Prosecution for posting a story on the Web

[Michael Curtis]

I see that Eugene suggests the student could be expelled under Tinker.
Is this a substantial extension of Tinker--ie out of class and out of
school speech being treated as disruptive.  Have editors and writers in
"underground" newspapers distributed off school grounds been disciplined
in this way before?

Michael Curtis

"Volokh, Eugene" wrote:

>
>
>         Folks:  Any thoughts on this story?  According to The Times
> Union (Albany),
> http://www.timesunion.com/AspStories/story.asp?storyKey=84284&category=C
>
>      A Shenendehowa senior faces up to a year in jail for allegedly
>      depicting fellow students and at least one teacher engaged in
>      sexual activities in a pornographic story posted on an Internet
>      site, investigators and prosecutors said Wednesday.
>
>      Vincent Fuschino . . . was charged last month with second-degree
>      aggravated harassment, a misdemeanor, after an underage female at
>      Shenendehowa High School filed a complaint with the State Police.
>      She allegedly identified herself as a character in the 40-page
>      story.
>
>      "It was a story written on the Internet. It was explicit with
>      sexual innuendo," Senior Investigator Curt Lohrey the State
>      Police at Clifton Park said. "There was sufficient evidence for
>      us to identify a complainant and to charge aggravated
>      harassment." . . .
>
>      Lohrey said that Fuschino was charged because the characters in
>      the story could easily be identified as specific students based
>      on physical descriptions, their enrollment in certain classes or
>      participation in school activities.
>
>      "There was enough information in it. That's why charges are
>      involved," Lohrey said.
>
>      If the characters weren't so recognizable, Lohrey said, "we
>      wouldn't have much of a case."
>
>      District Attorney James A. Murphy III said that a Court of
>      Appeals case backs the decision to prosecute the Fuschino case
>      due to the public descriptions violating the privacy rights of
>      the complainant.
>
>      "It's fairly heavy and explicit in certain descriptions," Murphy
>      said regarding the story.
>
>      The Web site on which the story was posted has disclaimers about
>      the sexual nature of the material found there. Many stories deal
>      with mind control in which characters are forced to perform
>      sexual acts. The stories sometimes give graphic detail. . . .
>
>         This guy is a first-class jerk, and I think the school should
> probably be able to suspend or expel him under Tinker.
>
>         But can this speech really be criminalized? There's no
> evidence that the item fell within any exception to First Amendment
> exception, such as the ones for libel, threats, or obscenity. Or is
> this the start of some new "aggravated harassment" exception to the
> First Amendment?  That would be pretty bad, since it would even go
> beyond the "hostile environment harassment" theory that I've long
> criticized on First Amendment grounds
> (http://www.law.ucla.edu/faculty/volokh/harass). According to New York
> law, Penal Code sec. 240.30, "Aggravated harassment in the second
> degree" is defined (in relevant part) as:
>
>      A person is guilty of aggravated harassment in the second degree
>      when, with intent to harass, annoy, threaten or alarm another
>      person, he or she:
>
>      1. Either
>
>      (a) communicates with a person, anonymously or otherwise, by
>      telephone, or by telegraph, mail or any other form of written
>      communication, in a manner likely to cause annoyance or alarm; or
>
>      (b) causes a communication to be initiated by mechanical or
>      electronic means or otherwise with a person, anonymously or
>      otherwise, by telephone, or by telegraph, mail or any other form
>      of written communication, in a manner likely to cause annoyance
>      or alarm . . . .
>
>         The theory, I suppose, is that posting this material on a Web
> site "causes a communication to be initiated" with annoyed or alarmed
> people (remember, this was a Web site posting, not a direct one-to-one
> e-mail), simply because the subjects of the message are likely to
> eventually see the material on that site -- and therefore whenever we
> post on the Web something that a jury will find was "intended to
> harass, annoy, . . . or alarm" someone, and was likely to do so, we
> could be prosecuted for it. Just think of how much speech can be
> criminalized under such a broad rubric!
>
>         My "Freedom of Speech in Cyberspace from the Listener's
> Perspective" (http://www.law.ucla.edu/faculty/volokh/listener.htm),
> 1996 University of Chicago Legal Forum 377, part II.C, actually
> predicts that this sort of "harassment" law might have this effect --
> though I surely am not happy to have been proven right!  Note also
> that the imprisonment of Paul Trummel (see
> http://www.freepaultrummel.com) for putting up a Web site containing
> criticism of retirement home administrators and staffers with whom
> he'd been feuding, together with their addresses, phone numbers, and
> one photograph, is also being justified on "harassment" grounds.
>
>         Can all this possibly be constitutional?
>         Eugene
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