R.I. legislators target cyberstalking

Friday, February 18, 2000

A measure in the Rhode Island House of Representatives that would prohibit using the Internet to harass or “seriously alarm” another person troubles some free-speech experts.

House Bill 7680, introduced this month, would make it unlawful to use “electronic communications” to engage in conduct that “seriously alarms or annoys” and that “would cause a reasonable person to suffer substantial emotional distress.”

Another part of the bill would prohibit use of an electronic device to harass a person “with the intent to place that person in reasonable fear of bodily injury.”

Violators of the measure would face up to one year in prison for the first offense and a five-year sentence for subsequent convictions.

State Rep. Peter Lewiss, one of the bill’s co-sponsors, says the bill is designed to protect citizens from harassment. “Unfortunately, it (harassment) appears to be a universal experience with this modern technology. It doesn’t matter where you are, you run the risk of being stalked by someone on the Internet. Just as technology has advanced, we need to protect citizens from potential hazards on the Internet.”

But free-speech expert Eugene Volokh, a UCLA law professor, says some of the language of the bill is problematical.

Volokh sees no problem with the provision of the law prohibiting use of electronic devices to harass someone “with the intent to place that person in reasonable fear of bodily injury.”

“That phrase would probably be considered constitutional because there is a true-threat exception in First Amendment law,” Volokh said.

However, Volokh questioned whether the standard “seriously alarms or annoy” could be used to punish individuals for offensive speech that nevertheless should be protected by the First Amendment. “Under the bill’s language, offensive political speech might qualify as a form of cyberstalking,” he said.

Steven Brown, executive director of the American Civil Liberties Union of Rhode Island agreed that the “seriously alarms or annoys” language raises constitutional concerns and said that his group would oppose the measure.

“This would authorize the punishment of an individuals who are putting up material on the Internet that is clearly constitutionally protected even though people may be greatly offended by the material,” Brown said.

Volokh cited the example of a white supremacist posting a message promoting Nazism to a discussion list. “That could be speech that is prohibited under the language of the bill.”

Volokh also noted that if the cartoon at issue in the famous Jerry Falwell-Larry Flynt case were posted on the Internet, it might be considered a violation of the bill. “The ad at issue in Hustler v. Falwell caused Falwell substantial distress, so it might be the ‘substantial emotional distress standard’ of the Rhode Island bill.”

When asked about the “seriously alarms or annoys” language of the bill, Lewiss responded that “hostile speech is afforded some but not total First Amendment protection.”

“This is something that may very well have to be determined on a case-by-case basis,” Lewiss said.

The bill has been referred to the Judiciary Committee, which has not set a hearing date.