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The TPJ wants to hear from you!
The Publications Committee will
poll members concerning their thoughts
on some of the “hot topics” of the day.
During each quarter, the Committee will
draft a question, which will be distributed
to membership, through the Directors.
Each question will direct you as to where
to send your response. We will print the
responses in the following TPJ, reserving the right to edit for space considerations. While we prefer to print a name and city
with each response, we understand that some of you may prefer that we not print your name. We will honor this request, so long
as the response is not contrary to the objectives of the Paralegal Division or the Publications Committee. We hope that this
column provides a way for PD members to express themselves, constructively, on issues that impact our profession, our
communities, and our country.
Question of the Quarter:
On January 5, 2006, President Bush signed into law H.R. 3402, the “Violence Against Women and Department of Justice
Reauthorization Act of 2005.” Section 113 of H.R. 3402 amended 47 U.S.C. § 223. The relevant
language of Section 223 now provides that
“[w]hoever...utilizes any device or software
that can be used to originate telecommunications
or other types of communications
that are transmitted, in whole or in part, by
the Internet... without disclosing his identity
and with intent to annoy, abuse, threaten,
or harass any person...who receives the communications...
shall be fined under title 18 or
imprisoned not more than two years, or
both.”
Essentially, this means that if you use a
fictional name or otherwise attempt to
anonymously send an e-mail or post a blog that you know will “annoy” others, you can go to jail or be fined, or both. Do you
believe this law is a serious infringement of our First Amendment right of free speech?
(The entire text of 47 U.S.C.
223(a)(1)(C) and the amendments to 47
U.S.C. 223(h)(1) can be viewed at
http://people.delphiforums.com/Nursevic/
eannoy/eannoy2.html; a C\Net
News.com article discussing the amendment
is at http://www.news.com/Createan- e-annoyance,-go-to-jail/2010-1028_3- 6022491.html.)
RESPONSE: The inclusion of the word “annoy” may put this law into violation of free speech territory. If they left
it just at “abuse, threaten or harass” then free speech might not be so much of an issue. “Annoy” is very broad and general,
to make it even more problematical. Almost everything we say annoys someone, somewhere, somehow, at some point in time. It
might be nice to have a constitutional right not to be annoyed, but I know of nowhere in the Constitution or in case law or in
statute that says that we do. Free speech is protected even if it is offensive or disgusting—good discussion of that in Texas
v. Johnson, 491 U.S. 397.
—Mary K La Rue, El Paso
RESPONSE: No, this law is not an
infringement of the First Amendment; this
law is very welcome.
—Linda Asteris, Beaumont
RESPONSE: In response to whether the
above-captioned law violates our constitutional
right to free speech, I believe that it
does. There are already civil remedies that
can be utilized if someone is harrasing
another person. I do not believe that it
should be a criminal offense unless the
conduct amounts to terroism or stalking.
—Grace Duplesses, C.L.A., Corpus Christi
RESPONSE: I do not think it is an
infringement on my 1st amendment rights,
and would welcome a way to stop the
unwanted filthy spam e-mails of a highly
sexual content. I don’t know where they
are coming from and they do not contain
any “unsubscribe” information to stop it.
The e-mails are offensive and disgusting.
It is a violation of MY RIGHTS to be subjected
to them.
—Patti Claar, TBLS, Plano
RESPONSE: This law is constitutionally
problematic. Perhaps what is most troubling
is this begged underlying question:
When is speech that’s intended to annoy
the recipient protected by the First
Amendment? Since the statute is so vague,
drawing no distinction between what constitutes
protected annoying anonymous
speech and what constitutes unprotected
annoying anonymous speech, anonymous blog posters do not know what they may
or may not safely say. It’s as if Congress
enacted a slew of speech restrictions but
attached an “except if the First Amendment
prohibits this” to them.
Furthermore, it would have helped to
define “annoying” and “telecommunications
device” clearly to avoid ambiguity. If
politicians wanted to limit the law to VoIP,
they could have followed what they did in
other bills and actually used that term.
They could have also limited the “annoy”
requirement to contacting an individual
person.
But this didn’t happen. Instead, the law
covers any types of “communications that
are transmitted, in whole or in part, by the
Internet”—not just VoIP conversations.
Also, it covers any person “who receives
the communications” rather than a narrower
definition that could have been
written as “an individual intentionally targeted
as the recipient of the communications.”
At the very least, Congress has a duty
to clear things up and fix the ambiguities
in this law, since it probably violates the
free speech rights of all Americans guaranteed
under the First Amendment and,
most likely, will be declared unconstitutional
if someone actually tries to enforce
it.
—Kim Messeri, McKinney
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