An Annoying Followup on Anonymous Blogging

computer eyesVolokh Conspiracy, the libertarian annoyance to the blogging legal world (must resist the urge to say… blawg), has given their own thumbs down to the recent statute expansion that makes it illegal to annoy someone online anonymously. Eugene Volokh notes the underlying concern here is that the expansion isn’t limited to just VOIP or one-to-one communication, but is broad enough to, yes, make annoying anonymous blogging potentially illegal:

What does this practically mean?

1. This potentially criminalizes any anonymous speech on a Web site that’s intended to annoy at least some readers, even if it’s also intended to inform other readers. This is true whether the poster is berating a government official, a religious figure, a company that he thinks provides bad service, an academic who he thinks is doing or saying something misguided, a sports figure who he thinks is misbehaving, or what have you; so long as he’s trying to annoy any recipient (whether the target, if the poster thinks the target is reading the blog, or the target’s partisans or fans).

2. How is this different from traditional telephone harassment law? The trouble is that the change extends traditional telephone harassment law from a basically one-to-one medium (phone calls) to include a one-to-many medium (Web sites).

This is a big change. One-to-one speech that’s intended to annoy the one recipient is rarely of very much First Amendment value; people are just rarely persuaded or enlightened by speech that’s intended to annoy them. It has some value (see item 3 below), but to the extent that it’s in some measure deterred, the loss to public debate isn’t that great – speakers are still free to speak to others besides the person they’re trying to annoy.

But one-to-many speech that is intended to annoy one or a few readers, but intended and likely to enlighten or persuade many other readers, is potentially much more valuable. Juan might think that the target of the speech deserves to be berated for his misconduct, and that the target’s supporters deserve to be berated for siding with the target; but Juan might also want the rest of the public to hear about the target’s misbehavior, and to be persuaded to think less of the target, or to act differently themselves.

It seems there is quite a bit of controversy among lawyers over just how or if this law may impact bloggers, with many arguing that it’s unenforceable or unconstitutional.

In which case I posit: has that ever stopped them before?

reader comment: Artus Register points us towards a FAQ by original CNET News author Declan McCullagh. Most astute was a comment there:

If the text of the law does indeed refer to devices that _originate_ communications, then Web sites and blogs are excluded, because servers do not originate communications, they only respond to them. You must visit a Web site or blog in order to see it; it does not magically find its way to your computer and display itself without any action on your part. Therefore it does not _originate_ anything.

posted by vforvandyke