Eugene Volokh's Blog, page 2548
May 24, 2012
Flashing Headlights to Warn Oncoming Drivers of a Speed Trap = Constitutionally Protected Speech
So held a Florida trial court judge, and he wasn’t the first — I think I’ve seen this in a few cases, but the one for which I have a citation is State v. Walker, No. I-9507-03625 (Williamson Cty. (Tenn.) Cir. Ct. Nov. 13, 2003)
Whether this is the right answer is not clear. It’s a special case of warnings to hide one’s illegal conduct because the police are coming — though here done by a stranger rather than by a lookout who’s in league with the criminals — and that in turn is a special case of what I call Crime-Facilitating Speech (see 57 Stan. L. Rev. 1095 (2005)), which is to say speech that conveys information that makes it easier for people to commit crimes or to get away with crimes. The Supreme Court has never squarely confronted this question.
When I’ve blogged about this in the past, some people have argued that flashing headlights should be protected because it’s encouraging legal behavior (slowing down) rather than illegal behavior, but I don’t think that can dispose of the issue: Many lookouts do the same, e.g., when a lookout warns would-be robbers to abandon their plans because a police car is driving by.
For an interesting similar question though one that doesn’t involve encouraging people to temporarily act legally), this story:
An advocate for immigrant and civil rights has started using text messages to warn residents about crime sweeps by a high-profile Arizona sheriff.Lydia Guzman, director of the nonprofit immigrant advocacy group Respect/Respeto, is the trunk of a sophisticated texting tree designed to alert thousands of people within minutes to the details of the sweeps, which critics contend are an excuse to round up illegal immigrants.
Guzman said the messages are part of an effort to protect Latinos and others from becoming victims of racial profiling by sheriff’s deputies….
What’s the First-Amendment-relevant difference, if there is one, between this and a lookout who alerts criminals when the police are coming? (Assume that the lookout isn’t getting a share of the loot, but is just helping his friends avoid getting locked up.) Should it matter, as one expert who’s mentioned in the article suggests, whether Ms. Guzman’s real goal is preventing lawful arrest of illegal immigrants (as opposed to preventing racial profiling, assuming such profiling is unlawful)? I think there may indeed be a difference between such revelation of facts to the public and individualized communications to a small group of criminals, and I don’t think it should turn on jury inferences about the speaker’s true purpose; my article discusses the question at length. But in any event it’s helpful to think about what the difference might be.
Rape Conviction Overturned When Supposed Victim Recanted — What About the Civil Damages Award?
The Los Angeles Times reports:
A Los Angeles County Superior Court judge has reversed the 2002 rape and kidnapping conviction of former Long Beach Poly football standout Brian Banks.
Banks, now 26, was wrongly convicted of the charges based on the testimony of Wanetta Gibson, an acquaintance.
Gibson testified that Banks raped her on the Poly campus. Banks said the encounter was consensual.
Rather than face a prison term of from 41 years to life, Banks accepted a plea deal that [led to his spending 5 years in prison].
Gibson sued the Long Beach Unified School District, claiming the Poly campus was not a safe environment, and won a $1.5-million settlement.
Nearly a decade later, Gibson contacted Banks on Facebook, met with him and admitted that she had fabricated the story.
The AP account adds a twist:
According to documents in the case, she met with Banks and said she had lied; there had been was no kidnap and no rape and she offered to help him clear his record.
But she subsequently refused to repeat the story to prosecutors because she feared she would have to return a $1.5 million payment from a civil suit brought by her mother against Long Beach schools.
She was quoted as telling Banks: “I will go through with helping you but it’s like at the same time all that money they gave us, I mean gave me, I don’t want to have to pay it back.”
It’s not clear whether she ultimately did repeat the story to prosecutors, or whether the prosecutors got her admission some other way. In any event, I assume that — absent some statute of limitations barrier (a subject on which I’m not knowledgeable) — what’s left of the $1.5 million will indeed have to be paid back. (Thanks to Robert Dittmer for the pointer.)
This, by the way, raises again a difficult problem with he-said-she-said rape cases, where civil liability is available. I suspect that in a typical such case, one factor that cuts in the prosecution’s favor is “Why would she lie?” A defendant has ample reason to lie by saying that nonconsensual sex was actually consensual — his liberty is at stake. But a complainant in many cases has much less reason to lie by saying that consensual sex was actually nonconsensual; sure, in some situations there might be possible motivations for lying, but they are usually not nearly as strong as the defendant’s motivation.
Yet when the complainant can get millions of dollars in damages, either from a rich defendant on an intentional tort theory, or from some other entity — such as an employer or a school district — that could be held liable on a negligence theory, the complainant now has lots of reason to lie. Of course, this by no means that such a complainant will be lying, just as the defendant’s incentive to lie doesn’t mean that all defendants who testify that they’re innocent are lying. But it does, I think, make the defense’s case stronger and the prosecution’s case weaker.
The jurors don’t know for sure who’s telling the truth. But once they know that the complainant has a potential motive to lie, they’ll be less inclined to believe her — and at least to conclude that there’s a reasonable doubt about whether she’s telling the truth. If you were a juror and the evidence against the defendant besides the complainant’s testimony was weak, wouldn’t you be influenced by evidence that the complainant has a possible financial motive for making up the charges?
What to do about this, though, is not clear. Even if negligence liability against employers, school districts, and others for crimes by their employees or on their property is cut back — some people have argued that it should be — a victim could still sue a rich defendant, or even an upper-middle-class defendant who has some assets that could be seized. If someone physically attacks you, you’re entitled to get compensation from him. But this very possibility makes it harder to criminally prosecute rapists. I don’t know of a good solution to the problem, absent perfect lie detection technology or pervasive recordi
EU competition bureau creating yet another intellectual property regime?
I was struck by the EU competition bureau’s recent threat to punish Google because of “the way Google copies content from competing vertical search services and uses it in its own offerings.” (Vertical search services are specialized search engines like Yelp and Kayak that help people find local restaurants or cheap flights and rental cars.)
In his public statement, the EU’s vice president for competition policy, Joaquin Almunia, seemed to say that Google is abusing a dominant position in search by “copying original material from the websites of its competitors such as user reviews and using that material on its own sites without their prior authorisation.” This is bad, says the EU, because:
”In this way they are appropriating the benefits of the investments of competitors. We are worried that this could reduce competitors’ incentives to invest in the creation of original content for the benefit of internet users. This practice may impact for instance travel sites or sites providing restaurant guides.”
This is odd language for a competition case, but quite familiar in an intellectual property context. The United States and the Europeans have a demanding copyright regime precisely to prevent companies from “appropriating the benefits” of other people’s content; and this regime has been expanded many times in living memory to better protect the investments of copyright owners. Indeed, going the U.S. one better, the EU has adopted an additional set of intellectual property protections for compilers of databases; these protections cover uncopyrightable compilations, like phone books.
Again, the point of both laws is to create “incentives to invest in the creation of original content” — and to balance those incentives against society’s interest in the free exchange of information.
If Google had violated either regime, presumably it would be in court or under investigation for doing so. (Marvin Ammori has a recent post explaining why they aren’t.)
Instead,the European Union’s competition bureau seems to be saying that the balance struck by the EU in its two highly IP-friendly regimes isn’t, well, IP-friendly enough.
Vertical search providers apparently need a kind of super-copyright. Indeed, reading the EU’s press release, it appears that vertical search providers need a super-copyright not only in their own work but in their users’ comments as well.
That may or may not be good competition law, but it sure looks like overkill when viewed through an intellectual property lens.
CAVEAT LECTOR: My law firm and I have done work for Google, though not in connection with competition or EU issues.
Injunctions Against Speech That “Ha[s] a Substantial Adverse Effect … on … [a Person's] Privacy”
I’m writing an article that indirectly touches on this question, and I thought I’d ask our readers for their take on it. I’d particularly like to hear from people who are knowledgeable about privacy law, and who (unlike me) support information privacy speech restrictions, such as the disclosure-of-private-facts tort.
Minnesota has an interesting statute that allows courts to enjoin speech that “ha[s] a substantial adverse effect … on the … privacy” of a person, Minn. Stat. Ann. § 609.748. Five months ago it was used to issue an injunction banning online speech by a person about his ex-girlfriend, Johnson v. Arlotta (2011), but it has been used before as well.
I’m curious what people think of this — again, especially people who generally support the disclosure tort — given the lack of a statutory or judicial definition of what constitutes “privacy” for purposes of the statute, and the criminal penalties for violating the order. How should the statute be read, and is it constitutional? Should “privacy” be read as tortious invasion of privacy, with all the common-law twists on that (e.g., the exception for newsworthy speech, and the requirement that the speech be said to the public and not just as gossip within a circle of friends)? Is that sufficiently clear for an order that can be enforced through criminal penalties? Also, are temporary restraining orders under the statute — which may be issued ex parte — unconstitutional prior restraints?
Here’s the relevant excerpt:
(a) “Harassment” includes:
(1) a single incident of physical or sexual assault or repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target;
(2) targeted residential picketing; and
(3) a pattern of attending public events after being notified that the actor’s presence at the event is harassing to another….
(c) “Targeted residential picketing” includes the following acts when committed on more than one occasion:
(1) marching, standing, or patrolling by one or more persons directed solely at a particular residential building in a manner that adversely affects the safety, security, or privacy of an occupant of the building ….
Subd. 4. Temporary restraining order. (a) The court may issue a temporary restraining order ordering the respondent to cease or avoid the harassment of another person or to have no contact with that person if the petitioner files a petition in compliance with subdivision 3 and if the court finds reasonable grounds to believe that the respondent has engaged in harassment. When a petition alleges harassment as defined by subdivision 1, paragraph (a), clause (1), the petition must further allege an immediate and present danger of harassment before the court may issue a temporary restraining order under this section….
(b) Notice need not be given to the respondent before the court issues a temporary restraining order under this subdivision….
(c) The temporary restraining order is in effect until a hearing is held on the issuance of a restraining order under subdivision 5. The court shall hold the hearing on the issuance of a restraining order if the petitioner requests a hearing. The hearing may be continued by the court upon a showing that the respondent has not been served with a copy of the temporary restraining order despite the exercise of due diligence or if service is made by published notice under subdivision 3 and the petitioner files the affidavit required under that subdivision.
(d) If the temporary restraining order has been issued and the respondent requests a hearing, the hearing shall be scheduled by the court upon receipt of the respondent’s request. Service of the notice of hearing must be made upon the petitioner not less than five days prior to the hearing. The court shall serve the notice of the hearing upon the petitioner by mail in the manner provided in the Rules of Civil Procedure for pleadings subsequent to a complaint and motions and shall also mail notice of the date and time of the hearing to the respondent. In the event that service cannot be completed in time to give the respondent or petitioner the minimum notice required under this subdivision, the court may set a new hearing date….
Subd. 5. Restraining order. (a) The court may grant a restraining order ordering the respondent to cease or avoid the harassment of another person or to have no contact with that person if all of the following occur:
(1) the petitioner has filed a petition under subdivision 3 [and the order has been served on the respondent];
(2) the sheriff has served respondent with a copy of the temporary restraining order obtained under subdivision 4, and with notice of the right to request a hearing, or service has been made by publication under subdivision 3, paragraph (b); and
(3) the court finds at the hearing that there are reasonable grounds to believe that the respondent has engaged in harassment.
A restraining order may be issued only against the respondent named in the petition; except that if the respondent is an organization, the order may be issued against and apply to all of the members of the organization. If the court finds that the petitioner has had two or more previous restraining orders in effect against the same respondent or the respondent has violated a prior or existing restraining order on two or more occasions, relief granted by the restraining order may be for a period of up to 50 years. In all other cases, relief granted by the restraining order must be for a fixed period of not more than two years. When a referee presides at the hearing on the petition, the restraining order becomes effective upon the referee’s signature….
(c) If the court orders relief for a period of up to 50 years under paragraph (a), the respondent named in the restraining order may request to have the restraining order vacated or modified if the order has been in effect for at least five years and the respondent has not violated the order….At the hearing, the respondent named in the restraining order has the burden of proving by a preponderance of the evidence that there has been a material change in circumstances and that the reasons upon which the court relied in granting the restraining order no longer apply and are unlikely to occur. If the court finds that the respondent named in the restraining order has met the burden of proof, the court may vacate or modify the order. If the court finds that the respondent named in the restraining order has not met the burden of proof, the court shall deny the request and no request may be made to vacate or modify the restraining order until five years have elapsed from the date of denial. An order vacated or modified under this paragraph must be personally served on the petitioner named in the restraining order.
Subd. 6…. (b) Except as otherwise provided in paragraphs (c) and (d), when a temporary restraining order or a restraining order is granted under this section and the respondent knows of the order, violation of the order is a misdemeanor.
(c) A person is guilty of a gross misdemeanor who knowingly violates the order within ten years of a previous qualified domestic violence-related offense conviction or adjudication of delinquency.
(d) A person is guilty of a felony and may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if the person knowingly violates the order:
(1) within ten years of the first of two or more previous qualified domestic violence-related offense convictions or adjudications of delinquency;
(2) because of the victim’s or another’s actual or perceived race, color, religion, sex, sexual orientation, disability as defined in section 363A.03, age, or national origin;
(3) by falsely impersonating another;
(4) while possessing a dangerous weapon;
(5) with an intent to influence or otherwise tamper with a juror or a judicial proceeding or with intent to retaliate against a judicial officer, as defined in section 609.415, or a prosecutor, defense attorney, or officer of the court, because of that person’s performance of official duties in connection with a judicial proceeding; or
(6) against a victim under the age of 18, if the respondent is more than 36 months older than the victim….
Evolving International Law and Defining Offenses
The Fourth Circuit’s noteworthy decision in U.S. v. Dire is probably the first court of appeals decision in a piracy prosecution in nearly 200 years. The Fourth Circuit decision is important not only for some novel pending piracy cases, but for the Alien Tort Statute and broader questions about the interplay of U.S. and international law.
Two groups of defendants were tried by different federal district judges for attempted piracy – they had been caught before boarding the targeted vessel (which was unfortunately for the defendants, a U.S. warship). They were charged under 18 U.S.C § 1651 with “piracy as defined by the law of nations.” Both cases turned on whether that “definition” extends to attempts. One district court said yes, in the Dire case. Another district judge, in Said, said no. He looked the important 1820 piracy case of U.S. v. Smith, where the Supreme Court discussed the definition of piracy, and said everyone agreed it was “robbery on the high seas.” Since there was no robbery here – no piracy.
The Fourth Circuit yesterday reversed the dismissal. It held that the statute refers to “the law of nations” and that is understood to change over time, and the definition of piracy with it. We are not stuck with the 1820 definition of Smith; we look to the definition today. I don’t think the Court had to get into to this evolving-international law inquiry; Said was simply wrong to read Smith’s definition as excluding attempts. Some other noteworthy features:
The Define and Punish Clause. The Fourth Circuit endorsed my position, which had been very generously expounded by the district court, that the Constitution’s Define and Punish Clause only allows for universal jurisdiction over crimes that clearly have that status in international law. Slip Op. at 15-16. The court also suggested that Congress could not define international “conduct beyond the scope of the [international legal] definition” of offenses, as I argued in this forthcoming paper.
The standard for determining law of nations violations. Because Congress did not define attempts as part of the piracy prohibition, the Court looked to international law. The Law of the Sea Treaty – just as the Senate began to debate it again this week – was an important starting point, because it provides an easy-to-refer-to definition of piracy. By its terms, the Law of the Sea definition seems to include attempts. But the Fourth Circuit did not stop there, but continued to examine how courts in prior cases in other countries had ruled, including a famous Privy Council decision from the 1930s, and rulings of the Kenyan courts that have taken a leading role in prosecuting Somali pirates today, and an U.S. case.
Thus there has been actual state judicial practice establishing “attempts” as part of piracy; the Court didn’t just read this off a treaty that had never been applied in any case. Indeed, the decision could have gone the other way if the court was asked to be the first to “apply” such a theoretical norm: the opinion noted the “necessity of looking to… case law from other countries” to find that a putative norm exists. Slip op. at 19.
This has immediate relevance for the ATS, and Kiobel. (Indeed, the court borrowed freely from ATS decisions.) The existence of relevant judicial precedents is of course what is missing in several kinds of ATS claims, and especially for corporate liability.
Perhaps later I’ll say some more about how I think the decision may have been a bit too broad, or cavalier about Congress’s failure to “define.”
When is it Legitimate for Judges to Base Constitutional Decisions on their Perceived Legitimacy?
In a previous post, I argued that Supreme Court justices should not decide the individual mandate case based on the decision’s effect on their perceived “legitimacy.” Mark Tushnet asks, why not?
[W]hy exactly shouldn’t [Chief Justice John Roberts] worry if he believes that a Court decision — any one, really — will impair the Court’s legitimacy, in the sense that it would make it more difficult for the Court to hold public support for its (other) decisions? Or, believes that a decision will not be seen in retrospect as a wise one (the “verdict of history” point)? I’m not here endorsing the view that a decision striking down the Affordable Care Act would impair the Court’s legitimacy or be seen in retrospect as unwise, just wondering what’s wrong with taking those things into account when a justice is thinking about how best to interpret the Constitution. (Would Justice Henry Billings Brown have been wrong to think about them when trying to decide whether to pull his draft opinion in Plessy v. Ferguson in favor of Justice Harlan’s dissent?…)
This is a good question. The answer, in my view, is that the job of Supreme Court justices is to enforce the Constitution, not to make decisions that will have broad public support or be perceived as legitimate. Indeed, judicial enforcement of constitutional restrictions on government power is particularly crucial precisely in those cases where violations of those restrictions enjoy strong political support. To turn Mark’s question about Plessy around: Was Justice Brown’s decision justified by the fact that a contrary result might have been considered “illegitimate” by majority public opinion in the 1890s, and deeply resented by millions of white southerners? Was Korematsu justified because the internment of Japanese-Americans enjoyed overwhelming public support at the time, and a decision striking it down would have been widely denounced as an illegitimate intrusion on the wartime powers of the political branches?
This point applies to legitimacy in the eyes of future public opinion, as well as contemporary opinion. Future public opinion can easily be wrong, and can often support violations of the Constitution. For example, public opinion in 1900 was far less favorable to judicial enforcement of African-American rights than public opinion in the 1870s. If 1870s Supreme Court justices could accurately predict that trend, would they have been justified in cutting back on enforcement of the Fourteenth Amendment? It’s possible that future terrorist attacks will turn majority public opinion strongly against the Supreme Court’s Guantanamo decisions. If the justices believed that to be likely, should they have endorsed the Bush administration’s position in those cases in order to get on the “right side” of history?
Nonetheless, I think there are narrow circumstances where courts can legitimately take account of legitimacy. One such situation is when a correct constitutional decision would attract such wide opposition that it cannot be effectively enforced. If that is the case, courts are simply incapable of doing their normal duty, and perhaps they would be justified in not even trying. The case for making discretion the better part of valor in such situations might be especially strong if a the correct-but-unenforceable decision undermines the Court’s ability to enforce other parts of the Constitution in future cases. Perhaps a decision like Korematsu can be defended on that basis. A contrary ruling would almost certainly have been successfully disobeyed by the president and Congress. On the other hand, it’s possible that correct decisions in such cases would at least increase the chance that public opinion would change in the future, making it possible to eventually enforce the Constitution at a later date.
It’s also possible that a decision perceived as illegitimate is itself enforceable, but might still undermine enforcement of future decisions by compromising the Court’s reputation. If this is the case, the justices will have to consider whether the future damage to the Constitution outweighs the constitutional principles that would be sacrificed by reaching the wrong result in the present case. I think this kind of scenario is unlikely. If people are willing to obey the initial “illegitimate” decision, it seems like they would also obey future decisions that are less controversial. But it’s not impossible.
In both of these scenarios, the reason why it is legitimate for the justices to consider legitimacy is because of its potential effect on their ability to do their proper job of enforcing the Constitution – not because legitimacy is valuable in itself.
I think it’s fairly clear that a decision striking down the mandate doesn’t even come close to falling into one of these two categories. As I discussed in my previous post, the vast majority of the public – including many Democrats – would actually support such a ruling.
One can reasonably argue that legitimacy should play a much larger role in judicial decision-making than I would support. Perhaps the justices should value legitimacy for its own sake. Alternatively, perhaps widespread and deeply felt public opposition to a given ruling should lead the justices to doubt the validity of its reasoning. However, anyone who believes that the Court should uphold the mandate because of the perceived illegitimacy of a contrary ruling must also oppose other decisions that are viewed as illegitimate by a larger proportion of the population. These include cases such as Roe v. Wade, Kelo v. City of New London, the school prayer and religious display decisions, the Guantanamo cases, several of the Warren Court’s defendants’ rights rulings, the flag burning cases, and other decisions supported by liberal constitutional theorists. At the time they were decided – and in some cases even today – each of these rulings were perceived as illegitimate by a larger proportion of the public than is likely to oppose a decision striking down the mandate. Some of them also attracted vociferous criticism by parts of the legal elite.
In my view, many of the above decisions were actually correct. That’s because I do not think that perceived legitimacy should be an important factor in Supreme Court decision-making, except in very rare instances. But if you believe that legitimacy should be a major factor when it comes to the mandate, that principle cannot be limited to the present case. You have to apply it consistently across the board. Doing so would call into question a wide range of Supreme Court decisions.
UPDATE: I have slightly edited this post to fix one or two typos.
May 23, 2012
Astronomical Vegetable
What vegetable’s name is etymologically connected — distantly, to be sure — to an astronomical concept (not just the name of a particular object, such as the name of a planet or a star)? There might well be many answers, but I have one in mind.
Crime to Call a Juror to Make Her Feel Sorry About Her Vote?
From State v. Baker (Iowa 2004):
The parties stipulated to the facts underlying this appeal. Baker was charged with violating section 720.4 based on a telephone conversation Baker had with Debra Krause, who had recently served as a juror in a criminal proceeding against one Greg Schoo, a friend of Baker. On May 8, 2003, the jury convicted Schoo of first-degree burglary, which carries a mandatory twenty-five-year prison sentence.
The day after the verdict was rendered Krause received a phone call that began with the caller’s question, “Is this Deb?” Because Krause and Baker had previously worked together, Krause recognized Baker’s voice. In addition, Krause’s caller ID confirmed the call was made from Baker’s telephone. When Krause responded that yes, she was Deb, the caller stated, “This is Rose.” The caller then asked Krause “if [she] knew that [she] gave him 25 years.” Krause understood Baker was referring to Schoo. Krause told Baker she did not know what sentence Schoo had received. Baker then stated: “Well, I just thought you should know you gave him 25 years,” and hung up the phone.
Krause notified law enforcement of Baker’s call. Although Krause did not feel threatened by Baker, she was bothered and upset by the call and Baker’s tone of voice. According to Krause, she “was in disbelief that [Baker] had called [her] to say that.” Krause said she “did not beg and plead to be one of the jurors,” and would rather not have been picked, but it was “something [she] had to do — whether [she] wanted to or not!”
Baker was charged with jury tampering, under a statute that provides, “A person who … in retaliation for anything lawfully done by any witness or juror in any case, harasses such witness or juror, commits an aggravated misdemeanor.” “Harassment” is in turn defined as, “with intent to intimidate, annoy, or alarm another person, … [c]ommunicat[ing] with another by telephone, telegraph, writing, or via electronic communication without legitimate purpose, and in a manner likely to cause the other person annoyance or harm.” The court of appeals concluded that the prosecution could go forward:
Here there was clearly a jury question under the stipulated facts whether Baker contacted Krause to gather factual information about Krause’s knowledge and views of the sentencing system, or whether the contact was intended to intimidate or alarm Krause in retaliation for her role in convicting Schoo.
Rosemary Baker was ultimately convicted on remand.
The court of appeals decision, it seems to me, is wrong and quite dangerous. The court seems to be suggesting that the impermissible purpose might be a purpose to make Krause feel frightened (“intimidate[d] or alarm[ed]“) — but if the stipulated facts are sufficient to permit a prosecution based on this theory, then no-one is safe expressing to a juror that they thought the juror helped work an injustice, or for that matter expressing to other people that they thought those people did something bad. There is always the danger that a hostile prosecutor, judge, and jury will infer a bad purpose on your part, even when there were no threatening words, the listener makes clear that she didn’t feel threatened, and the listener knows you and has no reason from past contact to fear you. Whatever the scope of the “true threats” exception to the First Amendment, I doubt it can be broad enough to cover speech such as this.
Of course, it’s plausible, given the stipulated facts, that Baker might have wanted Krause to feel sorry or unhappy about what she helped do. But I doubt such a desire can strip such speech of constitutional protection, and in any event it seems to me a “legitimate purpose” for purposes of the statute (or else any call to someone to tell them that they did something bad, and to make them feel bad about it, would potentially be criminal “harassment”). At the very least, the phrase “without legitimate purpose” doesn’t sufficiently inform people that such a purpose is impermissible (and is, I think, unconstitutionally vague).
More broadly, I’m quite troubled by such laws that prohibit a considerable amount of conduct, much of which would be constitutionally protected, and then try to avoid this overbreadth by limiting the prohibition to conduct that lacks a “legitimate purpose.” Who can know what purposes the legal system will eventually find “legitimate”? If you want to punish threats, punish threats. If you want to punish behavior that has the purpose of assisting some crime, punish that. But don’t just leave to future prosecutors, judges, and juries the decision about what’s “legitimate” and what isn’t — and thus leave citizens uncertain about what’s allowed and what’s not.
One of Kipling’s Grimmer Poems
I don’t know why I thought of it today — I like to think I’m not that old, but come to think of it Kipling wasn’t that old when he wrote it either. Maybe he was thinking about someone else in particular, but I’m not; it just came to my mind. In any case, it’s The Old Men:
This is our lot if we live so long and labour unto the end –
Then we outlive the impatient years and the much too patient friend:
And because we know we have breath in our mouth and think we have thought in our head,
We shall assume that we are alive, whereas we are really dead.
We shall not acknowledge that old stars fade or stronger planets arise
(That the sere bush buds or the desert blooms or the ancient well-head dries),
Or any new compass wherewith new men adventure ‘neath new skies.
We shall lift up the ropes that constrained our youth, to bind on our children’s hands;
We shall call to the waters below the bridges to return and to replenish our lands;
We shall harness (Death’s own pale horses) and scholarly plough the sands.
We shall lie down in the eye of the sun for lack of a light on our way –
We shall rise up when the day is done and chirrup, “Behold, it is day!”
We shall abide till the battle is won ere we amble into the fray.
We shall peck out and discuss and dissect, and evert and extrude to our mind,
The flaccid tissues of long-dead issues offensive to God and mankind –
(Precisely like vultures over an ox that the army left behind).
We shall make walk preposterous ghosts of the glories we once created –
Immodestly smearing from muddled palettes amazing pigments mismated –
And our friend will weep when we ask them with boasts if our natural force be abated.
The Lamp of our Youth will be utterly out, but we shall subsist on the smell of it;
And whatever we do, we shall fold our hands and suck our gums and think well of it.
Yes, we shall be perfectly pleased with our work, and that is the Perfectest Hell of it!
This is our lot if we live so long and listen to those who love us –
That we are shunned by the people about and shamed by the Powers above us.
Wherefore be free of your harness betimes; but, being free be assured,
That he who hath not endured to the death, from his birth he hath never endured!
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