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Freedom of speech trumps concerns over cyberbullying

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"Whoever sends information to another person by electronic means with the intent to annoy, offend, demean, ridicule, degrade, belittle, disparage or humiliate any person and which serves no legitimate purpose shall be required to forfeit not less than $50.00 nor more than $500 together with the cost of prosecution and in default of payment shall be sentenced to the County Jail until such forfeiture and costs are paid, not exceeding 30 days."

— Vernon County Ordinance, 11/8/12, "Prohibition of Certain Electronic Messages"

When reading this ordinance the first question many people rightfully ask is, "What about the First Amendment? Free Speech?" The First Amendment is absolute "Congress shall make no law abridging the freedom of speech." Abridging ironically means diminish, degrade, belittle. So, the founders could not have been clearer. no law diminishing freedom of speech. Even annoying speech is protected speech. Annoying isn't it?

Unfortunately after 200+ years of court interpretations the meaning of "no laws abridging the freedom of speech" has morphed into "some laws may abridge the freedom of speech." This county ordinance is an example of one such law. Constitutional experts are split on the constitutionality of such laws.

Interestingly, one of the arguments made defending the constitutionality of the proposed county ordinance was the cliché, "Shouting fire in a theater." This phrase comes from a 1919 Supreme Court decision justifying the 1917 Espionage Act, which criminalizes un-American speech during times of war. Judge Oliver Wendell Holmes wrote this for the majority opinion:

"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent" (1)

The result of this decision was that 175,000 Americans were arrested for speech critical of American policies during WWI. No laws had become some laws are OK. This Supreme Court decision is still on the books today. It can and has happened here.

In Madison over the last several months almost 60 tickets have been issued for "speech without permit" violations within the capital. Like the protesters say "The First Amendment is all the permit I need". Tickets for speech has and is happening now.

Today I had to decide if speech which may, "annoy, offend, demean, … any person" without "legitimate purpose" rises to the level of presenting a "clear and present danger," whose use will bring about "substantive evils" if the board doesn't stop it. This is not an easy decision, as one has to weigh whether annoying speech is likely to create the "clear and present danger" of the "substantive evils" of someone hurting themselves or others.

We know bullying has in the past and probably will in the future cause such behavior. But that is the exception, not the norm, as most people ignore the bully's barbs. We have learned as Tom Petty sings, "You need rhino skin, if you're gonna begin to walk through this world." Because this annoying speech is therefore, not likely to produce "substantive evils" I voted against criminalizing annoying speech. The ordinance passed 23-5. Also voting against the ordinance were supervisors Don Subra, Jerry Johnson, A. Richard Brose and Francis Hynek.

The ordinance passed, not trumping free speech, but because the board respected the sheriff's request for a tool he said he needed to combat the problem of cyberbullying. Sheriff Spears said he could already bring charges for this type of criminalized speech under (Wis. Stat. 947.0125), Unlawful Use of Computerized Communication Systems Law, which criminalizes intentional intimidation, threats, or abuse via electronic communication. Sheriff Spears said he would prefer to issue a ticket or even use the threat of a ticket to stop cyberbullying, rather than take someone into state court.

I like and agree with the sheriff’s reasons. In fact, I'm confident that Sheriff Spears will use this law to do just that and not be tempted to ticket everyone whose speech is annoying. But, there is nothing in the ordinance that would forbid him or some future sheriff from doing just that. We need to find a better way to solve the bully problem other than criminalizing whoever’s speech we find annoying, without bullying free speech. Any Ideas?

(1) http://en.wikipedia.org/wiki/ Schenck_v._United_States

(Dennis Brault is from rural Viroqua and is the Vernon County Board Supervisor for District 13.)

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