It depends. I hate to say it, but it really does. Is it a “true threat” or simply annoying? A general threat or specific one? I’m going to turn to the First Amendment Center for this one.
First, here’s speech not protected by the First Amendment:
- Fighting words
- Defamation (includes libel, slander)
- Child pornography
- Incitement to imminent lawless action
- True threats
- Solicitations to commit crimes
What’s the First Amendment issue with legislation against cyberstalking?
It has to do with distinguishing between protected freedom of speech and speech that is not protected. Most of the new laws passed by states require that, for online communications to be considered “stalking,” they must constitute harassment of a person that places the person in reasonable fear for his or her safety. Courts have upheld stalking legislation that deals with threats because the First Amendment does not protect true threats. But some of the measures go beyond punishing true threats and proscribe “annoying” speech.
Here’s a few scenarios I have dealt with as a radio DJ and an activist.
First, here’s a threat. Working as a DJ in Northern Wyoming, I had a man email me very specific threats about what he wanted to do to me and he included my license plate number and my home address. He claimed he’d fallen in love with my voice, and if I didn’t love him back, all these things would happen. He was arrested and jailed. Why? Because he made specific threats and indicated he could, and would, carry them out.
Now as an activist: I had a conservative dude email me and tell me he hoped I got punched in my mouth for being a fucking liberal cunt, among other general insults/threats. Because they were general and vague, there was nothing that the police could do, even though the guy lived in Laramie. This happens often — the general insults/threats. I just quit giving a fuck. Truly.
Now, a grey area: Broadcasting one night in Laramie, a guy called in drunk and said he was sick of my politics, I should play music, or I was going to get my ass beat. I asked, “By you?” and he slurred, “Yeah.” His number was on the Caller ID and I called the police. I gave them his name and number, and they went and talked to him. Evidently, he was in his sixties, and so drunk that he could barely stand — much less leave his house — and was pretty apologetic once the cops showed up. They chose not to charge him, and I declined to press charges when asked. He really wasn’t a threat and he’s never called back.
The First Amendment has nothing to do with truth. It’s noble, but not that noble. If “expression of truth” were the case, the Westboro Baptist cultists would not have won their case before the U.S. Supreme Court and every pundit that spewed bullshit could be charged with a crime. Here’s a great summary of why the First Amendment exists.
So yes, is it pretty damn murky.