The right to be left alone, the right to silence, and to be free from harassment are rights often cited as essential to the First Amendment, but are being put to the test in the communications age due to the abusive potential of modern electronic communication. Free speech and anti-harassment laws are being considered by state and federal courts.
The quest for criminal accountability that the public often seeks after the courts look at the type of speech that may fall outside the First Amendment protection. The U.S. Supreme Court has consistently listed “fighting words” among those categories.
The ability of bullies to harass their victims via the interest under the cloak of anonymity makes the crime of harassment easier to carry out. This includes threats to reveal embarrassing personal information to the intended victim’s friends, family, or co-workers.
Courts have long held that an important facet of the First Amendment is the right to speak anonymously, which goes back to the days of Benjamin Franklin who as a young man wrote under anonymous names. Forced identification of the source of speech would tend to restrict freedom to distribute information and thereby freedom of information.
The US Supreme Court has historically protected speech where the speaker proposes an unpopular message such as political speech. In today’s political climate, political speech is all the more likely to disturb or upset some listeners.
Harassment in the first degree is if a person “without good cause, engages in any act with the purpose to cause emotional distress to another person, and such act does cause such person to suffer emotional distress”, a class E felony.
Thus, the courts are stating that harassment laws cannot be allowed to inhibit free speech and whatever laws are enacted must be tailored to target conduct, not speech.