ABSTRACT-Until recently, criminal "harassment" usually referred to telephone harassment-unwanted communications to a particular person. Likewise, stalking laws were originally created to deal with people who were physically following a person or trying to talk to that person. The same has historically been true with regard to restraining orders.
But in recent years, these laws have been increasingly reworded or interpreted in ways that also cover speech about a person, even when that speech is communicated to potentially willing listeners. The law is in effect returning to an era when criminal libel laws could impose liability not just for falsehoods, but also for true statements or opinions that were supposedly not said with "good motives."
This Article will argue that this approach is unconstitutional when applied to speech said about the target rather than just to the target, at least when the speech is outside the traditional First Amendment exceptions (chiefly threats and "fighting words," plus perhaps libel). Courts should therefore reject the application of these laws to such one-to-many speech, and legislatures should resist the broadening of such laws.
Let me begin with four stories, as it happens all from Summer 2011.
1. Philip Speulda was a primary candidate for the Hawthorne, New Jersey city council. One of Speulda's campaign flyers, pictured below in Figure 1, included a picture of his opponent, Robert Van Deusen, in a hot tub with two other men. (Van Deusen apparently had the picture taken as a joke and had posted it online himself.) Speulda used the photo to suggest that Van Deusen shouldn't be elected because he was gay, or at least because he had acted inappropriately by posting the photo.1
It was a silly flyer from someone who wasn't a serious candidate, and it likely didn't impress the voters. But it did impress the police, who in June 2011 issued Speulda a criminal summons for "harassment." Under New Jersey law, it is a crime to, "with purpose to harass another . . . [m]ake . . . a communication . . . anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm."2 The police theory was apparently that the flyer was made with the "purpose to harass" Van Deusen and was "likely to cause annoyance or alarm" to Van Deusen. Some months later, the charges were dismissed, though with no precedent being set foreclosing similar future uses of the statute.3
2. A couple of weeks later, an anonymous cartoonist who went by MrFuddlesticks created a set of Internet video cartoons parodying the Renton, Washington police department. Some of the videos seemed to relate to real incidents, including incidents with a sexual component, and some of the police officers who were involved in those incidents could be identified by those in the know.4
The city prosecutor concluded that the videos might constitute "cyberstalking," which is defined under Washington law as "mak[ing] an electronic communication to [another] person or a third party" "with intent to harass, intimidate, torment, or embarrass [that] other person" "[u]sing any lewd, lascivious, indecent, or obscene words, images, or language."5 The theory was that some of the sexual references used "lewd" or "indecent" words, and that the video was created "with intent to harass, intimidate, torment, or embarrass" its subjects.6 The prosecutor got a search warrant aimed at figuring out MrFuddlesticks' identity, though after a public outcry the warrant was stayed and later withdrawn, and the city decided not to press charges.7
3. Around the same time, Johanna Hamrick-who runs the Berea Post blog and had been candidate for mayor and city council president of Berea, Ohio-posted various items critical of Norma Kleem. Kleem was a member of the Berea Commission on Aging, the organizer of the Berea July Fourth parade, and the sister of Berea mayor Cyril Kleem. …