When Technology, Free-Speech, Privacy, and Bad Behavior Collide
Last week was one of the more interesting weeks for public hearings on legislation before the House Criminal Justice and Public Safety Committee. On Wednesday, sponsors pitched their cases for several bills where privacy, technology, free-speech, and questions about ethics and responsibility all collided. Here’s the story.
Technology Shows Its Dark Side
While technologies such as cell phones, video cameras, and the Internet have led to a boom in our economy, millions of new jobs, and an abundance of new media and entertainment options, the downside is their dark side. When used irresponsibly, unethically, or with malicious intent, reputations can be harmed and innocent lives endangered.
Legislating against some of the negative impacts of these technologies is easy. For example, banning the use of hand-held cell phones while driving has been a relatively easy bipartisan call for most state legislatures across the country. But legislating against some of the other negative impacts of technology and electronic media—and the behaviors of the people using them—often proves to be difficult, complex, constitutionally-suspect, and prone to unintended consequences. The simple truth is that while we can encourage responsibility in others and do our best to try to model responsible behavior ourselves, legislating responsibility can be a slippery slope.
Here are some examples just from Wednesday.
HB1159
Problem: Toxic bloggers and social media trolls are targeting certain state legislators (mostly female) and their family members with inflammatory posts that encourage cyberstalking, cyberbullying, and “doxxing”. Doxxing is the sharing of personal information (address, employer, etc.) and/or photos of a person’s home and children in a attempt to intimidate. Doxxing can give unstable people the information they need to pose a threat to another person’s property, family, or employment status.
Proposed solution: HB1159 would add cyberstalking, cyberbullying or doxxing a public servant to an existing New Hampshire law that makes it illegal to interfere with legislators in the performance of their duties.
My thoughts: It seems pretty clear that the state has a public interest in discouraging behaviors like slashing tires or blocking driveways to prevent legislators from reaching Concord on voting days. But extending the current law that bans this sort of behavior to add speech—albeit toxic forms of speech—seems like a violation of the 1st Amendment and would be perceived by many as an attempt to chill the free speech rights of citizens who disagree with legislators. On the other hand, the courts over the years have consistently found that the right to free speech is not absolute. This is why we have laws on the books that make perjury a crime along with libel, slander, and harassment. Unfortunately, part of the job of being a legislator is dealing with the disagreeable and occasionally toxic invective that comes your way. But I also believe that when online disagreements over issues rise to the level of threatening behavior, a line has been crossed. The good news is this line already seems fairly well-defined in our existing state harassment statute. While I would be open to the idea of adding language that protects personal information like the names or photos of any individual’s children with the intent to incite harassment or violence (see below), I am far less open to creating any law that could potentially have a chilling effect on speech that individual legislators may not agree with. For that reason, I’ll likely oppose this bill as written when we meet to vote on it in executive session. But regardless of what happens to the bill, the sponsors have done a public service by shining a spotlight on the real need for today’s bloggers and so-called “citizen journalists” to do a better job of self-policing and to act more ethically and responsibly. With traditional media outlets cutting staff and covering fewer stories, citizen journalists have the potential to play a valuable role in informing the public. But weaponizing online media to humiliate, distort, demonize, doxx, and gaslight the people who disagree with you doesn’t make your stories better or your arguments any stronger. If anything it makes them weaker while turning your platform into a free-speech carnival act playing exclusively to like-minded people drifting on the far margins of respectability and credibility. Worse, this sort of behavior can result in an unwanted backlash leading to well-intentioned attempts to change the law in ways that may seem reasonable given the harm created, but that inevitably send both the harmful and the harmless flying down the same slippery slope. Supreme Court Justice Hugo Black said it well in 1971 in his ruling in New York Times v. United States:
“In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors.”
HB1283
Problem: Same as above, but focusing more narrowly on the problem of doxxing as a tool for online harassment.
Proposed solution: HB1283 would expand the definition of criminal harassment to include the online disclosure of personally identifiable information with the intent to harass or intimidate.
My thoughts: While I tend to disagree with the sponsors of this legislation on many issues, I do agree that if we are to consider changes to extend our harassment law to cover online social sharing of personal information with the intent to harass or incite harm, there should be a good faith discussion about doing it in a way that protects ALL New Hampshire citizens—not just legislators. But as always, the devil is in the details. For example, the only difference between you proudly sharing a photo of your child or grandchild publicly on Facebook, and harasser sharing the same photo on Facebook, is intent. Both the photo itself and the medium used are exactly the same. What’s different are the intentions of the person doing the posting. Proving intent under the law means being able to identify the state of mind of another human being—potentially doable if that person leaves a trail of toxic and threatening posts, but far more difficult to prove if the post seems innocuously worded and there’s no online trail of threatening behavior. Properly defining “intent” and the specific behavior that will be criminalized are critical to avoiding unintended consequences. This bill is a good example of some of the conflicts we see between the right to free speech, which is guaranteed under both our state and federal Constitutions, and our right to privacy, which is not specifically listed in the Bill of Rights of the federal Constitution and only restricts the government—and not companies or individuals—from sharing personal information in our state Constitution.
HB1524
Problem: Law enforcement organizations are sharing booking photos online of people accused—but not convicted of non-violent crimes. In at least one case, a woman had a job offer withdrawn after a new employer googled her name and her booking photo came up in the search.
The solution: HB1524 would make it a felony for law enforcement to share personal information, such as sharing booking photographs of people accused of non-violent crimes on social media.
My thoughts: This is a case where a questionable practice and lack of consistent social media policies has prompted a request for legislation. Put simply, except in very rare cases, it’s hard for me to see the public benefit of sharing photos of unconvicted, non-violent offenders online. While misdemeanors can be annulled and police records expunged, the Internet is forever. The potential for harm to the reputation and employability of the accused is very real. That said, this seems like an issue that could be much better addressed by law enforcement agencies taking the opportunity to review their social media policies to ensure non-violent offenders aren’t shamed, humiliated, or effectively rendered unemployable by ill-considered social media posts. Something I didn’t know before this hearing is that law enforcement often makes these posts as an alternative to responding to time-consuming but very legitimate right to know requests from the media. While I feel the bill as written is too heavy handed and restrictive, I also feel that law enforcement wields tremendous power over the people they protect and serve. That power should always be used responsibly and respectfully. Releasing names and addresses to the media is one thing. Opening a window to public shaming by releasing a photo on social media of a non-violent offender in the absence of a right to know request seems like a step too far.
HB1529
The problem: Some feel that when the media reports the names of mass-shooters and other mass-murderers, it glorifies a heinous individual and encourages potential copycat-killers.
The solution: HB1529 would force the media to withhold the name of a mass murderer for 45 days.
My thoughts: The courts have consistently held that with the exception of cases involving imminent threats to national security, the media is free to publish anything that’s not slanderous, libelous, or that crosses the line into criminal harrassment. In tragedies like these, releasing the names of the perpetrators makes it easier for journalists to uncover their possible motivations and to shed light on the timeline and the circumstances leading up to the crime. By understanding the factors that drove a person to do the unthinkable—and the circumstances that made such a terrible crime possible—we glean valuable knowledge that can help us reduce the risk of similar crimes taking place in the future. With so many ways for information to spread and leak electronically—and with the Constitution specifically guaranteeing a free press—focusing on restricting the media and impeding the public’s right to know is clearly the wrong way to go. Moreover, as representatives of the New Hampshire Press Association (Ben McQuade and Kimberly Haas of the Union Leader) pointed out, a 45 day delay would very likely generate an unwanted second news cycle when the name of the accused is finally released. Killing this bill seems like an easy call.
The Takeaway After a Long Day of Hearings?
Most legislators are genuinely concerned with protecting free speech and freedom of the press and are extremely skeptical of attempts to curtail either—no matter how well-intentioned. But when those freedoms are abused, used irresponsibly, or devolve into harassment or slander, those who claim to love these freedoms the most invite the sort of restrictions that no one wants.