Summary
Louisiana House Bill 1259 would make it a crime to transmit any electronic communication with the intent to coerce, abuse, intimidate, harass, frighten, embarrass or cause emotional distress to another person.
A violation would be punishable by up to six months in prison, a fine of $500 or both. The law offers no definitions for coerce, abuse, intimidate, harass, frighten, embarrass or cause emotional distress.
The bill was amended to criminalize communication “with the malicious and willful intent to coerce, abuse, torment or intimidate a person under the age of 18.”
Status
The bill was amended to narrow the definition of the crime to “malicious and willful intent to coerce, abuse, torment or intimidate” a minor. Gov. Bobby Jindal signed the amended bill into law. It goes into effect August 15, 2010.
Analysis
The bill is almost certainly unconstitutionally overbroad and vague. Though protecting people from cyberbullying is an admirable goal, such a law cannot ignore First Amendment protection of speech. This bill would create criminal liability for a significant amount of protected speech. Communication that embarrasses or frightens is generally protected by the First Amendment. Stephen King novels and the Halloween movie franchise are intended to frighten their readers and viewers. Political commercials are often intended to coerce the viewer into voting for a particular candidate. Many newspaper editorials, books and documentaries are created specifically to embarrass politicians and the powerful. Even speech intended to inflict emotional distress is protected by the First Amendment.
Louisiana recognizes a tort for intentional infliction of emotional distress, but it is limited to the most egregious speech that meets a three-part test.
The bill is also unconstitutionally vague. In certain narrow, well-defined instances, speech that rises to the level of coercion, abuse, intimidation or harassment can amount to a crime. Typically, statutes that punish such speech include specific criteria that transform the speech from protected communication to a crime. Such criteria makes the distinction between reporters covering a story and harassment, or competitive banter between video game rivals and intimidation or abuse. H.B. 1259 offers no criteria to limit the definition of these terms, either in the bill or by reference, not does it require that the subject of the speech even be aware of it. This vagueness will have a significant chilling effect on protected speech. Speakers have little guidance to determine what speech is protected and what is subject to prosecution and must either risk a criminal prosecution or self-censor their speech.
History
- On April 7, 2010, the bill was introduced [3] and referred to the House Committee on Administration of Criminal Justice.
- Media Coalition sent a letter to Rep. Roy Burrell, the sponsor of the bill [2], on April 19, 2010, explaining the constitutional issues with the bill.
- The committee amended the bill [4] on April 20, 2010 to apply only to communication to a person under the age of 17. The committee recommended the bill be passed as amended.
- Rep. Burrell amended the bill [5] on the House floor on April 28, 2010 to remove “frighten” from the list of intent. The House passed the bill as amended and sent it to the Senate for consideration. The bill was referred to the Senate Committee on Judiciary.
- Media Coalition sent a memo to the members of the committee [1], reiterating the constitutional issues with the bill.
- The committee amended the bill [6] on May 19, 2010 to limit the crime to “malicious and willful intent.” The committee recommended the bill be passed as amended.
- The Senate passed the amended bill on June 8, 2010. The bill was sent back to the House for concurrence with the amendments.
- The House rejected the Senate amendments to the bill. A conference committee was appointed.
- On June 17, 2010, the conference committee redrafted [7] the bill. The requirement of “malicious and willful intent” is still in the bill. The House and the Senate passed the conference committee’s bill.
- Gov. Bobby Jindal signed the bill into law on July 6, 2010. It goes into effect August 15, 2010.