Criminalizing Dissent

Prosecutors can find it challenging to prove the intent to harm was present in online interactions. “It’s a hard burden for us to prove with any activity on the Internet,” Wakefield noted.

It is common for users to mimic celebrities or politicians by creating fake social media accounts, but Wakefield said it would be difficult to prove the intent to harm with satire or joke accounts of a public figure.

In a case in which someone creates an account of a well-known figure and tries to damage his or her character, then that action would fall under the law, he said.

(Houston Chronicle.)

John, John, John. I know that you’ve grown a bit fuzzy on this First Amendment stuff, prosecuting those online-solicitation-of-a-minor cases, but could you at least make sense? One person can’t “damage” another person’s “character.” One’s character isn’t affected by what other people say about her.

I presume that you mean either “tries to impugn his or her character,” or “tries to damage his or her reputation.” If that’s what you consider sufficient “intended harm” for purposes of Texas’s online impersonation statute, Texas Penal Code Section 33.07, then you’ve just unwittingly demonstrated the unconstitutionality of the statute. 

Why? Because, this being America, we are allowed to impugn the character of other people. We are allowed to try to damage other people’s reputations. All without fear of criminal prosecution. Short of libel, the First Amendment protects our right to badmouth people.

Attempts to impugn others’ characters and damage their reputations are not necessarily libelous—many people have poor character and deserve bad reputations—and falsity is not an element of the offense.

With the Online Solicitation of a Minor statute (which purports to outlaw non-solicitative sexually related messages to minors and adults who represent themselves to be minors) Texas is trying to create a previously unrecognized exception to the First Amendment. Prosecution of cases under Section 33.07 marks the opening of a second front in Texas’s war on the First Amendment.

This assault is of more immediate concern because, rather than merely our right to talk dirty (to each other and, yes, to children), it directly implicates our right publicly to criticize government officials.

(See also Fake Pat Lykos and Fake Todd Dupont.)

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