Summary
Wisconsin Senate Bill 184 would make it a crime to post a message electronically using obscene, lewd or profane language or to suggest a lewd or lascivious act if done with the intent to annoy, offend or harass.
There is no definition for “annoy,” “offend” or “harass.” There is also no definition for “lewd” or “profane.”
Status
The bill died in the Senate.
Analysis
Government may criminalize speech that rises to the level of harassment, and many states have laws that do so, but this legislation takes a law originally meant to address irritating phone calls and applies it to communication on web sites, blogs, listservs and other Internet communication. It is not limited to a one-on-one conversation between two specific people. The communication does not need to be repetitive or even unwanted. There is no requirement that the recipient or subject of the speech actually feel offended, annoyed or scared. Nor does the legislation make clear that the communication must be intended to offend or annoy to reader, the subject or even any specific person. There is not even a requirement that any person has to actually view, hear or read the communication.
There is no exception to the First Amendment for speech intended to offend, annoy or scare someone. A Danish newspaper posted pictures of Muhammad that were intended to be offensive to make a point about religious tolerance. If a Muslim in Wisconsin considers the images profane and is offended, the paper could be prosecuted. Some Wisconsin residents may consider Rush Limbaugh’s comments about a Georgetown law student lewd. He could be prosecuted if he intended his comments to be offensive. Similarly, much general content available in the media uses racy or profane language and is intended to offend, annoy or even terrify: from Bill Maher’s stand-up and Jon Stewart’s news comedy program to Ann Coulter’s books criticizing liberals or Christopher Hitchens’ expressions of disdain for religion. Even common taunting about sports between rival fans done online is frequently meant to offend or annoy and is often done using profane language.
In certain narrow, well-defined instances, speech may rise to the level of coercion, threats, intimidation or persistent harassment and amount to a crime. This bill does not define many of its terms adequately to distinguish between protected speech and the traditional narrow crime of harassment. A substantial amount of speech in the media could be subject to this legislation, but 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 May 16, 2013, the bill was introduced [2] and referred to the Senate Committee on Education.
- The Committee held a hearing on the bill on October 3, 2013 and recommended the bill be passed.
- Media Coalition sent a memo in opposition [1] to the members of the Wisconsin Senate on October 16, 2013, explaining the constitutional issues with the bill.
- The bill was carried over to 2014. Rep. Cory Mason was added as a co-sponsor on January 8, 2014.
- The bill died in the Senate.