I am pleased to have been asked to testify on H.R. 1966 (the"Megan Meier Cyberbullying Prevention Act") on behalf of the CatoInstitute, where I serve as an Adjunct Scholar.
I approach the problem presented by this legislation not fromthe vantage point of a legal scholar, however. The Subcommittee,I'm certain, has ample access to members of the professoriate aswell as to scholars at the various think tanks with which theNation in general and Washington in particular are blessed. Indeed,I appear today on behalf of the libertarian Cato Institute, whichover the years has presented cogent scholarly studies of manypieces of legislation that have posed threats to American liberty.But I believe that Cato has asked me to appear, and theSubcommittee has invited my testimony, because I have considerablereal-world experience as a criminal defense and civil libertiestrial lawyer and author who - having never served in governmentoffice - has a particular view of the role that certain types offederal legislation play in the day-to-day life of the Republic andin the lives of its citizens.
I have seen, in particular, the ways in which unwise legislation- legislation often born of good intentions - has adverselyaffected individuals investigated for or accused of federal crimes.Many of these individuals, including (but hardly limited to)clients of mine, have wondered how they could have beeninvestigated, prosecuted, convicted and even sentenced to prisonfor engaging in conduct that a reasonable person would not havebelieved to lie within the ambit of the criminal law. Sometimessuch a person's actions are within the range of entirely civil andproper, while at other times they approach the edges of thesocially acceptable. But unless one's conduct is clearly over thelegal line, shock is a perfectly understandable reaction to acriminal charge.
This Subcommittee, as well as other subcommittees and committeesof the Congress, has heard much testimony in recent years objectingto proposed legislation on grounds of federalism - the notion thatthe federal government has been unduly encroaching on areas of lifeand commerce that in theory were supposed to have been regulated bythe states. One could pose a cogent critique of the proposed"Cyberbullying" legislation on such grounds, in my view, but thisis not my purpose today. One could also point out, as otherscholars and organizations have, that criminal legislation has beenimposed on areas of American life that should not be subject tocriminal law and criminal sanctions - a phenomenon known as"overcriminalization" - and that this law would represent onefurther step in that dangerous direction. But arguingovercriminalization is not my purpose today.
Rather, I wish to focus on another, often overlooked aspect ofthe proposed "Cyberbullying" legislation, growing out of itsvagueness.
My assessment and criticism of the bill lie primarily in thearea of due process of law enshrined in the Fifth Amendment, withconsequent repercussions for First Amendment free speech rights. Ibelieve that this law would not be comprehensible to the averagecitizen - and, indeed, to the average lawyer or judge for thatmatter. It does not help understanding, of course, when vague termssuch as "intimidate, harass, or cause substantial emotionaldistress" are used in a criminal statute to defineverbal conduct that can land one in federal prison. Atypical citizen cannot be expected to understand how and where todraw a line, not only because of the inherent vagueness of theterms, but also because in this instance the prohibited conductinvolves solely speech - and speech, citizens are taught to believefrom kindergarten on, is (or at least is supposed to be) free inAmerica.
Hence, it is the combination of Fifth Amendment due processnotions and First Amendment free speech doctrine that makes thisproposed legislation particularly lethal to liberty interests. Thispresents us all - legislators and citizens, laymen and lawyers,political activists, scholars, and everyone who speaks his or hermind virtually every day in this often fractious (but thankfullyfree) nation of ours - with a profound challenge: How can weprotect legitimate societal interests without posing traps for theunwary innocent?
My perspective on this, as I've said, is a product of fourdecades of experience as a criminal defense and civil libertiestrial lawyer, as well as a civil liberties activist and a frequentwriter on these phenomena. In these capacities, I have dealtdirectly with the socially unhealthy curtailments of free speechand of due process by the uses - and misuses - of various kinds ofregulations aimed at curtailing "harassment," "hostile behavior,"and other such vague terms around which this legislation is built.(In the context of this legislation, it is likely that the term"behavior" is referring primarily, if not exclusively, to speech.)Often born of good intentions, these legislative efforts have,almost without fail, produced unintended consequences, includingexcessive and unfair prosecutions as well as the inhibition of thesometimes unruly verbal interactions that are, and should be, theproduct of a free society.
As one can see from my curriculum vitae that I amsubmitting separately to the Subcommittee, a significant portion ofmy legal career has been devoted to defending academic freedom onAmerican college and university campuses. I have litigated andadvocated extensively on behalf of college and university studentsand faculty members in campus administrative tribunals - people whohave been charged with and often disciplined for violations ofcampus "harassment" codes. In many of those cases, the "harassment"has been nothing more than expression of speech clearly, or atleast arguably, protected by free speech and academic freedomstandards. (In public universities, of course, First Amendmentprotections directly apply, while students and teachers at privateinstitutions must rely on those institutions' voluntary adherenceto traditional principles and protections of academic freedom.) Iwrote about this problem - the serious threat to academic freedomas well as to the well-being of students who are trying to getthrough college without unfair blemish to their records andreputations - in my co-authored 1998 book, The ShadowUniversity: The Betrayal of Liberty on America's Campuses(Free Press, 1998; paperback currently in print fromHarperPerennial), a copy of which I am providing to theSubcommittee. (An appended excerpt demonstrates the intractableproblems encountered in trying to enforce, in the context of thecampus equivalent of a criminal proceeding, a code that employssuch terms as "harassment" in order to penalizespeech.)1
Indeed, a 1992 incident at my alma mater, the HarvardLaw School, demonstrates in very stark terms the problematicresults of punishing, or even merely threatening to punish, harshbut constitutionally-protected expression. After the tragic murderof Professor Mary Joe Frug, a feminist legal scholar at the NewEngland School of Law, the Harvard Law Review publishedone of her unfinished articles, a spirited and sometimes offensivecritique of law and mores from a radical feminist perspective. Inresponse, a group of students on the Law Review staff wrote abiting parody of the article - a critique not only of the ideaspresented in the piece, but also of the decision by the augustHarvard Law Review to run a piece of unfinishedscholarship for what some deemed unacceptably politically correctreasons. An outcry against the student parodists ensued. A group ofHarvard Law School professors belonging to the school'sdisciplinary committee - known as the Administrative Board -concluded that such "verbal harassment" could be penalized only ifthere were a regulation or code prohibiting such speech.
The Harvard Law faculty, in a moment when emotion clearlyovercame loyalty to academic freedom and free speech principles,promptly adopted such a speech code, dubbed a "sexual harassment"code. Harvard Law School now has the equivalent of its own"bullying" statute, and the state of parody and discourse at theschool is much the poorer. Indeed, the annual April Fools' Daypublication of the satiric Harvard Law Revue, whichcontained the aforesaid parody of the feminist legal scholar'sarticle, ceased publication shortly thereafter.2 Parody and satire are, of course, veryimportant tools of critical thought and political and socialexpression in our society generally, and in academia in particular.Aside from the untoward social, political and intellectualconsequences of discouraging the free exchange of ideas by means ofa code so vague that students speak out on "hot button" topics attheir own considerable risk, one needs to consider the unfairnessof threatening to ruin a student's educational record because he orshe operated on the misunderstanding that America is a free countryand that campuses, in particular, value uninhibited and robustspeech.
Such is the free speech mischief encountered by an academicinstitution's attempt to outlaw, under the rubric of "harassment,"all manner and kind of unpleasant, acerbic, unsettling speech. Theproblem has arisen at many other campuses, and the judicialresponse, when litigation has been initiated by students, has beenunambiguous: several federal district courts and courts of appealshave rejected the use of such vague terms as "harassment" in thecontext of restrictions on unpleasant campus speech.3
Consider, for example, an incident in 2008 at Indiana University- Purdue University Indianapolis (IUPUI). A universityemployee/student was found guilty of racial harassment for readinga book titled Notre Dame vs. the Klan: How the Fighting IrishDefeated the Ku Klux Klan. In a letter announcing andjustifying the charges, the IUPUI administration explained that thestudent "used extremely poor judgment by insisting on openlyreading the book related to a historically and racially abhorrentsubject in the presence of your Black coworkers."4 Facing public pressure, and recognizing thequestionable legal grounds on which the decision stood, IUPUIdropped the harassment charges in May 2008. This episodeexemplified how a campus "harassment" code can be stretched tocover activity as innocuous as reading literature on acontroversial subject.
To be sure, there are differences between a university setting(where freedom of inquiry and of expression are of the utmostimportance) on the one hand, and that of society at large (wherereasonable restrictions are more tolerable). Nonetheless,my experience with suppression of speech on campuses, and the caselaw striking down these harassment codes, are pertinent to thisbill. Whether on a campus quad or in a public park, the same lineof reasoning applies: In a free society, people will be offended,feelings will be hurt. Yet separating unsavory speech - even quiteclearly disagreeable and offensive speech - from criminalconduct is absolutely imperative in a democratic system thatcelebrates freedom of expression.
The Supreme Court of the United States, in a unanimous decisionin the 1988 case of Hustler Magazine, Inc. vs. Falwell,485 U.S. 46, reaffirmed that even painful parody isconstitutionally protected by the First Amendment. In that landmarkcase, Hustler publisher Larry Flynt used a fake Compariliquor ad to suggest that his ideological adversary, Reverend JerryFalwell, had lost his virginity in a drunken encounter with his ownmother in an outhouse. The point made by the justices was, andremains, that the First Amendment must protect even very offensiveand unsettling speech. "From the viewpoint of history it is clearthat our political discourse would have been considerably poorerwithout" such depictions, concluded Chief Justice WilliamRehnquist. This was in a civil litigation context where adefamation plaintiff was claiming that he was the victim of Flynt'smagazine article that constituted "the intentional infliction ofemotional distress." A unanimous Supreme Court, recognizing thatindeed painful distress was inflicted, nevertheless reversed acivil money judgment against the publisher. It isperfectly obvious that a criminal charge would have faredeven more poorly under constitutional scrutiny.
The Subcommittee is now considering a bill that wouldcriminally penalize painful language that seeks to inflictdistress. The bill would apply only to speech, rather than to themyriad physical actions that typically accompany a harassment claimin, for example, the workplace. Hence, not only would enactment ofthis statute provoke a veritable storm of constitutionallitigation, but it would, even in the absence of litigation, createa chill over a vast expanse of unpleasant but protected speech.And, it bears repeating, the definitions used are exceedinglyvague.
Current law, both state and federal, bans a considerable arrayof speech that society, state and federal legislatures, and thecourts agree constitutes either a criminal threat (e.g.,extortion) or a genuine tort. Furthermore, the law governing freespeech has for a very long time outlawed, in either a criminal orcivil arena, speech that might otherwise be protected but thattransgresses acceptable time, place andmanner requirements. For example, it would beconstitutionally protected to drive up and down a street at 3o'clock in the afternoon (appropriate time), with aloudspeaker (effective manner, given the need to haveone's political message heard), in the Downtown part of a city(appropriate place for public campaigning) touting one'spreferred candidate for political office. The same message would beconsidered a tort or even (in an extreme case) a crime (such as"disturbing the peace") if one were to deliver it via loudspeakerin a residential neighborhood at 3 o'clock in themorning.
Those prepared to enact this bill must ask themselves whetherthe protection of speech (in particular) from undue curtailment issomehow invalidated simply because the means employed totransmit unwelcome messages happen to be electronic. In otherwords, if this bill were drafted with identical language, but"electronic means" were replaced by "printed means," would theconstitutional conflicts be any more, or less, apparent? Such abill would expose the ranks of newspaper reporters, for example, tocriminal prosecution for causing "substantial emotional distress"in fulfilling their democratic watchdog responsibilities. Anexposé of corrupt (or even some ordinary) political activitysurely causes "emotional distress" to its subject. Should thesesame words, when transmitted via electronic means, cause theirauthor to fear the wrath of federal criminal law? It is vastlyimportant, as our society becomes increasingly technologicallyoriented, that protections of our fundamental freedoms be appliedto new modes of communication as well as to the traditionalmodalities.
One may claim that curtailing political expression is not theintent of this legislation; instead, it is meant to stop "cyberbullies" from causing distress to minors. Nowhere in the languageof this proposed legislation, however, can any such assurance befound. To have Congress jump into the fray surrounding the controlof offensive messages sent over electronic media - especially bymeans of a legislative vehicle which uses a vague concept like"hostile behavior" and "harassment" that causes "substantialemotional distress" - would be more of a trap for the unwary than auseful social tool. Not only is the proposed "Cyberbullying"statute vague by its own terms, but the array of speech that itwould discourage surely is vast, since people tend to severelylimit their speech when they even think that they mightotherwise roam into prohibited territory. Thus, vaguestatutes also function, invariably, as overbroadprohibitions in that in practice they prevent an array of speechfar broader than the presumed statutory target.
My current book, Three Felonies a Day: How the Feds Targetthe Innocent (Encounter Books, September 2009), deals with awide variety of injustices caused by unacceptably vague federalcriminal statutes. (I am submitting a copy of the book along withthis presentation and my testimony.) This book is written from theperspective of a trial lawyer who has seen these statutes wreakhavoc with the law and with people's lives, and threaten thebalance between governmental authority and civil society. The bookcontains some legal analysis, but primarily it is meant as adescription of how vague statutes function, in practice, as a toolof terror and true prosecutorial harassment in the lives ofordinary as well as extraordinary people.
In my book, there are many examples of the mischief caused byvague criminal statutes in all areas of civil society. One chapterexamines how the federal anticorruption laws, on account ofvagueness, are used to unfairly harass and prosecute governmentalofficials, state as well as federal. I have appended to thiswritten submission an excerpt from the text that seeks to explainthe nature and scope of the problem posed by vague criminalstatutes.5
There is, in my view, currently a veritable epidemic caused bythe proliferation of prosecutions based upon vague federalstatutes. I was readily able, from my own litigation experience aswell as from research done on other cases, to pinpoint myriadinappropriate prosecutions of many an unwary innocent citizen inthe medical community, the medical device and pharmaceuticalmanufacturing industry, investment houses, bankers, lawyers,accountants and auditors, academics, artists, newspaper reporters,merchants, as well as public officials. The time has come, it seemsto me, to reduce or eliminate - rather than toenlarge - the number of these affronts to liberty and fairtreatment of our citizens. It is difficult enough for a law-abidingcitizen to keep track of all of his or her clear legalobligations. We citizens should not be faced with an ever-growingnumber of vague statutes that threaten liberty by failing to defineprecisely what conduct might constitute yet another new felony.
I selected the title of my book - Three Felonies a Day- from a notion that occurred to me when I was defending one afteranother client whose conduct was, in my view, particularlyinnocuous, and who faced serious felony charges nonetheless. Mythought was that a typical professional gets up in the morning, hasbreakfast, sends the children off to school, goes to work, spendsthe day dealing with matters that entail the use of the mails orother facilities of interstate communication or commerce, comeshome, has dinner, puts the kids to sleep, finishes the day'snewspapers, and goes to sleep. Little does such a citizen know thathe or she has likely committed three arguable federal felonies thatday - a problem that would ripen into a life-unsettling event onlyif somehow he or she were to come within the sights of a federalprosecutor. Congress should be seeking to lessen this problem, notadd to it. In my view, the "Cyberbullying" bill creates moreproblems than it could possibly solve, especially in view of thefact that existing law is already more than adequate to deal withtruly outrageous or dangerous harassment.
1 Appendix 1.
2 I have written aboutthis controversy, available at http://thephoenix.com/Boston/News/65590-Parodyflunks-out/, and have appended to this submission a copy of myarticle. (Appendix 2.)
3 In April 2009, theHarvard Law Review criticized a decision from the U.S.Court of Appeals for the Third Circuit in which the court struckdown a harassment code at Temple University (DeJohn v. TempleUniversity, 537 F.3d 301 (3d Cir. 2008)). Kelly Sarabyn,former Jackson fellow at FIRE, wrote on the Torch (FIRE's blog:http://www.thefire.org/torch/) that this HLR comment disregarded astring of federal court decisions that struck down campusharassment codes. Sarabyn listed the cases and citations:
Dambrot v. Central Michigan University, 55F.3d 1177 (6th Cir. 1995) (declaring university discriminatoryharassment policy facially unconstitutional); CollegeRepublicans at San Francisco State University v. Reed, 523 F.Supp. 2d 1005 (N.D. Cal. 2007) (enjoining enforcement of universitycivility policy); Roberts v. Haragan, 346 F. Supp. 2d 853(N.D. Tex. 2004) (finding university sexual harassment policyunconstitutionally overbroad); Bair v. ShippensburgUniversity, 280 F. Supp. 2d 357 (M.D. Pa. 2003) (enjoiningenforcement of university harassment policy due to overbreadth);Booher v. Board of Regents, 1998 U.S. Dist. LEXIS 11404(E.D. Ky. Jul. 21, 1998) (finding university sexual harassmentpolicy void for vagueness and overbreadth); The UWM Post, Inc.v. Board of Regents of the University of Wisconsin System, 774F. Supp. 1163 (E.D. Wis. 1991) (declaring university racial anddiscriminatory harassment policy facially unconstitutional);Doe v. University of Michigan, 721 F. Supp. 852 (E.D.Mich. 1989) (enjoining enforcement of university discriminatoryharassment policy due to unconstitutionality).