Blogging and the Law

by John Holbo on January 10, 2006

No, not another post about how legal scholars are into it. Via Adam Kotsko, I learn that anonymous blogging is a lot less legal than you probably thought.

The fine print of the Waste of The Supreme Court’s Valuable Time Waiting To Happen Act Violence Against Women and Department of Justice Reauthorization Act:

“Whoever…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.”

Given that for all x, such that x is a political opinion, there exists some y, such that y is a person who will be annoyed by x, hell I’d say it’s no longer legal even for the NY Times to post unsigned editorials on their website. I guess you can invoke some sort of doctrine of double effect here. But you get into a position in which it is legal, say, to intend to damage someone’s political career by criticizing them; but not legal to intend to annoy that person? Am I missing something here?

UPDATE: Comments inform me the Volokhs are already debating this. Sorry to have missed that. (I should read more blogs.) Kerr says it’s just a kerfuffle. Eugene V. says maybe it’s really a problem.

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01.11.06 at 10:14 am



Ann Bartow 01.10.06 at 11:19 pm

Declan McCullagh misstates the law, see e.g.


Henry 01.10.06 at 11:30 pm

Orin Kerr over at VC says it is much ado over not so much: since the courts read a First Amendment exception into the analogous statute governing telephone communications, we can be certain that this statute will only be applied to truly unprotected and unworthy speech. Of course the statute says no such thing, which leads to the familiar problems that (1) laypersons reading the statute and unaware of the unstated First Amendment defense may censor themselves while (2) even a well-lawyered speaker may be unable to determine just where the reach of the law ends.

We used to face a similar problem under the National Labor Relations Act in those cases in which employers would bar all forms of “annoying” solicitations by co-workers in the workplace “except those that are protected by the National Labor Relations Act.” The NLRB held that this sort of lawyerly disclaimer did nothing to correct a rule that went too far. Until last year, however, when the Republican majority on the Board simply dispensed with the old rule. The message to workers: keep up with the Board’s decisions, make an educated guess as to what is protected and hope that the Board’s General Counsel and the Board agree with you.



ogged 01.11.06 at 12:15 am

Then Eugene Volokh says it is a problem.


ogged 01.11.06 at 12:16 am

Sorry, here’s the link to Volokh.


cm 01.11.06 at 12:41 am

I’d think (or anyway hope) that “intent to annoy” is significantly harder to establish than threats or harassment. I further think that “annoy” in this context is meant in the sense of creating a genuine nuisance, not merely taking a position that somebody may find disagreeable.

On a weaker point, the wording suggests it has been written with a “push” model (e.g. email) in mind, not the “pull” model of websites. Linguists and lawyers can probably elaborate further. Whether juries will get the finer points though … (hey no annoyance of jury members here please …)


John Emerson 01.11.06 at 1:34 am

It annoys me to be criticized or disagreed with. In light of the present notice, any disagreement or criticism from an anonymous blogger can be assumed to be a dliberate, actionable attempt to annoy me.

I am nymous, however, so I can annoy anyone I want to!

So fuck you all!


saurabh 01.11.06 at 2:50 am

This is dumb. The actual bill text should be quoted in full. It’s quite clear that the subject is not merely “to annoy”, but to annoy in the context of harassment. Specifically, section 223 a (1) subparagraph A (ii) reads:
“initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person;”
In the loving arms of legal precedent, I’d say this leaves you quite safe from being persecuted merely for blogging. Tempest in a teacup.


John Quiggin 01.11.06 at 2:53 am

This came up in Australia (different laws, but many of the same issues) and was resolved in favour of anonymous political comment. We don’t have a First Amendment, though some recent High Court decisions have read an implied freedom of political speech into the Constitution.


abb1 01.11.06 at 3:17 am

So fuck you all!” clearly is indecent with with intent to annoy.


jonst 01.11.06 at 5:13 am

Maybe some one with time on his or her hands will do a research project to ascertain if Kerr has reacted negatively to ANY expansion of govt power. I believe a cursory examination will demonstrate he has not come down against any expansion of govt power. His position, at all times, on all points, seems to be ‘you are overreacting. All this means in reality is…” Fill in with soothing sentiments. And yet somehow govt power to monitor citizens actives, and to detain citizens, and interrogate them, in aggressive and unique ways, expands. The totality of the machine is evil. But each individual piece in seems innocuous.

But as I noted above…this is simply a cursory conclusion on my part. Wish I had the time for the in-depth study. Rap on, Prof Kerr, Rap on, as the frog swims in the slowly boiling pot of water.


Seth Finkelstein 01.11.06 at 8:26 am

For people who don’t realize how many pounds of salt (not grains, but industrial-strength truckloads) should be taken with anything written by Declan McCullagh, note he’s also the person who fabricated the Al Gore “invented the Internet” story.

His stock-in-trade as a pseudo-journalist is in part scaring people and crying wolf in ways which stoke net fear and paranoia. As *Orin Kerr* put it in the above:

“This is just the perfect blogosphere story, isn’t it? It combines threats to bloggers with government incompetence and Big Brother, all wrapped up and tied togther with a little bow. Unsurprisingly, a lot of bloggers are taking the bait.

Skeptical readers will be shocked, shocked to know that the truth is quite different. …”


Adam Kotsko 01.11.06 at 10:03 am

Would near-constant groundless personal attacks, including accusations of pedophilia, under multiple names, thwarting every attempt to block by using a proxy to spoof a different IP every ten minutes — would that count as unambiguously annoying behavior? (I’d like to think that behavior like that was already illegal before this particular law was passed. I’m pretty sure it’s directed solely at Atrios.)


Ann Bartow 01.11.06 at 10:14 am

Here is the text of Section 113 of the Violence Against Women and Department of Justice Reauthorization Act:


(a) In General- Paragraph (1) of section 223(h) of the Communications Act of 1934 (47 U.S.C. 223(h)(1)) is amended–
(1) in subparagraph (A), by striking `and’ at the end;
(2) in subparagraph (B), by striking the period at the end and inserting `; and’; and
(3) by adding at the end the following new subparagraph:
(C) in the case of subparagraph (C) of subsection (a)(1), includes 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 (as such term is defined in section 1104 of the Internet Tax Freedom Act (47 U.S.C. 151 note)).’.

(b) Rule of Construction- This section and the amendment made by this section may not be construed to affect the meaning given the term `telecommunications device’ in section 223(h)(1) of the Communications Act of 1934, as in effect before the date of the enactment of this section. [emphasis added].

Legislative history also will support the position that the amendment was pitched at “telecommunicatiosn devices” like VOIP. See e.g. this:


John Emerson 01.11.06 at 10:33 am

Adam, you find the Troll of Sorrow annoying? ANd not delightful? What a surprise!

Abb1, as a nymous blogger I can annoy people freely and with complete impunity.


Real John Emerson 01.11.06 at 11:08 am

How do I know you’re ‘nymous’?


John Emerson 01.11.06 at 11:33 am

Go for it, Meyers! But you have to post your true name.

we’re entering the golden age of nymous internet annoyance.


jet 01.11.06 at 12:49 pm

Since only a small percentage of users on the internet are truly anonymous, does this really apply to anyone? CT’s webserver logs could identify quite a few people here, and the router logs of your ISP could identify most of the rest.

I’m thinking this only applies to spam and people behind proxies in uncooperative countries.


Ed Darrell 01.11.06 at 1:22 pm

One thing is pretty clear: No one in Congress is in charge of what’s going on. Leadership, under the Republicans, is almost completely absent.

Wouldn’t you love to have heard hearings on such a provision?


_Jon 01.11.06 at 3:40 pm

The draft version of the bill quoted by Declan McCullagh is very old. He appears to be very wrong.
Michele writes a good summary.

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