Summary
Nebraska Legislative Bill 892 would make it a crime to use an “electronic communication device” to contact another person using indecent, lewd or lascivious language or to suggest a lewd or lascivious act with the intent to annoy, offend, harass or terrify.
The bill deems the use of indecent or lewd language or the making of a lewd suggestion as prima facia evidence of an intent to annoy, offend or harass. The legislation offers no definitions for annoy, offend, harass or terrify either in the statute or by reference. Indecent, lewd and lascivious are not defined in the bill. “Electronic communication device” is defined broadly to include computers, tablets, cell phones, television, radio and any other electronic medium.
Status
The bill is in the Committee on Judiciary.
Analysis
» The bill criminalizes speech that does not rise to the level of harassment, intimidation or serious threat.
The bill does not require that the communication have to be one to one or for it to be repetitive or unwanted. There is no requirement that the recipient or subject of the speech actually feel offended, annoyed or scared. It is unclear if the communication must be intended to offend or annoy a specific person or if a general intent to do so is sufficient.
There are numerous recent examples of speech that was intended to be provocative and could be criminal under the bill:
- Donald Trump’s numerous comments about Megyn Kelly of Fox News, which some may consider lewd and indecent and which he may have intended to offend or annoy her.
- Bill Maher’s standup routines and Jon Stewart’s rants on his cable show, which use indecent language in critiquing politicians, often with an intent to annoy them.
- Ann Coulter’s books, TV appearances and Twitter feeds that discuss liberals with a clear intent to offend them.
- Stephen King’s novels and the Halloween films are intended to terrify the viewer or reader and include indecent language.
» There is no exception to the First Amendment for speech that annoys or offends.
There is no historic exception to the First Amendment protection for speech simply because it annoys, offends or even terrifies, regardless of whether it is lewd or lascivious. Nor is there an exception to the First Amendment for speech that is indecent or lewd speech that suggests a lewd or lascivious act that is not obscene.
In recent First Amendment cases, the Supreme Court has indicated that it is reluctant, if not unwilling, to expand the categories of unprotected speech to include different kinds of offensive or distasteful communication beyond the historic exception.
» As a content-based regulation, the bill must then satisfy the strict scrutiny test, but it is likely it will fail that test.
Therefore, the legislation must satisfy strict constitutional scrutiny. Though the legislature may have a compelling interest in protecting individuals from being harassed, threatened or intimidated, there is no compelling interest in protecting them from hearing off-color or explicit language. But as noted, the bill is not narrowly tailored to instances of harassment, intimidation and serious threats.
The proposal is also not the least restrictive means to accomplish its purpose. Nebraska’s present law governing annoying or offensive telephone calls may be appropriate for traditional residential phones, but modern electronic devices provide an array of options to avoid such annoying contacts. These devices allow individuals to know who is attempting to contact them, to block the individual and to turn off a device or receive a special signal for select contact. These technologies can prevent most of the behavior that the law addresses without threatening protected speech.
History
- The bill was introduced [2] on January 11, 2016 and referred to the Committee on Judiciary.
- On February 4, 2016, Media Coalition submitted a legal memo [1] to the committee, explaining the constitutional issues with the bill. The memo was submitted ahead of a scheduled hearing on the bill on February 11, 2016.