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Online harassment can include unwanted emails, texts and direct messages; blog posts; nonconsensual intimate photos and videos; doxxing; impersonation; and illegal hacking. Online harassment laws that are overly broad in criminalizing protected speech can run afoul of the First Amendment. However, criminal conduct that involves speech is not immunized under the First Amendment. Also, some types of speech, such as true threats, are not protected by the First Amendment.

Online or cyber harassment affects the lives of a huge variety of people, including scientists, journalists, artists, politicians and law enforcement.

It also wreaks havoc on the lives of victims of domestic and sexual abuse. The internet has produced many new methods of harassment in electronic form: unwanted emails, texts and direct messages; blog posts; nonconsensual intimate photos and videos; doxxing; impersonation; and illegal hacking.

Unlike face-to-face interactions, online harassment often involves strangers or anonymous communications, which can make identifying the perpetrator difficult. The harasser could be thousands of miles away. Or next door. In addition, the content of the harassing speech varies in severity from simple name calling to humiliation, body shaming, sexual harassment, racial epithets and threats of violence. 

A PEW Research Center report issued in January 2021 surveyed over 10,000 adults in the United States and found that 41% reported experiencing online harassment. Women are reported to be twice as likely as men to experience online harassment. People of color and those in the LGBTQ+ community are also more frequently targeted than the general population.

The National Domestic Violence Hotline conducted a survey in 2022 of 960 survivors of domestic abuse and found that 100% of respondents had experienced at least one form of online harassment or abuse. In June 2022, President Joe Biden issued a Presidential Memorandum that established the White House Task Force to Address Online Harassment and Abuse

Defining harassment

The concept of harassment, like hate speech and obscenity, is used in different ways both legally and colloquially. It is hard to define. Merriam-Webster defines harass as “to annoy persistently,” and “to create an unpleasant or hostile situation for especially by uninvited and unwelcome verbal or physical conduct.” Black’s Law Dictionary defines harassment as “[w]ords, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress to that person and serves no legitimate purpose; purposeful vexation.” As indicated by those definitions, harassment encompasses both speech and conduct. 

Many laws provide a specific definition harassment, while other laws use harass or harassment as an element or description, like anti-stalking and anti-bullying laws. For example, a Wisconsin law makes it a misdemeanor to threaten injury or physical harm via electronic communication “with intent to … harass another person.” Wis. Stat. §§ 947.0125(a)-(b). In 2022, the Colorado Supreme Court held that part of the state’s harassment statute was unconstitutional because the phrase “intended to harass” was overbroad. The court reasoned that “people often legitimately communicate in a manner ‘intended to harass’ by persistently annoying or alarming others to emphasize an idea or prompt a desired response.” 

Legal regimes of state criminal laws against harassment

Many states have specific criminal laws against harassment. New Jersey and Rhode Island even have laws against cyber-harassment (R.I. Gen. Laws § 11-52-4.2; N.J. Stat. Ann. § 2C:33-4.1 (West)). States that do not have specific harassment laws often have relevant laws against stalking or menacing. There is a federal law against cyberstalking (18 U.S.C. § 2261A). 

Cyberbullying is one type of harassment, usually involving minors in an educational setting. U.S. law also recognizes specific categories of harassment in the workplace and in educational settings, known as hostile environment harassment. While online harassment may be involved, those specific settings and harassment laws are not the subject of this article.  

Victims of harassment may also seek injunctive relief or an order of protection against a harasser. In a Massachusetts case, for example, the plaintiff obtained an abuse prevention order against her ex-boyfriend that restricted his ability to post information about her online or to encourage “hate mobs.” 

A significant issue with harassment cases can be the challenges in enforcing the law against anonymous harassers and those who conceal their digital tracks. These technical challenges pose problems for law enforcement officers who may not have the training or expertise needed to identify the perpetrators or assemble electronic evidence. In one extremely disturbing instance of sexual harassment and stalking, police needed two years to gather the evidence needed to prosecute the harasser.  

First Amendment concerns with overly broad harassment laws

Laws aimed at combatting online harassment raise First Amendment problems when they are overbroad and restrict — or potentially restrict and chill — protected speech. Valid laws therefore can avoid those problems if they aim at conduct rather than speech. Or if speech is included, such laws should aim narrowly at constitutionally unprotected speech, like true threats and speech integral to criminal conduct, and be content neutral

Unwanted communications can be harassing regardless of content or viewpoint. Repeated phone calls at night “would be equally intrusive whether they conveyed messages of hate or love.” Voluminous unwanted emails or comments on social media can be harassing. Valid legal restrictions, therefore, must avoid criminalizing or restricting speech based on its content or viewpoint. In 2019, a North Carolina appellate court overturned a stalking conviction against a defendant because the indictments against him were based in part on social-media posts about the victim, which the court found was an impermissible content-based restriction. 

Online harassment laws have often run afoul of the First Amendment overbreadth doctrine, as noted above with the Colorado harassment statute. In 2017, the Illinois Supreme Court held that part of the state’s stalking and cyberstalking statutes were unconstitutionally overbroad where they sought to criminalize two or more nonconsensual communications “to or about” a person, where the speaker knew or should have known the communications would cause a reasonable person to suffer emotional distress. The court found that the statutes “criminalize[d] any number of commonplace situations in which an individual engages in expressive activity that he or she should know will cause another person to suffer emotional distress.” 

Online harassment that rises to the level of a true threat, and other forms of constitutionally unprotected speech, can be restricted by anti-harassment laws. For example, a Massachusetts appellate court upheld a man’s conviction in 2022 based on blog posts about the victim. The blog posts included photos of the victim and statements such as “[name] RIP … May my beautiful and beloved [name] rest in peace.” In 2023, the U.S. Supreme Court raised the burden of proof in true threats cases.

The Supreme Court held in Counterman v. Colorado (2023) that a criminal conviction based on a true threat must include evidence that the defendant had a subjective mental state of recklessness in making the threat, meaning the defendant “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” This heightened burden of proof will arguably make convictions more difficult.

For more information about online harassment, see the PEN America, Online Harassment Field Manual.

Benjamin Wilson is the Stanton Foundation Legal Fellow in the First Amendment Clinic at Washington University School of Law. The clinic represents clients in matters advancing and defending freedom of speech, press, and assembly. 

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