Thank you for a thoughtful response. I will try to be equally thoughtful.
First of all, we have to recognize that we are dealing here purely with words. There have been no actions. That means this matter falls squarely within the protections of the First Amendment.
The reasonable man standard usually applies when there are actions involved. Did the person ACT as a reasonably prudent person would? This is the tort standard, applied to many situations from auto accidents to spilling a cup of hot coffee in your lap.
If I had been physically going to Poet's home, or following her on the street, that would be a very different situation. But we are dealing with words only. Of course, not all words are entitled to first amendment protection, but the general rule is that they are unless there is a specific exception (defamation, fighting words, pornography, etc.) And yes, SI is a private organization and so not subject to the First Amendment. But when the courts impose a penalty or remedy, that is state action and subject to the first amendment.
There are several aspects involved. First, to and about are two different things, though they tend to get lumped together. And second, there could be either a remedy for past writings or a restraint on future writings, or both.
A restraint on future writings would involve prior restraint, which is done only in very rare instances. I believe it is very unlikely that a court would impose a prior restraint on pure speech in this situation.
As to past writings, it is, IMO, unlikely that a court would address writings about another person unless they violated defamation or other rules. I have never seen a harassment action brought because one person was saying something about another person. If that were actionable, a large number of the people on SI would be liable for penalties! (The Investment Chat Lawsuit thread has had some excellent discussions on this very issue.) And the barber shops and hair salons of this country, to say nothing of golf and bridge foursomes, would have very little to talk about if the subjects of gossip in small towns told people not to talk about them.
So we're really left with dealing with past postings made directly to Poet. And here, there are several problems. First, are postings addressed to an alias really to a person? Can you harass an electronic alias? I've never seen any law on this, but I have my doubts. Second, and perhaps more important, SI provides an ignore function. All Poet has to do, if she really doesn't want to read anything from me, is put me on ignore. Then she has to take a positive action in order to be aware of anything I'm saying. I doubt, frankly, that any court would consider that harassment. This is a public forum -- like writing letters to the newspaper or posting notices on the bulletin board at the grocery store. If you don't want to read them, don't. If you choose to read them, don't complain that you've been harassed by the messages.
What one would have to say is that simply addressing a message to a person in a public forum is harassment if they have asked you not to do it. But think about the application of this principle to spam. I would LOVE it if there were a law that said I could tell a spammer that I didn't want to receive any more emails from them, and they had to stop. But I don't know of any state that has such a law-- our state certainly doesn't. The courts have basically said that addressing something to somebody over the intenet isn't unlawful if they have the option to choose not to read it. I am quite sure that the same principle would apply to postings to SI.
And of course, public posts made ostensibly to a person on a public board are really made to a wider community. If Poet writes a post, my reply to it may, although addressed to her as a response, not in fact be addressed specifically to her at all, but may be a comment for the general SI public on the issue she has raised, the article she has posted, or the comment she has made. It's going to be hard, I think, to persuade a court that such postings are not protected by the first amendment.
One thing I'm quite sure of is that if a case of harassment over SI were brought by anybody against anybody, the ACLU and the EFF would be very interested. They have a strong bias toward a free and open internet, and would, I believe, strongly oppose any attempt by a court to restrain or penalize such postings.
There are other issues involved, but these will do for a start. |
