By Eugene Volokh
N.H. Stat. § 644–4 makes it a misdemeanor to, among other things, “[m]ake repeated communications at extremely inconvenient hours or in offensively coarse language with a purpose to annoy or alarm another.”
In re Alex C. (N.H. Sup. Ct. Nov. 30) upheld the conviction of a minor for sending 20 instant messages in the span of an hour to a friend’s mother, apparently using the terms “f***ing idiots,” “b***h,” “fats**t,” “c**t,” and “fa***t.” (The mother was using the daughter’s account at the time, because the daughter had run away from home and the mother was hoping “one of her daughter’s friends might respond with information that would help locate her daughter.”) The defendant’s legal claim was that conversations within one IM conversation didn’t count as “repeated,” but the New Hampshire Supreme Court rejected that.
The statute, though, would reach considerably beyond situations such as this one. First, it bans “repeated communications,” which might cover not only barrages such as the twenty messages here but even just a couple of communications. The opinion defines repeated as “renewed, frequent, or constant imparting of a message by any method of transmission,” and “constant” would seem to suggest a stream of communications; but “renewed” is given as an option, and the literal meaning of “repeated” does seem to cover even a small number of communications.
Second, it isn’t limited to personal insults. “Offensively coarse language” about someone other than the recipient would also qualify.
Third, it includes statements meant to do many things, including to annoy — for instance, to inform people of some alleged misbehavior on someone’s part, and at the same time annoy the misbehaving person. The statute requires only “a purpose to annoy,” not a sole purpose to annoy (and of course nearly all communication has at least some purpose other than to annoy, such as to express oneself, or make the subject feel guilty and not merely annoyed).
Fourth, when the statute is applied beyond unwanted telephone calls, it can’t be defended on grounds specific to telephone calls, such as that the calls can wake someone up during the night (that, I take it, is the justification for the “at extremely inconvenient hours” clause).
Fifth, and most important in my view, it isn’t limited to “person-to-person messages.” The term “communicates” is later defined as “to impart a message by any method of transmission, including but not limited to telephoning or personally delivering or sending or having delivered any information or material by written or printed note or letter, package, mail, courier service or electronic transmission, including electronic transmissions generated or communicated via a computer.” “[A]ny method of transmission” might include a communication said to many people in a chat room, or posted as a blog post (or a comment), or for that matter written in a newspaper (though presumably not a mainstream newspaper, which generally doesn’t include “offensively coarse language”). See, e.g., State v. Ellison, 178 Ohio App. 3d 734 (2008) (reading a similarly worded statute to cover postings on one’s own MySpace page, though reversing the conviction because in that instance the “purpose to harass” was not shown); Welytok v. Ziolkowski, 752 N.W.2d 359 (Wisc. App. 2008) (reading a similar definition of “harassment” to cover e-mails about a person, and not just to the person).
Thus, the statute covers, among other things,
1) Several blog posts using “offensively coarse language” about a local politician, businessman, activist, professor, and so on said with a “purpose to annoy” the subject or his friends.
2) Several blog posts or alternative newspaper articles using “offensively coarse language” about a race, religion, or political movement said with a “purpose to annoy” members of the group.
3) Several facebook posts or chat room messages using “offensively coarse language” to condemn an ex-lover who has, say, cheated on the author (or otherwise allegedly mistreated the author), said with a “purpose to annoy” the ex-lover.
4) Several facebook posts using “offensively coarse language” to condemn some service provider — lawyer, doctor, plumber, or what have you — for that provider’s alleged mistreatment or poor service, said with a “purpose to annoy” the ex-lover.
If the statute were limited to one-to-one messages sent to a particular person, it would be less troublesome (see Parts II.E and II.F of this article). As I’ve argued before, restrictions on one-to-many speech that offends some listeners interfere more with public debate than do restrictions on one-to-one speech that offends the one listener (or one-to-few speech that offends all the listeners); the latter speech is likely to only offend, not persuade or enlighten, while the former may well do both. But even if the law were limited to one-to-one speech, I think it would pose substantial vagueness problems, stemming from the uncertainty of the term “offensively coarse.” A statute giving recipients of such one-to-one messages the power to order the sender to stop (with exceptions for communications to government officials or candidates, and perhaps to businesses) should avoid those problems; the Supreme Court’s Rowan v. U.S. Post Office Dep’t (1970) decision suggests such a statute is constitutional.
As it happens, the New Hampshire Supreme Court struck down such a stop-contacting-me law, as unconstitutionally overbroad, without mentioning Rowan; I think that might have been a mistake. But if such a law (which was another portion of the harassment statute I discuss here) is overbroad, I would think that the ban on repeated “offensively coarse” communications would be, too, especially when it covers “any method of transmission,” including ones that reach many people and not just the one offended person. The defendant in In re Alex C. didn’t seem to have raised the overbreadth objection (at least judging from the New Hampshire Supreme Court’s opinion), so perhaps the court was right in not dealing with that objection in this particular case. But the statute remains, in my view, unconstitutionally overbroad, and a threat to First-Amendment-protected speech.