Prevarication Du Jour


Bill Schmalfeldt has a post called Hoge Seems to Misunderstand the Purpose of an Appeal over on his teamschmalfeldt dot com blog. He writes concerning the Maryland Legislature and the state’s misuse of electronic communication statute,

They toughened the law in regard to minors.  But left intact the prohibition on Twitter as a source of harassment.

OK, Gentle Reader, here’s the text of the relevant portion of that law—

§ 3-805. Misuse of electronic communication or interactive computer service.
(a) Definitions. —
(1) In this section the following words have the meanings indicated.
(2) “Electronic communication” means the transmission of information, data, or a communication by the use of a computer or any other electronic means that is sent to a person and that is received by the person.
(3) “Interactive computer service” means an information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including a system that provides access to the Internet and cellular phones.
(b) Prohibited. —
(1) A person may not maliciously engage in a course of conduct, through the use of electronic communication, that alarms or seriously annoys another:
(i) with the intent to harass, alarm, or annoy the other;
(ii) after receiving a reasonable warning or request to stop by or on behalf of the other; and
(iii) without a legal purpose.
(2) A person may not use an interactive computer service to maliciously engage in a course of conduct that inflicts serious emotional distress on a minor or places a minor in reasonable fear of death or serious bodily injury with the intent:
(i) to kill, injure, harass, or cause serious emotional distress to the minor; or
(ii) to place the minor in reasonable fear of death or serious bodily injury.

Section (b)(2) is the part recently added by the Legislature for additional protection of minors. There is nothing in the statute that exempts Twitter or other social media from being covered by the law. It’s just not there. Indeed, the 2012 revision of the earlier 2002 version was enacted by a unanimous vote of both houses of the Legislature in order to specifically include messages sent via social media by changing what was covered from “email” to “electronic communication.” Items that are not sent to and received by a person (eg., simply tweeted with no @mention or @reply) aren’t covered by § 3-805 and are not subject to it’s stiffer penalty, but may still be covered by the general harassment statute (§ 3-803).

All violations of § 3-805 are also violations of § 3-803, but is possible to use electronic communications to violate § 3-803 without running afoul of § 3-805.

§ 3-805 is irrelevant to Hoge v. Schmalfeldt. It never was at issue in the case. Only § 3-803 is. Thus, the Cabin Boy is arguing about something that is a non-issue and is getting his argument wrong as well.

He also has a bizarre idea that the U. S. v. Cassidy [814 F.Supp.2d 574 (2011)] case declares that it is impossible to harass someone via Twitter. That isn’t what the case says. It finds that a particular federal statute was unconstitutionally applied in the particular set of circumstances of a particular case. It does not hold that the federal law in question is unconstitutional but that is was wrongly applied. Furthermore, the decision does not address harassment per se, and harassment has never been held to be a protected form of speech.

Neither state law nor federal law nor the First Amendment provide a safe harbor for harassment on Twitter.

13 thoughts on “Prevarication Du Jour

  1. Instead of being such a condescending assclown on teh Twitterz, Cabin Boy should be expressing appreciation for attempts at setting his delusional mind straight.

    But, alas… he will continue on with his deranged ways. SSDD.

  2. For a “journalist”, the CB doesn’t seem to understand English very well. Even a layman like me had no problem reading the law. According to the Office of the Attorney General:

    “…the bills may not include communications on web pages, blogs, Twitter, bulletin boards, or the Facebook or Myspace pages of the poster or of a person other than the person the poster intends to harass”

    — meaning the harassment law doesn’t include anything written on the CB’s website, blog, Twitter, etc (1st A)

    — as long as it isn’t addressed to (or on the website, blog, etc of), the person he has been harassing.

    The court has already accepted that using the @ on Twitter is addressing a person. The Attorney General doesn’t write about that issue at all.

  3. Wow, you guys are just moron lickspittles. Bill says so. You can’t read and you are too stupid to understand that Bill has already won. Mr. Hoge should just surrender now and slink off to live in a foreign country to avoid the massive embarrassment that the esteemed lawyer Schmalfeldt is going to hand out.

    In other news, the Giants are on a winning streak.

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