Criminalizing Comments? Bill Would Make "False and Defamatory" Internet Postings a Crime

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Elected officials take a lot of abuse from anonymous commenters who attack them on blogs and news websites. But should "cyberbullying" politicians be a crime?

It should if comments cross the line from critical into "false and defamatory," says Michael Obuchowski (pictured in this old file photo). Obuchowski, a Rockingham Democrat, recently resigned from the Legislature to become commissioner of the Department of Buildings and  General Services. Before he left, Obie proposed numerous bills, including H.16, "An act relating to harassment and disturbing the peace through false and defamatory Internet website postings."

Cosponsored by state Rep. Carolyn Partridge (D-Rockingham), the bill would expand Vermont's "disturbing the peace" statute to include electronic communications that "knowingly and intentionally" cause "false and defamatory" postings to be made on a website. The crime would be punishable by a fine of up to $250 and up to three months in jail; on second offense, the fine and jail time increase to $500 and six months.

The legislation has been referred to the House Judiciary Committee.

Obuchowski tells Seven Days the legislation was requested by Tom MacPhee, chair of the Rockingham Selectboard, following the resignation of Robert Thomson last summer. Thomson resigned from the selectboard over what he felt were "personal attacks" against him in the comments section of the Brattleboro Reformer website by readers critical of his role in laying off two town employees.

While the Obuchowski-Partridge bill is aimed at "false and defamatory" comments made about individuals including politicians, comments threatening politicians have been in the news locally and nationally. Burlington police attended a city council meeting this week after a commenter on the Burlington Free Press website referenced bringing "Smith and Wesson" to the meeting. Meanwhile, in reaction to the shooting rampage in Tuscon, a Pennsylvania congressman has proposed legislation that would make it a federal crime to make criminal threats against a member of Congress or his or her staff.

What exactly the commenters said about Thomson was unclear; a search for the incriminating comment thread turned up nothing and Thomson couldn't be reached for comment Wednesday at the market he owns in southern Vermont. Obuchowski said the remarks attacked Thomson, who also owns an inn, for "not treating his employees properly," among other things.

"If someone can attack a public, local official anonymously, without a remedy, it's going to keep a lot of people out of public service that should be in public service," Obuchowski says. "I suppose you can say, 'If you can't take the heat, get out of the kitchen.' But to have people slander or libel you anonymously and not be able to at least find out who that individual is, is a bad situation for Vermont."

As written, the disturbing the peace statute on the books makes it a crime to "terrify, threaten, harass, or annoy" someone by means of a telephone, or other electronic communication. Obuchowski argues that libel — the civil remedy for people who believe they've been smeared by written comments — is too hard to prove and that criminal sanctions are needed as another remedy.

Asked whether his bill would have the effect of chilling speech that is critical of elected officials, Obuchowski responds, "Not at all."

"Let me know who you are so that I can respond," he says. "When I was [a legislator] and someone wrote a derogatory letter to the editor, I called the person out. Not to give them hell, but to educate them as to what facts they were missing and so on. And those conversations were always good conversations and they ended friendly and at least we understood each other's position. That build democracy. I think these efforts that I've seen and been told about are tearing democracy down."

Allen Gilbert, executive direct of the ACLU-VT, hadn't seen the bill when contacted Wednesday morning but says his assumption was that the underlying statute already applied to threatening or harassing Internet communications such as web comments. Gilbert says the statute is rarely used as it is, and questions whether prosecutors would be apt to bring criminal charges for defamation.

Another issue: How would police identify anonymous commenters in the first place? Gilbert notes they'd need probable cause to obtain a search warrant to investigate someone's computer — and that wouldn't he easy, he says.

"If it passed, there would certainly be some interesting lawsuits around it I'm sure," Gilbert says.

Meanwhile, the Reformer recently switched its commenting system in response to the Thomson situation, stating in an editorial note:

"With the right to free speech comes certain responsibilities, among them not abusing that precious right by engaging in defamatory remarks with no basis in fact or smearing people as a group. Unfortunately, the cloak of anonymity enables too many to make the kind of remarks they would never make if they were required to identify themselves."

Comments

[Tim]

Remember when Americans had a right to free speech?

[Steve Arrants]

If the Letters to the Editor sections require a real name, address, and phone number, so should comments sections. The Freep online comments are unreadable, filled with the dreck and bile from all sides. And it is mostly the same anony-mice for the most part. The comments sections were supposed to be about offering readers a place to discuss news and opinions. They don't do that.

[Bill Simmon]

@Tim, you mean back when we had the Alien and Sedition Acts? Speech is vastly more free now, from a Constitutional standpoint, than at any point in American history.

@Steve, Don't you think the Freeps comments are sort of self-censoring? If they are "unreadable" (and I agree that they are), then nobody will read them and they are, at worst, an annoying peanut gallery. And registrations are required as it is. "Real names" are overrated. Real names are not required here at Seven Days and the tone of the comments sections is much better here. The difference is in thoughtful moderation, IMO.

[andy]

shouldn't it also be illegal to use facial hair to impersonate a baleen whale? seriously, this guy must be eating at least 40% of his body weight in plankton and small fish daily with a mandible like that!

[Jimmy]

"Obuchowski argues that libel... is too hard to prove"

Proving libel means proving that someone knowingly wrote something false and defamatory. That's it. How exactly would he lower that standard? Seems like the one relevant followup question that wasn't asked here.

[Margo Howland]

As long as Internet postings can be anonymous I think it would be difficult to prove. Obie's bill needs some tweaking...

[Bill Simmon]

@Andy: nicely played, sir.

[Kris Morton]

This is ludicrous legislation. Grow a set and get some thicker skin. If you choose to play in politics, you had better be used to some differing viewpoints and criticism. Threats would already be enforcable I would imagine.

[Tim]

State of Vermont
District Court of Chittenden County

NOW COMES Officer Smith, Affiant, who deposes and says he has probable cause to believe that John Jones (AKA OvertaxedVermonter121, the Defendant, has committed the crime of DISORDERLY CONDUCT in violation of Title 13, section 1024 of Vermont Statutes annotated.

1.) That on January 13, 2011 at one PM the Defendant posted in an online forum that Micheal Obuchowski, hereinafter referred to as the victim, was "a big fat bureacratic whale" with intent to defame,

2.) Taht I met with the vicitm and determined that he is clearly a human being and not a cetacean. Additionally he is not obese (although he could be described as "big boned").

3.) Therefore a search warrant was applied for and granted and served at the office of SEVEN DAYS at 4 PM and computer forensic experts determined that the poster OvertaxedVermonter121 is the nom de guerre of John Jones, a known complainer and gad fly at local government meetings.

4.) In the course of serving the search warrant it should be noted that two staff persons were detained for impeding officers and a third was found smoking a marijuana joint in the women's bathroom.

[Mordey]

Mr. Speaker, I rise to propose an amendment to Rep. Obuchowski's bill, striking all existing portions thereof, and substituting: "It is hereby declared illegal in the State of Vermont to introduce dopey, feel-good, and time-wasting legislation. A criminal penalty of 6 months in jail will be imposed for each such bill introduced."

Yes, Mr. Speaker, I realize that my amendment threatens virtually all members of the Vermont Legislature with jail time for most of what they do every day, such as last year's bill to outlaw the trimming of dog's ears, and a recent favorite, the "Pete the Moose" bill. But if this Legislation means that the Vt. Legislature will spend its time in jail, rather than in the Legislature, the citizens of Vermont will be better off.

[odum]

Good catch Andy.

Hmmm.

[Cathy Resmer]

Tim, your comment about the cops catching someone smoking a joint outside the women's room at 7D contains false information. We don't have gender-specific bathrooms here.

[Lauren Ober]

Wait, so I could get popped for annoying people with what I post online? I should quit now.

[Tim]

Cathy,

"We don't have gender-specific bathrooms here."

Really? Seats left up or down?

[Cathy Resmer]

Seats?

[Jcarter]

A knee jerk reaction by the BFP and a thin skinned politician make for bad policy decisions.

This bill is ridiculous anyways, if you can prove that a person "knowingly and intentionally" libeled another, why not just file libel charges???

Redundant and unenforceable laws are the VT way. Not to mention it would give legislators the excuse to avoid working on real issues. Which considering the make up... may be the biggest benefit of all.

[Tim]

@ Cathy
Well, maybe if you weren't STONED all the time you'd get my meaning.

Then again maybe not.

[Tim]

Did that sound angry? It was supposed to be sarcastic. Fucking internet.

[Haik Bedrosian]

How about "true and defamatory?" Is that ok? What about "false and complimentary?

This proposal is silly.

[Stew]

Another issue: How would police identify anonymous commenters in the first place? Gilbert notes they'd need probable cause to obtain a search warrant to investigate someone's computer — and that wouldn't he easy, he says.

Gilbert is obviously behind the times packet sniffers can be placed on the identifying mac address and the Ip number the technology is difficult for a maroon like me or you to defend against. This is also easily done at the level of Burlington Telecom the state owned or in our case City owned hub.

Troubling when politicians want to squelch free speech they deem offensive to them. 1984 looks a lot like 2011 in VT

[Jimmy]

The summary of the article is this: some guy wants to criminalize libel.

He might or might not want to change what constitutes libel, but we'll never know because he wasn't asked, and the link to "H.16" here is just a link to the Journal of the House noting that it was introduced.

[Andy Bromage]

Jimmy, read carefully: The bill refers to "defamation," and according to Allen Gilbert of the ACLU, that's a different legal animal than libel. So maybe it's more accurate to say that Obie and Carolyn Partridge want to criminalize defamation. I suspect, however, that this response won't satisfy you. So why don't you just email me your phone number and I'll follow up with you personally? Ya know, since you seem interested in this topic...

[Jimmy]

I did read carefully. I also read dictionary.com, merriam webster, and law.com's definitions of libel, respectively:

"defamation by written or printed words, pictures, or in any form other than by spoken words or gestures."

"a written or oral defamatory statement or representation that conveys an unjustly unfavorable impression"

"Libel is the written or broadcast form of defamation, distinguished from slander, which is oral defamation."

If you have any other information on this topic that you didn't bother to incorporate here - such as Gilbert's interesting take on the definition of libel - you might want to just put it in the article next time. Calling each individual reader is an awfully inefficient way to disseminate addenda.

[curiouserandcuriouser]

Off topic: I note the removal of the entire thread about the "poor tenant." The one who, it turns out, has been evicted by at least 5 landlords since 2000. Was that because it's now pretty obvious that he isn't really a "victim" after all?

[Tyler Machado]

Er, that post hasn't gone anywhere. Here's the link.

http://7d.blogs.com/blurt/2011/01/a-father-and-his-young-daughter-moved-out-of-a-ramshackle-burlington-apartment-wednesday-and-a-landlord-tenant-dispute-that.html

[Tim]

Peter Parker: Spider-Man wasn't trying to attack the city, he was trying to save it. That's slander.

J. Jonah Jameson: It is not. I resent that. Slander is spoken. In print, it's libel.

http://www.imdb.com/title/tt0145487/quotes

[curiouser]

Mea culpa.

[steve-o]

And speaking of criminalizing comments, I see that Bernie got angry at Jane Lindholm -- Vermont's nicest journalist -- and hung up the phone on her, because she had the nerve to . . . to . . . to . . . ask Bernie a tough question! And . . . push for an answer!

What a crybaby!

Heaven forbid that a public employee should have to explain why he did something! Jane, don't you know that Bernie is not to be questioned? And why not? Because he says so, that's why not! Don't you know that he is not wrong about using the Arizona massacre in connection with a fundraising pitch? It's the "right wing" that is wrong about this, not him! You must be either a "right wing extremist" yourself, or just a confused, unsophisticated, unwitting tool of the "right wing reactionaries!" Don't you see the "right wing conspiracy" that is unfairly targeting Bernie because he pointed out that the "right wing reactionaries" caused the massacre? How DARE you insist on an answer to a question that he doesn't like!

[Jimmy]

Just listened to that Sanders interview. Pretty amazing. She tried to read him a quote from the email and he said "I know what I wrote" and cut the interview short.

God help this guy if serous national journalists ever start interviewing him and asking moderately tough questions, you have to be able to handle it better than that.

[webber]

Can you post the link to the interview?

[Jimmy]

http://www.vpr.net/news_detail/89740/

[webber]

Just heard it. Summary: what I wrote was perfectly ok, the right wing is attacking me, and Jane stop questioning me.

Unbelievable.

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