Prosecution for posting a story on the Web

[Volokh, Eugene]

        Hmm -- sounds like a textbook example of why we worry about the
slippery slope.  A few state courts decide that (1) criminal libel can
punish even truthful statements; this is quite likely inconsistent with the
Court's libel caselaw, which rests on the notion that *false* statements
have no constitutional value, see Gertz, but at the very least it seems to
push that exception to the limit.  Now those cases are being used to justify
(2) punishment of speech that isn't even defamatory -- certainly there was
no allegation here that the clearly fictional speech was defamatory, and
defamation is not an element of aggravated harassment.

        If this slippage is allowed, and New York courts set a precedent
that this speech -- even though neither false nor defamatory -- may be
punished, (3) what other speech would end up being restricted by analogy to
this *new* precedent?  From punishment of (0) false defamatory statements to
(1) true defamatory statements to (2) fictional nondefamatory statements to
(3) what else?

        As I've said before, in a legal system like ours, which is built on
precedent and analogy, we really do have to worry not just about the results
in this case, but also about future cases in which this one might be used as
precedent.  If someone could point to an existing First Amendment exception
which cleanly covers this case, that will make me more comfortable; at least
then we'll have some idea of the boundaries of what speech is punishable and
what isn't.  And if someone could suggest a new First Amendment exception,
then we can consider its boundaries and see whether they seem safe or too
dangerous.  But supporting this sort of prosecution using somewhat distant
analogies, it seems to me, should make us wonder what equally distant
analogies to *this* prosecution would produce.

        Eugene

> -----Original Message-----
> From: James Lindgren [SMTP:jlindgren at TELOCITY.COM]
> Sent: Wednesday, June 12, 2002 10:29 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Prosecution for posting a story on the Web
>
> We had a discussion on this topic a year or two ago, in which several of
> us pointed to cases in which the First Amendment did not bar criminal
> prosecutions under state criminal libel statutes of disseminations of even
> true information, such as an IL case in which cert was denied in the
> 1980s.  There a former boyfriend had put posters up revealing intimate
> details of his former girlfriend's sexual activities.  Truth was not a
> defense, and the constitutional issues were very competently raised by the
> defendant's counsel, who was a law professor .
>
> Jim Lindgren
> Northwestern University
>
> At 01:03 PM 6/12/2002 -0400, you wrote:
>
>
>       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
>
>
> James Lindgren
> Northwestern University, Evanston, IL.  USA
> jlindgren at law.northwestern.edu
>
>
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