Criminalizing Dissent

Prosecutors can find it challenging to prove the intent to harm was present in online interactions. “It’s a hard burden for us to prove with any activity on the Internet,” Wakefield noted.

It is common for users to mimic celebrities or politicians by creating fake social media accounts, but Wakefield said it would be difficult to prove the intent to harm with satire or joke accounts of a public figure.

In a case in which someone creates an account of a well-known figure and tries to damage his or her character, then that action would fall under the law, he said.

(Houston Chronicle.)

John, John, John. I know that you’ve grown a bit fuzzy on this First Amendment stuff, prosecuting those online-solicitation-of-a-minor cases, but could you at least make sense? One person can’t “damage” another person’s “character.” One’s character isn’t affected by what other people say about her.

I presume that you mean either “tries to impugn his or her character,” or “tries to damage his or her reputation.” If that’s what you consider sufficient “intended harm” for purposes of Texas’s online impersonation statute, Texas Penal Code Section 33.07, then you’ve just unwittingly demonstrated the unconstitutionality of the statute. 

Why? Because, this being America, we are allowed to impugn the character of other people. We are allowed to try to damage other people’s reputations. All without fear of criminal prosecution. Short of libel, the First Amendment protects our right to badmouth people.

Attempts to impugn others’ characters and damage their reputations are not necessarily libelous—many people have poor character and deserve bad reputations—and falsity is not an element of the offense.

With the Online Solicitation of a Minor statute (which purports to outlaw non-solicitative sexually related messages to minors and adults who represent themselves to be minors) Texas is trying to create a previously unrecognized exception to the First Amendment. Prosecution of cases under Section 33.07 marks the opening of a second front in Texas’s war on the First Amendment.

This assault is of more immediate concern because, rather than merely our right to talk dirty (to each other and, yes, to children), it directly implicates our right publicly to criticize government officials.

(See also Fake Pat Lykos and Fake Todd Dupont.)

8 responses to “Criminalizing Dissent”

  1. Isn’t Texas just copying federal law already in place for this? Or does federal law not pertain to non-solicitative, but sexually worded messages?

    • You’re talking about the online-solicitation-of-a-minor statute, right? Not only does federal law not forbid non-solicitative-but-related-to-sex messages (short of obscenity); neither does any other state’s law.

  2. Well, I’ll bet that line between sex messages and obscenity is really thin unless it’s specifically outlined in the statute. I’ve been seeing a lot of cases lately where the feds initiated the conversation in which they pretended to be minors. And the sentences the feds hand down are what seems to me to be unbelievably harsh. What brings you a two-year probated sentence at the state level will get you a guaranteed 20-years in lockup if the feds bring the charges.

    What happened to the little box we previously could check if we wanted to be informed when new comments were added to the blog in which we posted a comment? It’s been missing for a few weeks now and it was really handy.

  3. Mark, you have come a long way. I remember the day when people criticized others for registering a DBA .

    Happy Holidays!

  4. Here’s a story just out today about a FBI agent who initiated an online conversation, then broached the subject of having sex with children. This story shows the very fine line that exists between entrapment and actual crime prevention. It seems the feds are often crossing that line in these cases that provoke emotion from jurors. Whether the targets be big-mouth terrorist wannabes or completely innocent individuals just surfing the web. They know that if the defendant doesn’t take a plea and is brave enough to go to trial, the jurors will be likely to convict even if they have doubts as to entrapment.

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