Cyber Harassment and Free Speech

For most people the internet has been a dream come true, allowing instantaneous access to a vast array of information, opinion, and entertainment and facilitating communication with friends and family throughout the world. For others, however, the internet has wrought a nightmare, allowing often anonymous enemies a platform for vicious attacks on the character of their victims and a means for revealing to the world embarrassing private information about them. To combat these attacks, victims and law enforcement officials in the United States have employed both analogue remedies such as harassment and stalking laws as well as cyber-specific provisions. Since the attacks involve speech, however, all these remedies must comport with the First Amendment. The typical response of courts and commentators to the First Amendment issues raised in these cases is to ask whether the perpetrator’s speech falls within one of the limited and narrow traditional exceptions to First Amendment coverage, such as true threats, defamation, obscenity, or fighting words. This approach is understandable in light of unfortunate dicta in several United States Supreme Court decisions—that all content-based restrictions of speech other than speech falling within one of these exceptions are subject to “strict scrutiny,” a rigorous test that few speech restrictions can pass. This chapter argues that this approach to dealing with cyber harassment is misguided. This methodology often results in shoehorning the speech at issue into exceptions into which the speech does not fit, or worse yet, in a finding that the speech is protected by the First Amendment simply because it does not fall within a recognized exception.