Bloggers Take Note: Censoring Critical Blogs as “Harassment” Would Violate the First Amendment

Under a recently-introduced bill, H.R. 1966, bloggers would face up to two years in prison if they “harass” public figures by criticizing them in a “severe, repeated, and hostile” manner, and thereby cause them “substantial emotional distress.” U.C.L.A. Law Professor Eugene Volokh, the author of a First Amendment treatise, has concluded that the bill is unconstitutional. I agree, as I explain here. As a federal appeals court noted in DeJohn v. Temple University (2008), “there is no harassment exception to the First Amendment’s free speech clause.” Speech that causes emotional distress can be protected,as the Supreme Court made clear in barring a lawsuit by Jerry Falwell over an offensive parody. Under this bill, a blogger like Emile Zola, the courageous writer who exposed an anti-semitic witchhunt a century ago in the infamous Dreyfus Affair through his repeated and “vehement public” denunciations of public officials, would be subject to prosecution. His “severe, repeated, and hostile” denunciations resulted in many public figures being discredited and removed from office, which no doubt caused them “substantial emotional distress.”...Hans Bader