SCN: Speech

[Steve]

x-no-archive: yes

===========================


(Carl S. Kaplan, NY Times)---First Amendment victories come in 
many forms. Sometimes they're easy to spot -- like when a judge's 
strikes down a law because it violates the freedom of expression. 
Less obvious, but perhaps just as important, are little acts of 
prosecutors -- such as the decision earlier this week by Westchester 
County district attorney, Jeanine F. Pirro, to forego prosecuting two 
high school students who were arrested for their involvement in the 
creation of a Web site that contained names, telephone numbers 
and alleged sexual exploits of dozens of their female classmates.  

Civil liberties experts are applauding the district attorney's 
capitulation. "I was kind of skeptical about the viability of this 
criminal prosecution and it appears that the D.A. agrees," said Chris 
Hansen, a lawyer with the American Civil Liberties Union who 
specializes in Internet cases.  

Ms. Pirro's office issued a release on Wednesday stating that after 
a review of the information supplied by the police, she had 
determined that "there is not sufficient evidence to support a 
criminal prosecution." A spokeswoman for the district attorney said 
in a telephone interview that while "we found the material on the site 
offensive and reprehensible," there was nothing in it to bring it up to 
the level of a crime.  

"Unfortunately, the two kids got arrested, which is kind of sad," the 
ACLU's Hansen said. Their "crime" was nothing more than 
publishing speech on the Internet, albeit unsavory speech, for which 
they should be embarrassed, he added. Law enforcement initially 
"overreacted," as they sometimes do when expression on the new 
medium of the Internet is involved, said Hansen.  

The two male students, both 18-year-old seniors at Horace Greeley 
High School in Chappaqua, were arrested on May 30 by New Castle 
police officers and charged with one count of aggravated 
harassment in the second degree, a misdemeanor that carries with 
it a maximum penalty of up to one year in jail and a $1,000 fine.  

Although police officials, as is their policy, declined to reveal the 
names of the youths, their Web site had become notorious in the 
school. The site, which has been shut down, not only commented on 
the alleged sexual preferences or activities of more than 30 girls, 
but also included comments on their looks, eating habits and their 
parents' marital problems, according to the news accounts.  

Under the New York State penal law, a person is guilty of 
aggravated harassment in the second degree, when, with intent to 
"harass, annoy, threaten or alarm another person," he or she 
"[c]ommunicates, or causes a communication to be initiated by 
mechanical or electronic means 
 in a manner likely to cause 
annoyance or alarm."  

In simple English, according to Hansen, aggravated harassment 
laws in New York and other states are designed to punish certain 
annoying or harassing behaviors, not speech, and thus are poorly 
suited as weapons against Web sites.  

A typical case of aggravated harassment is made out when a bill 
collector calls a debtor 100 times in a short span of time, according 
to several important legal opinions in the history of the New York 
harassment statute. A key element of the law, according to the 
courts, is that the annoying or harassing communication must be 
transmitted directly to an unwilling listener, thus violating her peace 
and privacy.  

For that reason, in a 1985 case, the Appellate Division of the 
Supreme Court held that the distribution of a custom-made magazine 
accusing a lawyer of homosexuality and dishonest dealing could not 
be an instance of aggravated harassment, because there was no 
direct communication to the victim but merely "the distribution of 
literature, offensive though it may be."  

"Plainly, not every scurrilous or unsavory communication 
concerning an individual, no matter how repulsive or in what degree 
of poor taste, necessarily constitutes criminally harassing conduct," 
wrote the court in that case, People v. Dupont.  

Similarly, in a 1989 case the New York Court of held that the act of 
calling someone a "bitch" in a public space could not be punished 
by the harassment statute because "abusive -- even vulgar, 
derisive, and provocative" speech is protected by the First 
Amendment. States may prohibit public speech only to the extent 
that the talk creates an imminent danger of violence, said the court. 
In a related case, a mid-level New York appellate court in 1990 
found that a defendant's telephone message to another, calling her 
an "ugly, selfish bitch" was an instance of aggravated harassment, 
because the speech was not public but an intolerable "trespass by 
telephone."  

One decision last year in New York did find that the creator of a Web 
site was guilty of aggravated harassment, but the facts in that case 
are unusual. A man who had a prior relationship with a woman and 
who wished to negatively depict her, created a Web site that 
contained suggestive pictures of the woman and attributed to her an 
infatuation with sex. On the site, the defendant wrote that the woman 
would be willing to meet potential partners should they contact her. 
The defendant supplied the woman's address and telephone 
numbers, and the woman received at least two annoying calls from 
strangers.  

The Supreme Court held in the case, People v. Kochanowski, that 
Mr. Kochanowski was guilty of aggravated harassment because he 
did not simply distribute his materials over the Internet, but, via a 
hoax site, essentially "directed" sex-interested people to call the 
woman at her home and place of work. Mr. Kochanowski was 
responsible for those harassing calls, the court said.  

For Hansen, the "perfect analogy" to the Westchester students' Web 
site is the Dupont case, where the court held that the general 
distribution of an offensive magazine cannot constitute aggravated 
harassment. "If in fact these two students said things that are false 
and defamatory, then there might be a civil cause of action" for 
defamation," said Hansen. "But there is no criminal case."  

Other free speech experts expressed relief -- and little surprise -- at 
the news that the two young men would not be prosecuted. "It 
seemed to me a real stretch when I read the story. I think [the D.A.'s 
decision] is absolutely correct," said Robert O'Neil, a law professor 
at the University of Virginia and director of the Thomas Jefferson 
Center for the Protection of Free Expression, a free-speech 
advocacy group based in Charlottesville, Virginia.  

O'Neil said that although there have been criminal prosecutions 
against individuals for sending harassing e-mails to individuals, or 
for making "actionable threats" in chat rooms, he knew of no case in 
which a criminal charge for aggravated harassment had gone 
forward "solely on what is by definition purely verbal activity." 
Based on the news reports, he said, the Westchester students' Web 
site featured "pure speech," and did not contain any criminal 
behavior such as threats or stalking. Nor did the site appear to be 
intentionally designed to trigger a rash of annoying calls by viewers 
of the site to the depicted women. "The site just doesn't fit into any 
actionable categories," he said.  

Sally Greenberg, a public interest lawyer in Washington, D.C., and 
the author of an influential 1997 article on Internet harassment, said 
that all Web sites, no matter how repulsive or obnoxious, are 
protected by the First Amendment, including sites put up by 
members of the Klan. "It's all protected speech," as long as the 
sites don't make credible threats or put someone in danger, she 
said.  

Ms. Pirro's decision to drop the case "is not a nice conclusion to 
reach," said Greenberg, "but it's probably the legally correct 
conclusion."  


Copyright 2001 The New York Times Company






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