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Lesson 49 - Free Speech 10:

ANNOYING / OFFENSIVE / HARASSING SPEECH, PART 1

Generally, free speech protects speech even when it's annoying or offensive, and even when it's intended to annoy or offend. Thus, if someone posts a newsgroup article calling you names, just to tease you or get back at you, he's largely immune from punishment.

There are a few possible exceptions:
1.ONE-TO-ONE COMMUNICATIONS: The government can probably restrict people from sending one-to-one communications -- for instance, direct e-mail -- to people who've already said that they don't want to hear from them. If I send you physical mail that you dislike, you can essentially order me to take you off my mailing list. If I keep sending things to you, I can be punished.
This sort of order is a speech restriction, but the Court has held that it's constitutional (in a case called Rowan v. Post Office Department), because it doesn't interfere with my ability to talk to others. Presumably Congress could enact a similar law for e-mail.

Note, though, that this almost certainly applies only when I *can* take you (and only you) off my mailing list. If I post annoying messages to a newsgroup or a discussion list, and you want to stop getting them, you can't order me to stop posting them. Such an order would interfere with my ability to talk to others, not just to you. (Of course if you own or moderate the mailing list, you can order me to stop posting annoying messages, under threat of banishment from the list.)

2.INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: In many states, one can sue a speaker for speech that intentionally inflicts emotional distress. The test is generally that the speech must be "outrageous," and must cause "severe" distress.
This sort of tort claim is extremely troublesome from a free speech perspective. Free speech generally protects even outrageous speech, even when it causes severe distress, and even if people think it's of no redeeming social value.

In fact, the Court has made clear that *public figures* can't bring intentional infliction of emotional distress claims based on speech unless the speech is otherwise unprotected (e.g., an intentional falsehood or a threat or some such). The rule for private figures is not clear, but there's at least a strong potential free speech defense even to those claims.

More On Annoying Speech in the Next Post.

authors:
Larry LessigDavid PostEugene Volokh



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