OK, Now They’ve Got My Attention!

My Botticelli 3

Awhile back (no, I can’t find the original post), I wrote of a Brit who was questioned by UK authorities for having written an email with intemperate language. I wrote at the time I thought such was unlikely in the U.S. Geez, I hate having to eat my words, even a little bit!

Now comes poor Bruce Shore of Philadelphia, PA. According to The Huffington Post, Shore was incensed

When Sen. Jim Bunning complained on the Senate floor in February that he’d missed the Kentucky-South Carolina basketball game because of a debate on unemployment benefits — a debate the Kentucky Republican himself prevented from proceeding to a vote ….


Instead of just being angry, Shore took action: He sent several emails to Bunning staffers, blasting the senator for blocking the benefits.

“ARE you’all insane,” said part of one letter Shore sent on Feb. 26 (which he shared with HuffPost). “NO checks equal no food for me. DO YOU GET IT??”

In that letter he signed off as “Brad Shore” from Louisville.

Turns out that in disguising his identity, Shore allegedly committed a federal crime, subject to up to two years imprisonment. 47 U.S.C. ยง223, subsection (a)(1)(C): any person who

makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications.

The key word here is “annoy,” which has never heretofore been grounds for denying First Amendment protection. “Abuse, threaten or harass,” yes — those are not protected speech (although abuse is open to some interpretation). So, assuming Shore did not threaten, etc., but his emails were merely annoying to the good Senator, we may have the making of a legitimate First Amendment defense here. (Not to mention an instance of prosecutorial overreach.)

The statute later makes it very clear that (a)(1)(C) applies to emails or — arguably — even comments posted on blogs or other places. “‘Half of the anonymous Internet comments would’ be illegal according to the statute used against Shore, said [prominent civil liberties lawyer Harvey] Silverglate. Not everyone agrees with this interpretation, however, which is apparent if you read the lead cites obtained by running this Google search. Two important legal analyses are in The Volokh Conspiracy, a somewhat positive analysis here, followed by a pessimistic conclusion by Eugene Volokh himself here.

For those who elect not to follow the foregoing discussion links, here’s the nub: whether this statute section (essentially criminalizing offensive anonymous Internet speech) violates the First Amendment has not yet been passed on by U.S. appellate courts. Thus, you risk at least a subpoena, and possibly indictment, if

  • You post an anonymous comment anywhere online that some person somewhere thinks has been posted to “annoy, abuse, threaten, or harass” himself.
  • You create a blog under a pseudonym and write something there that some person thinks was written to “annoy, abuse, threaten, or harass” himself. (Does anyone remember the famous writings of John Locke and Demosthenes in Orson Scott Card’s Ender’s Game?)

Not to mention sending anonymous nasty letters to your Congresscritter.

Personally, I rarely penalize anonymous commenters by not posting their contributions. Not never, but rarely. But I’ve certainly witnessed on other blogs or other venues where the anonymous person is writing as a coward, afraid to let sunshine illuminate the author behind hateful or stupid words. It’s a good thing authorities have neither the time nor the resources to track these people back via their IP address information — and bad luck for Mr. Shore that the Senator’s staff and Capitol authorities apparently do.

So, you would-be anonymous commenters, just remember that if you annoy me, I can get the feds to after you!

And Bruce Shore? He’s been indicted. He’s due tomorrow in federal court in Kentucky to plead on a charge of “felony email harassment.”


Good for Her Department

Word via The NY Times that SNL’s Tina Fey has been awarded the Kennedy Center’s 2010 Mark Twain Prize for American Humor. Who can forget her satiric impersonations of Sarah Palin.


A Book to Read Department

The attorney quoted above, Harvey Silverglate, is a prominent civil liberties lawyer and the author of “Three Felonies a Day: How the Feds Target the Innocent.” His book’s title alludes to his estimate that the average person unintentionally commits three felonies a day, which permits federal or state prosecutors to bring charges for matters most people would not even think are crimes.

Sounds like a book I should read.


The Child Pornography Triangle Department

Child pornography is typically described as having three actors: the first is the pornographer himself (usually a “himself”); the second is the victim, the child; the third is the consumer. The first two are indispensable to the crime; the last is not, but owning and viewing child pornography is a crime everywhere in the U.S. (and most if not all of the world).

Awhile back a couple comments suggested that it is wrong for the government to restrict what a person views — including child pornography. This argument is at its base one of civil liberties/civil rights, and is an extension of the argument that released James Joyce’s Ulysses from censorship hell and has freed up garden variety pornography to be the Internet sensation that it is: the government has no business intruding on what I choose to view in the privacy of my own home.

An alternative legal argument has gained currency in the U.S.: because the victim continues to suffer so long as any copy of an image showing the abuse perpetrated on him (or her) exists anywhere, the crime continues so long as those images exist. Because damage to the victim continues, the victim should be able not only to
(1) rest assured that the government will both seek out and prosecute owners of the images and destroy (or at least remove from public view) the images themselves; and (2) pursue those owning the images for monetary damages for his/her injury.

I mention that because a prominent local attorney, known previously for pursuing abusing priests and winning damages from the Catholic church, has now undertaken to track down and sue child porn downloaders. According to the AP:

Jeffrey Anderson said the goal of his latest lawsuit, filed in U.S. District Court in Minnesota, is to prevent the dissemination of child pornography by exposing perpetrators and making them pay.

“If you choose to download images of child pornography, we will track you,” Anderson said. “We will find you. We will expose you. And we will sue you.”

The lawsuit was filed on behalf of a Minnesota boy who was 9 when images of him were taken. The defendants include one man, Gregg Alan Larsen, 49, of Minneapolis [the pornographer], and 100 unnamed “downloaders” who received and viewed images of the boy. Once those people’s identities are known, they will be named in the lawsuit, Anderson said.

The case is based on a federal law that was enhanced in 2006 to increase the minimum civil penalty for anyone who downloads child pornography to $150,000. “Masha’s Law,” named after a girl adopted from Russia at age 5 by a man who sexually abused her and recorded it, does not require that a defendant be convicted of a crime.


New model Mulberry in a style consciously reminiscent of an Old Master.

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