"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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(3) comments

Dennis Brault

Corrections: The board vote was 22-5 and Gary Thompson not Jerry Johnson voted against the ordinance. Sorry, my, mistake.

youralllame

so instead of trying to control the internet,which by the way you cant,control and teach your children first try by putting your device down the come back to the real world and raise your own children seek help for that facebook addiction and regulate who is on the internet not what other people say legal age and a valid internet license and maybe just maybe big brother will step off because frankly your tiny little ordinance wont do the job so lets get the children off the internet books back in the classroom and register and license internet users since any fool can go on youtube and learn to hack and steal free wifi and use a disposable device or a mac cloner software all the while hiding behind one way proxies and mirrors to harrass and annoy others and frankly it doesnt even begin to cover so many other types of cyberbulling and cyberharrassment or is the board going to go after every website that sends emails out?

youralllame

what a bunch of Etards that must live in vernon county.I choose my first amendment right to laugh at a bunch of E tarded crybabies and the lawmakers who enable this overbearing behavior what a joke so will the sheriff be arresting the board for passing such an ordinance since i find all of this over regulation very annoying and tickets would be considered harassment in my book so a whole county cant handle finding the off switch or are they just to feeble minded to turn off those annoying devices go ahead and hate me but the first amendment is still the law where i live and vernon county ordinances dont apply here in the REAL world not some place with less than 6000 hillbilly folk and these same people have no problem letting their underage children violate the terms of use on facebook and other sites so instead of being such a bunch of vernon county hypocrites lets all band together and require all persons to be over legal age and licensed to use the internet thats all we need to do.

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