Democratic Efforts to Criminalize Blogs — Why Does Republican Mark Kirk Approve?


By: Warner Todd Huston

I hope I have this story all wrong, I really do. But it seems that Representative Mark Kirk has signed onto an effort that could criminalize the free political speech of bloggers or anyone else that uses the Internet to communicate. Kirk, a Republican who has been making noises about running for governor of Illinois, has his name attached as a sponsor to the Megan Meier Cyberbullying Prevention Act (HR 1966 IH), a bill in the House proposed by Rep. Linda T. Sanchez (D, CA), that would make it a federal felony to use the Internet to cause “emotional distress” through “severe, repeated, and hostile” speech.

Why is Representative Kirk signing onto a bill constructed with such overbroad language that it could criminalize bloggers?

Perhaps he doesn’t realize he’s doing so? The bill is supposed to stop “cyberbullying” and does not seem to be intentionally aimed at political blogs. The title refers to Megan Meier, the 13-year-old Missouri girl that committed suicide in 2006 over scurrilous messages that she found about herself posted on the Internet by Lori Drew, the mother of one of her classmates.

However, the language is overbroad and unclear. Because of the unclear language in the bill, this thing could easily be applied in all sorts of areas for which it is not intended, as lawyers and activists judges are prone to do.

The bill describes electronic communication as:

(1) the term `communication’ means the electronic transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received; and

(2) the term `electronic means’ means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.’.

This describes everything that we use to communicate from phones to the Internet. Everything.

Then we get to the behavior that is supposedly covered by the bill:

(a) Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.

I want to key in on these words from the above language: “with the intent to coerce, intimidate.”

Wouldn’t this cover just about ANY kind of political activism on the Internet, including blogs? Isn’t this phrase a bit overbroad? After all, if I were to write repeated editorials about any particular politician (as I have done in the past) couldn’t that politician charge me in violation of the Megan Meier Cyberbullying Prevention Act? Could I be assumed to be engaging in “cyberbullying” by attacking the record of a local judge or school board member if I blog about them in an unflattering manner?

And what about complaining about customer service or product safety? Should consumer safety maven Ralph Nadeer have made his splash on the Internet instead of TV, newspapers and books, could his efforts to highlight the abuse of the public’s trust by various corporations be deemed “cyberbullying”?

What about unions? They use the Internet to organize their forces for boycotts, walk-outs and issues, too. Are they engaging in “cyberbullying”?

Well, the examples that could easily be shoehorned into this act could go on forever. And what of the First Amendment? How far does this act go to stop speech? How far can it go? One blogger, Eugene Volokh of The Volokh Conspiracy, feels that this bill cannot possibly survive a Supreme Court challenge because it is “facially overbroad and probably unconstitutionally vague.”

Volokh expressed shock that Rep. Sanchez even attempted this absurd bill.

What are Rep. Linda Sanchez and the others thinking here? Are they just taking the view that “criminalize it all, let the prosecutors sort it out”? Even if that’s so, won’t their work amount to nothing, if the law is struck down [by the Supreme Court] as facially overbroad — as I’m pretty certain it would be? Or are they just trying to score political points here with their constituents, with little regard to whether the law will actually do any good?

As for me, I am not surprised. It has been a long time since any congressman has worried over much whether a proposed bill is Constitutionally justified or not. Few in Washington (including most judges) care much about what the Constitution says on any given subject. They want feels-goodism, not legitimate law.

Increasingly, we cannot count on the courts to see the error of the legislature’s ways, either. All too often judges are ruling on their personal feelings rather than case law and/or the Constitution. Unconstitutional laws like this are being churned out every day all across the land and going unexamined as well as unchallenged. Unfortunately President Obama is not looking to reverse this downward trend as he has announced that he wants his Supreme Court candidate to have “empathy” for people and not to focus on the letter of the law. This would tend to further destroy the Constitution bit by emotionally driven bit.

Look, no one wants to excuse the mean-spirited actions that might cause 13-year-old girls to commit suicide. But this badly written bill will surely prove to invoke the law of unintended consequences and prove once again that, far from “fixing” things, government makes things worse.

Finally, it is also sad that a man that claims to be a serious student of the Constitution like Mark Kirk would sign on to this garbage legislation. It is telling that Kirk is the only Republican sponsor. It smacks of him positioning himself for a gubernatorial run in Illinois instead of a principled stance against the amorphous realm of “cyberbullying.”

Sponsors of HR 1966 IH:

Rep. Marcy Kaptur (D, OH)   Rep. Linda T. Sanchez (D, CA)   Rep. John Yarmuth (D, KY)   Rep. Lucille Roybal-Allard (D, CA)   Rep. Lois Capps (D, CA)   Rep. Timothy Bishop (D, NY)   Rep. Bruce Braley (D, IA)   Rep. Raul Grijalva (D, AZ)   Rep. Phil Hare (D, IL)   Rep. Brian Higgins (D, NY)   Rep. William Clay (D, MO)   Rep. John Sarbanes (D, MD)   Rep. Joe Courtney (D, CT)   Rep. Mark Kirk (R, IL)

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