)




>>> VOLOKH at mail.law.ucla.edu 12/19/00 12:48PM >>>
        I'm not sure there is such a thing as common-law harassment; and
even if it does qualify as "harassment" under some statute (or under some
common-law rule), that just leaves the question whether this statute or
common-law rule is unconstitutional.  Under what 1st Am exception would such
a speech restriction be defensible?

        As to the theory that these letters are inherently "threats," does
the threat exception really reach that far?  The letters quoted are
certainly insulting and annoying, and I certainly agree that there's an air
of faint menace any time someone gets an anonymous and critical letter.  But
surely the threat exception requires something more than that, or else a
wide range of speech would lose 1st Am protection (how about a picket line
calling strikebreakers "scabs," which many a strikebreaker would find at
least vaguely menacing, especially given the history of labor violence?).

        Eugene

> -----Original Message-----
> From: Leslie Goldstein [SMTP:lesl at UDEL.EDU]
> Sent: Tuesday, December 19, 2000 6:42 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Group sending vulgar letters to errant drivers
> underinvestigatio n
>
> don't they qualify as common law harassment , and perhaps in many places
> statutorily defined harassment? Certainly I would feel threatened if I
> received one.
> Leslie Goldstein
>
> Scott Idleman wrote:
>
> > At issue, with respect to at least one of the targeted drivers, are not
> > simply insulting comments in letters, but also assertions on this
> > group's website that the driver abuses animals and engages in other
> > illegal or immoral activity.  Those assertions, if false, are defamatory
> > and civilly actionable as such, although I don't know whether there is a
> > criminal-law counterpart to defamation that may be prosecuted by the
> > government.  As for the letters themselves, unless threatening or unless
> > they rise to the level of intentional infliction of emotional distress,
> > they may be protected speech. Had they been uttered roadside, however,
> > say in a moment of road rage, might they be considered unprotected
> > fighting words?
> >
> > Scott Idleman
> > Marquette Univ. Law School