Criminal harassment laws, speech, and the "nousefulpurpose"proviso; witch hunts; rationality and criminal law
michael curtis
curtism at bellsouth.net
Wed Aug 8 10:50:43 PDT 2007
I think that this awful, cruel speech is probably constitutionally
protected--as much awful speech is. A major problem is with a legal system
that branded this child as a sex offender for this act. People can then use
this brand to convey an entirely misleading impression of what sort of
person is involved--seemingly a fairly normal kid who made an unfortunate
mistake. (My fact discretion.)
Michael Curtis
----- Original Message -----
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: <CONLAWPROF at lists.ucla.edu>
Sent: Wednesday, August 08, 2007 1:39 PM
Subject: RE: Criminal harassment laws, speech, and the
"nousefulpurpose"proviso; witch hunts; rationality and criminal law
> I'm pretty sure that Dennis et al. no longer reflect current
> First Amendment law. But even setting that aside, can it really be that
> speech is punishable when it's part of a conspiracy to deny someone "the
> right to live in a particular community" by publicizing the person's
> past acts, and leading people to condemn that person? Claiborne made
> clear that people are free to engage in social ostracism as a means of
> pressuring changes in behavior -- even though of course every black
> citizen of the county had a right to shop at a particular store, and
> especially a right to shop at a particular store without regard to his
> race. Likewise, Keefe made clear that people are free to try to
> pressure realtors to change their business practices through public
> condemnation and the implicit threat of ostracism and lost business.
>
> If I think that a sex offender shouldn't live in a particular
> neighborhood, how can the government punish me for conveying the fact
> that he's a sex offender, and implicitly urging people to exercise their
> own right not to socialize with him or do business with him?
>
> Eugene
>
>> -----Original Message-----
>> From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
>> Sent: Wednesday, August 08, 2007 10:26 AM
>> To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
>> Subject: RE: Criminal harassment laws, speech, and the "no
>> usefulpurpose"proviso; witch hunts; rationality and criminal law
>>
>> I see these questions as close. Hustler and and Garrison
>> generally support the view that speech cannot lose protection
>> based on motive; but those cases focus on the need to protect
>> criticism of public officials and public figures,
>> respectively. Moreover, Dennis, Yates, Scales and Noto hold
>> that speech can lose protection when it is part of a course
>> of conduct directed at an unlawful objective. I know that
>> Professor Volokh doubts the integrity of a rule that denies
>> protection to speech when undertaken as part of a course of
>> unlawful conduct, but this concept is pretty firmly rooted in
>> First Amendment law; Dennis, Scales and Noto were cited with
>> approval in Brandenburg, and the view that speech can lose
>> protection based on motive was endorsed in Claiborne
>> Hardware. Indeed, virtually the whole of the law of criminal
>> conspiracy stands for the proposition that speech can lose
>> its protected character based on motive.
>>
>> As for vagueness, I don't think that question can be answered
>> without considering the possibility of a narrowing
>> construction from the Wisconsin Supreme Court. If the
>> statute were construed, for example, as limited to those who
>> publish such information as part of a conspiracy to deprive
>> someone of a legal right (such as the right to live in a
>> particular community), perhaps it would be upheld, much as
>> the Smith Act was upheld. Still, because this statute is so
>> broadly drafted, and has no obvious limiting construction
>> that makes it resemble a conspiracy or civil rights law, I
>> suspect that it would be invalidated.
>>
>> Larry Rosenthal
>> Chapman University School of Law
>>
>>
>> ________________________________
>>
>> From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
>> Sent: Wed 8/8/2007 9:47 AM
>> To: CONLAWPROF at lists.ucla.edu
>> Subject: RE: Criminal harassment laws, speech, and the "no
>> usefulpurpose"proviso; witch hunts; rationality and criminal law
>>
>>
>>
>> (1) One question is whether one can lose protection
>> for speech because of improper motive. Hustler v. Falwell
>> and Garrison v.
>> Louisiana generally suggest the answer is no.
>>
>> (2) Another is whether the Wisconsin statute is
>> content-neutral. It should, in my view, be treated as
>> content-based when applied to speech because of the
>> communicative impact of the speech
>> -- as is the case here. Note that the laws in Hustler,
>> Claiborne, Cohen, and a wide variety of other cases were
>> facially speech-neutral, but were subjected to extremely
>> skeptical First Amendment scrutiny when applied to speech
>> because of its communicative impact, and in my view rightly
>> so. I discuss this in detail in a Cornell piece of mine from
>> 2005, http://www.law.ucla.edu/volokh/conduct.pdf, Part I.
>>
>> (3) But the most serious problem with the law, I
>> think, is its vagueness. It's not that some specific motives
>> are made criminal; it's that speech is criminalized because
>> it has "no legitimate purpose," with no explanation or
>> guidance for judges, jurors, prosecutors, police officers, or
>> speakers about what purposes are legitimate. Can that
>> possibly be constitutional?
>>
>> Eugene
>>
>> > -----Original Message-----
>> > From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
>> > Sent: Tuesday, August 07, 2007 7:22 PM
>> > To: michael curtis; Volokh, Eugene; CONLAWPROF at lists.ucla.edu
>> > Subject: RE: Criminal harassment laws, speech, and the "no useful
>> > purpose"proviso; witch hunts; rationality and criminal law
>> >
>> > I too am not sure of the right answer to the First
>> Amendment question.
>> > What does seems clear to me is that the First Amendment
>> protects the
>> > right to publicize information obtained from public
>> records, in this
>> > case, the sex offender registry. E.g. Cox Broadcasting v. Cohn (a
>> > case involving the press, I know, but the Court keeps
>> telling us that
>> > the press has no greater rights than the public). The
>> question then
>> > becomes whether one can lose First Amendment protection under this
>> > line of cases because of an improper motive for publicizing the
>> > information. We know from Wisconsin v.
>> > Mitchell that motive is not itself protected by the First
>> Amendment,
>> > and that legislative determinations about the need to
>> punish and deter
>> > based on motive are reviewed deferentially. The Wisconsin statute
>> > also seems generally applicable and content and viewpoint
>> neutral to
>> > me because it turns on motive rather than any identifiable
>> content or
>> > viewpoint (Allen could violate the statute as readily as his
>> > neighbors), and Mitchell again treats illicit motive as content and
>> > viewpoint neutral. Still, Mitchell was considering only
>> unprotected
>> > conduct (enhanced punishment for hate crimes), rather than the
>> > question whether otherwise protected speech can lose its protection
>> > based on motive.
>> > Although Hustler v. Falwell is not quite on point because that case
>> > turns in part on the need to protect parody as a form of
>> expression,
>> > my guess is that Hustler would carry the day against the Wisconsin
>> > statute as applied to the distribution of public records
>> such as these
>> > -- when constitutional protection for statements of fact
>> made without
>> > malice in the New York Times v. Sullivan sense is lost
>> solely because
>> > of the defendant's motive, there is an unacceptable
>> chilling effect on
>> > protected speech. Still, I have some trouble reconciling
>> such a broad
>> > reading of Hustler with cases like Dennis, which suggest that an
>> > improper objective (driving Allen out of town?) and
>> speaking a part of
>> > a course of conduct reasonably calculated to achieve that objective
>> > leaves such speech unprotected. As Professor Volokh's own work
>> > demonstrates, this is a difficult area of the law.
>> >
>> > I have less trouble with a Lawrence defense to a charge of
>> statutory
>> > rape. Lawrence involved the rights of consenting adults.
>> Nothing I
>> > can see in Lawrence suggests that the state must presume that a 15
>> > year old girl is capable of giving valid consent to a
>> request (or was
>> > it, at least to 15 year old ears, a demand?) for oral sex.
>> >
>> > Larry Rosenthal
>> > Chapman University School of Law
>> > ------------------------------
>> >
>> > ________________________________
>> >
>> > From: conlawprof-bounces at lists.ucla.edu on behalf of michael curtis
>> > Sent: Tue 8/7/2007 6:05 PM
>> > To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
>> > Subject: Re: Criminal harassment laws, speech, and the "no useful
>> > purpose"proviso; witch hunts; rationality and criminal law
>> >
>> >
>> >
>> > I am not sure of the answer to Eugene's first amendment
>> question. Here
>> > we have a 16 year old boy who agrees to the proposal from a fifteen
>> > year old girl that she perform oral sex on him. Making
>> this boy into
>> > a "sex offender" who must be registered and stigmatized for
>> the rest
>> > of his life is
>> > awful. Without more, there is simply no reason to think
>> > this kid will be
>> > inclined (for the rest of his life) to prey on children. These two
>> > children were within about a year of the same age. To treat this
>> > adolescent event as somehow comparable to an adult who sexually
>> > molests a young child is horrible. And now at age
>> > 25 this young man is hounded and stigmatized by a group of
>> neighbors
>> > although he has fully complied with all the restrictions so cruelly
>> > imposed on him. Of course, the neighbors think they are protecting
>> > children--but, of course, the people who burned witches
>> thought they
>> > were protecting children. This story is revolting. To
>> me--at least
>> > as applied to these facts--the "no legitimate purpose" seems about
>> > right although the test would be vague and overbroad in
>> many cases.
>> > This story is an example of how ill considered over broad
>> pursuit of a
>> > worthy purpose can lead to cruel, extreme, and unfortunate results.
>> >
>> > The following is a comment only on a general proposition,
>> not on how
>> > rationality might be treated by courts in this case if they
>> decided to
>> > use it or whether it should be applied here.
>> > In response to Robert Sheridan's thoughtful post, note that
>> Lawrence
>> > v. Texas did apply a heightened rationality approach to
>> criminal law
>> > and so I guess did Eisenstadt v. Baird.
>> > The Kansas Supreme Court used an equal protection
>> rationality approach
>> > to strike down a harsher punishment for same sex child on
>> child oral
>> > versus much lesser punishment for opposite sex oral sex between
>> > otherwise similarly situated kids. The California Supreme
>> Court held
>> > that imposing life long sex offender registration on a twenty some
>> > year old man who had oral sex with an 18 year old woman
>> (these ages
>> > are from memory) when no registration would be required if they had
>> > had vaginal sex was so irrational as to violated even low level
>> > rational basis. So sometimes courts do use rationality
>> review. And
>> > at other times, as in Michael M., a gender discrimination that the
>> > dissent argued had no significant advantage over a gender
>> neutral law
>> > is upheld.
>> >
>> > Hyper active courts can be a serious problem. So can
>> courts that are
>> > inclined to ignore blatant injustices and invasions of
>> liberty. Cases
>> > like this make me wonder whether a pinch of rationality now
>> and then
>> > might not be a good idea. I am not sure how it would or
>> should work
>> > here.
>> >
>> > Michael Curtis
>> >
>> >
>> >
>> > ----- Original Message -----
>> > From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
>> > To: <CONLAWPROF at lists.ucla.edu>
>> > Sent: Tuesday, August 07, 2007 4:37 PM
>> > Subject: Criminal harassment laws, speech, and the "no
>> useful purpose"
>> > proviso
>> >
>> >
>> > > I was hoping I might have list members' thoughts on this
>> question,
>> > > which I've seen raised in various cases.
>> > >
>> > > Some state laws ban "criminal harassment," including
>> > behavior defined
>> > > more or less as "Engag[ing] in a course of conduct [= a
>> pattern of
>> > > conduct composed of a series of acts over a period of
>> time, however
>> > > short, evidencing a continuity of purpose] or repeatedly
>> > commit[ing]
>> > > acts which harass or intimidate the person and which serve no
>> > > legitimate purpose." The broadest body of caselaw I've
>> > seen on this
>> > > has been in Wisconsin; the statute I just quoted is the
>> > Wisconsin one, Wisc. Stat.
>> > > Ann. 947.013.
>> > >
>> > > Naturally, what constitutes "no legitimate purpose" ends up being
>> > > critical, or else Larry Flynt would be criminally prosecutable in
>> > > Wisconsin for publishing the material in Hustler v. Falwell
>> > (at least
>> > > if he published it at least twice). (Recall that "harass"
>> > here is not
>> > > the same as in hostile environment law; presumably it bears
>> > its normal
>> > > English meaning, which would cover Flynt's intentions.)
>> > The statute
>> > > gives no definitions.
>> > >
>> > > In any case, here's a specific instance that tests this:
>> > > Several Fond du Lac residents live near a convicted sex
>> offender (a
>> > > Michael A. Allen). They printed copies of that offender's
>> > Wisconsin
>> > > Department of Corrections Sexual Offender Registry Registrant
>> > > Information web page, and publicly posted it in various
>> > places -- at a
>> > > gas station, at a YMCA, and several trees and telephone
>> > poles. They
>> > > were then arrested for harassment. The arresting
>> officer's report
>> > > explains that this was "because [their] conduct served no useful
>> > > purpose. Michael Allen is following the rules of the
>> registration
>> > > system and is not breaking any laws. It appears to be the
>> > intent of
>> > > the suspects to force Michael Allen to move from the area."
>> > (I should
>> > > also say that Allen's offense strikes me as very minor as
>> > sex crimes
>> > > go -- "Court records show that Allen was convicted in 1998 of
>> > > second-degree sexual assault of a child for receiving oral
>> > sex from a
>> > > 15-year-old girl. The records show that Allen was 16 years
>> > of age at
>> > > the time of the incident, which occurred in 1997 in Shawano
>> > County. In
>> > > a victim statement included with court documents, the
>> > 15-year-old girl
>> > > said it was her idea to perform the sexual act. She also
>> wrote that
>> > > she didn't think it was Allen's fault or that he should get in
>> > > trouble." Should that matter for constitutional purposes?)
>> > >
>> > > I take it that defendants believe their conduct does serve a
>> > > legitimate and useful purpose -- it may inform their
>> > neighbors about
>> > > the possible danger posed by Allen. Even if they intend to
>> > try to get
>> > > Allen to move, that too may be useful for them and their
>> children,
>> > > though of course it may lead Allen to move to become a
>> > possible threat
>> > > to other children (again, I don't see him as much of a
>> threat, but
>> > > obviously they do, and the law does require registration
>> > for offenders like Allen).
>> > >
>> > > Is the "no legitimate purpose" proviso unconstitutionally vague?
>> > > Is the statute unconstitutionally content-based, when applied to
>> > > speech like this that "harasses" because of its content,
>> > much as the
>> > > emotional distress tort, interference with business
>> > relations tort, or
>> > > disturbing the peace law is unconstitutionally content-based when
>> > > applied to otherwise protected speech because of its
>> > content (see Hustler v.
>> > > Falwell; NAACP v. Claiborne Hardware; Cohen v.
>> California)? If "no
>> > > legitimate purpose" is constitutionally permissible when properly
>> > > interpreted, what is that proper interpretation?
>> > >
>> > > The same defendants were also arrested for getting into a
>> > fight with
>> > > the offender over the offender's coming onto their property
>> > to remove
>> > > a copy of the sheet that they had posted on their own
>> property; but
>> > > that's a separate charge, and I thought we'd set it aside for now.
>> > >
>> > > Thanks in advance for any responses,
>> > >
>> > > Eugene
>> > > _______________________________________________
>> > > To post, send message to Conlawprof at lists.ucla.edu To subscribe,
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>> >
>> > _______________________________________________
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