There's been much outrage in the blogosphere about Declan McCullagh's story at news.com claiming that if you leave an anonymous comment on a blog (for example) then you could be done for "annoying" them under the Violence Against Women and Department of Justice Reauthorization Act; penalties include up to two years in prison.
But never fear. It's a storm in a teacup. As Eugene Volokh (who's a lawyer) Orin Kerr , an associate professor of law at George Washington University, explains in a blog post, it's the classic storm in the blogosphere teacup.
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.
What's different? The US First Amendment ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.")
It turns out that the statute can only be used when prohibiting the speech would not violate the First Amendment. If speech is protected by the First Amendment, the statute is unconstitutional as applied and the indictment must be dismissed.
And guess what? "Annoying" people, or even being very rude to them in comments or emails, is legitimate First Amendment speech in the US, anonymous or not. (Of course in the UK we expect people to just behave, because that's, you know, British.)
Eugene Volokh, the law professor at GWU, has a slightly different take; disentangling it is pretty hard, but it's clear that the First Amendment is still the iceberg that would sink all but the most titanic - and perhaps even all - of the cases that might be brought under this case re speech on websites. Even (because we had a brief spurt of hope) comment spam - non-deceptive commercial speech is still covered by the 1st A. (Doesn't mean we have to like it, though.)
So, collapse of stout story. Yes? Well, we can but hope that the blogosphere will be self-correcting. It's all right, we'll wait...
