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High School Senior Faces Jail Time Over Pornographic Fiction
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I think this case is much worse. The law at issue in the 1995 case was against making threats against another person, whereas the law here ("harassment") would clearly be unconstitutional as applied, if utilized successfully. As far as the reports say, the defendant here did not communicate with the alleged victim, so the law would have to be stretched to mean that if you do something that annoys someone else, that's illegal.
There is no case here.
Here's the law:
S 240.30 Aggravated harassment in the second degree.
A person is guilty of aggravated harassment in the second degree when,
with intent to harass, annoy, threaten or alarm another person, he or
she:
1. Either (a) communicates with a person, anonymously or otherwise, by
telephone, or by telegraph, mail or any other form of written communi-
cation, in a manner likely to cause annoyance or alarm; or
(b) causes a communication to be initiated by mechanical or electronic
means or otherwise with a person, anonymously or otherwise, by tele-
phone, or by telegraph, mail or any other form of written communication,
in a manner likely to cause annoyance or alarm; or
2. Makes a telephone call, whether or not a conversation ensues, with
no purpose of legitimate communication; or
3. Strikes, shoves, kicks, or otherwise subjects another person to
physical contact, or attempts or threatens to do the same because of a
belief or perception regarding such person`s race, color, national
origin, ancestry, gender, religion, religious practice, age, disability
or sexual orientation, regardless of whether the belief or perception is
correct; or
4. Commits the crime of harassment in the first degree and has previ-
ously been convicted of the crime of harassment in the first degree as
defined by section 240.25 of this article within the preceding ten
years.
Aggravated harassment in the second degree is a class A misdemeanor.
S 240.31 Aggravated harassment in the first degree.
A person is guilty of aggravated harassment in the first degree when
with intent to harass, annoy, threaten or alarm another person, because
of a belief or perception regarding such person`s race, color, national
origin, ancestry, gender, religion, religious practice, age, disability
or sexual orientation, regardless of whether the belief or perception is
correct, he or she:
1. Damages premises primarily used for religious purposes, or acquired
pursuant to section six of the religious corporation law and maintained
for purposes of religious instruction, and the damage to the premises
exceeds fifty dollars; or
2. Commits the crime of aggravated harassment in the second degree in
the manner proscribed by the provisions of subdivision three of section
240.30 of this article and has been previously convicted of the crime of
aggravated harassment in the second degree for the commission of conduct
proscribed by the provisions of subdivision three of section 240.30 or
he has been previously convicted of the crime of aggravated harassment
in the first degree within the preceding ten years.
Aggravated harassment in the first degree is a class E felony.
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I think this case is much worse. The law at issue in the 1995 case was against making threats against another person, whereas the law here ("harassment") would clearly be unconstitutional as applied, if utilized successfully. As far as the reports say, the defendant here did not communicate with the alleged victim, so the law would have to be stretched to mean that if you do something that annoys someone else, that's illegal.
There is no case here.
Here's the law:
S 240.30 Aggravated harassment in the second degree.
A person is guilty of aggravated harassment in the second degree when,
with intent to harass, annoy, threaten or alarm another person, he or
she:
1. Either (a) communicates with a person, anonymously or otherwise, by
telephone, or by telegraph, mail or any other form of written communi-
cation, in a manner likely to cause annoyance or alarm; or
(b) causes a communication to be initiated by mechanical or electronic
means or otherwise with a person, anonymously or otherwise, by tele-
phone, or by telegraph, mail or any other form of written communication,
in a manner likely to cause annoyance or alarm; or
2. Makes a telephone call, whether or not a conversation ensues, with
no purpose of legitimate communication; or
3. Strikes, shoves, kicks, or otherwise subjects another person to
physical contact, or attempts or threatens to do the same because of a
belief or perception regarding such person`s race, color, national
origin, ancestry, gender, religion, religious practice, age, disability
or sexual orientation, regardless of whether the belief or perception is
correct; or
4. Commits the crime of harassment in the first degree and has previ-
ously been convicted of the crime of harassment in the first degree as
defined by section 240.25 of this article within the preceding ten
years.
Aggravated harassment in the second degree is a class A misdemeanor.
S 240.31 Aggravated harassment in the first degree.
A person is guilty of aggravated harassment in the first degree when
with intent to harass, annoy, threaten or alarm another person, because
of a belief or perception regarding such person`s race, color, national
origin, ancestry, gender, religion, religious practice, age, disability
or sexual orientation, regardless of whether the belief or perception is
correct, he or she:
1. Damages premises primarily used for religious purposes, or acquired
pursuant to section six of the religious corporation law and maintained
for purposes of religious instruction, and the damage to the premises
exceeds fifty dollars; or
2. Commits the crime of aggravated harassment in the second degree in
the manner proscribed by the provisions of subdivision three of section
240.30 of this article and has been previously convicted of the crime of
aggravated harassment in the second degree for the commission of conduct
proscribed by the provisions of subdivision three of section 240.30 or
he has been previously convicted of the crime of aggravated harassment
in the first degree within the preceding ten years.
Aggravated harassment in the first degree is a class E felony.
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Thanks for posting the second-degree aggravated harassment guidelines. I don't think it's obvious that what he did is *not* second-degree aggravated harassment. It seems to me that his intent was, at the very least, to annoy his classmates and, at the most, to harass them. Also, if one considers that the Internet is itself a form of communication (what else is it?), then it's quite believable that he communicated with these unnamed, but identifiable, individuals by posting the story on the Internet. (No one forced him to post it; by posting it, he intended to communicate his story with an audience.)
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I agree that the student here may in fact be in violation of the law quoted above. However, I disagree that our constitution allows for the application of such a law to censor the student in question here. Many laws that affect speech (and this one is absolutely in the center of this category) are highly suspect under first amendment law.
I hope you would agree that criminalizing annoyance, or even harrassment without some aggravating factor like causing fear of bodily harm or directly contacting/calling the victim, would be an absurd thing. Rush Limbaugh would be in jail for three eternities. Do you think he doesn't specifically intend to annoy and harrass people? Of course he does. But he doesn't call my house to do it, so it's perfectly fine if he wants to. Same thing here, I think.
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Hey, I wasn't giving my *personal* opinion-- I was offering opinion based on the law you posted. What do I think about this, personally? If I were in the shoes of any woman depicted in his fictional porn, I'd be upset. Does that mean a law has been broken? Probably not. The situation would be different, if, after he wrote this story, he followed it up with some sort of person-to-person, direct harassment that gave me the impression he intended to threaten me.
And, yes, of course people like Rush Limbaugh & Howard Stern intend to annoy and even harass people. That's why I dislike them! But do they break the law? Not in my eyes.
(On a complete side note: A woman earlier had brought suit against Stern because, she alleged, he defamed her character by speaking rudely about her over the air. [That's never happened before!] Anyway, she lost the case because the court ruled that the supposed defamations Stern said [I think he called her a "chicken butt." No kidding.] could not necessarily be construed as demeaning. Interesting.)
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Humanity has the stars in its future, and that future is too important to be
lost under the burden of juvenile folly and ignorant superstition.
- Isaac Asimov
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