How the U.S. Legal System Deals with Online “Trolling”

The internet and social media have created incredible opportunities for communication and interaction across the world. Unfortunately, this includes more than just friendly or polite communications. The phenomenon of “trolling,” broadly defined as posting or sending messages deliberately intended to upset others, has existed since the very beginning of the internet, but social media has created vast new opportunities for “trolls.” Many countries have enacted laws criminalizing various forms of internet trolling, but such efforts have been limited in the U.S. The First Amendment’s guarantee of freedom of speech would make enforcing such a law difficult, and crafting a law that targets only the most abusive, inexcusable forms of trolling, as opposed to speech that is merely controversial, is difficult if not impossible. The unintended consequences of such a law could be significant.

Part of the problem with efforts to legislate “trolling” is the difficulty defining the term. A CNN article describes it as a person who “deliberately disrupt[s] online discussions in order to stir up controversy.” The key elements of trolling seem to be a deliberate act of communication with the sole or primary motivation of causing offense or distress. The word’s meaning has grown over the brief history of the internet to encompass a wide range of behaviors, which range from relatively harmless pranks to acts that might fall under existing laws regarding cyberstalking or even hacking.

The use of telecommunications equipment, including telephones, mobile devices, and computers, to harass or stalk someone is prohibited under federal and state cyberstalking laws. Under federal law, the content of the transmission must be “obscene or child pornography,” and it must be made “with intent to abuse, threaten, or harass another person.” 47 U.S.C. § 223(a)(1)(A). Texas law contains similar provisions regarding cyberstalking, Tex. Pen. Code § 33.07(b). It also prohibits “online impersonation,” which it defines to include posing as a person online or posting their private information without their permission and “with the intent to harm or defraud any person.” Id. at § 33.07(a).

The federal and Texas laws mentioned above are generally limited to conduct that targets a particular person or persons and that is either persistent or pervasive, or involves an element of fraud. Laws in some other countries cover a broader range of activity. Australia, for example, reportedly prohibits “using a carriage service to menace, harass or offend,” a very vague standard. This summer, an Australian man entered a guilty plea in a case arising from a torrent of abusive comments left on Facebook a year earlier. He received a twelve-month sentence that is similar to probation in the U.S. system. The United Kingdom can impose a two-year jail sentence for certain acts of trolling, and New Zealand passed a similar law in 2015.

The First Amendment to the U.S. Constitution sets very strict limits on the ability of the state to restrict speech. The principle of “prior restraint” is one of the biggest obstacles to anti-trolling laws in this country. At the same time, the subjective nature of concepts like “offense” makes the potential impact of such laws difficult to predict even if they weren’t likely unconstitutional. Efforts to combat certain specific types of online activity could very easily expand to cover a much wider range of acts or statements.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Michael J. Brown, a board-certified cyber crime lawyer in west Texas, represents people facing alleged charges in state and federal courts. Contact us today online or at (432) 687-5157 to schedule a confidential consultation to see how we can help you.

More Blog Posts:

Operator of “Revenge Porn” Website Sentenced to Two Years in Federal Prison, Texas Criminal Law Blog, March 11, 2016

How Clearing One’s Browser History Might Be a Federal Crime, Texas Criminal Law Blog, January 6, 2016

Nine People Indicted for Alleged Insider Trading, Using Information Allegedly Obtained by Hacking, Texas Criminal Law Blog, October 30, 2015


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