Criminalizing Comments? Bill Would Make “False and Defamatory” Internet Postings a Crime

Elected officials take a lot of abuse from anonymous commenters who attack them on blogs and news websites. But should “cyberbullying” politicians be a crime?

It should if comments cross the line from critical into “false and defamatory,” says Michael Obuchowski (pictured in this old file photo). Obuchowski, a Rockingham Democrat, recently resigned from the Legislature to become commissioner of the Department of Buildings and  General Services. Before he left, Obie proposed numerous bills, including H.16, “An act relating to harassment and disturbing the peace through false and defamatory Internet website postings.”

Cosponsored by state Rep. Carolyn Partridge (D-Rockingham), the bill would expand Vermont’s “disturbing the peace” statute to include electronic communications that “knowingly and intentionally” cause “false and defamatory” postings to be made on a website. The crime would be punishable by a fine of up to $250 and up to three months in jail; on second offense, the fine and jail time increase to $500 and six months.

The legislation has been referred to the House Judiciary Committee.

Obuchowski tells Seven Days the legislation was requested by Tom MacPhee, chair of the Rockingham Selectboard, following the resignation of Robert Thomson last summer. Thomson resigned from the selectboard over what he felt were “personal attacks” against him in the comments section of the Brattleboro Reformer website by readers critical of his role in laying off two town employees.

While the Obuchowski-Partridge bill is aimed at “false and defamatory” comments made about individuals including politicians, comments threatening politicians have been in the news locally and nationally. Burlington police attended a city council meeting this week after a commenter on the Burlington Free Press website referenced bringing “Smith and Wesson” to the meeting. Meanwhile, in reaction to the shooting rampage in Tuscon, a Pennsylvania congressman has proposed legislation that would make it a federal crime to make criminal threats against a member of Congress or his or her staff.

What exactly the commenters said about Thomson was unclear; a search for the incriminating comment thread turned up nothing and Thomson couldn’t be reached for comment Wednesday at the market he owns in southern Vermont. Obuchowski said the remarks attacked Thomson, who also owns an inn, for “not treating his employees properly,” among other things.

“If someone can attack a public, local official anonymously, without a remedy, it’s going to keep a lot of people out of public service that should be in public service,” Obuchowski says. “I suppose you can say, ‘If you can’t take the heat, get out of the kitchen.’ But to have people slander or libel you anonymously and not be able to at least find out who that individual is, is a bad situation for Vermont.”

As written, the disturbing the peace statute on the books makes it a crime to “terrify, threaten, harass, or annoy” someone by means of a telephone, or other electronic communication. Obuchowski argues that libel — the civil remedy for people who believe they’ve been smeared by written comments — is too hard to prove and that criminal sanctions are needed as another remedy.

Asked whether his bill would have the effect of chilling speech that is critical of elected officials, Obuchowski responds, “Not at all.”

“Let me know who you are so that I can respond,” he says. “When I was [a legislator] and someone wrote a derogatory letter to the editor, I called the person out. Not to give them hell, but to educate them as to what facts they were missing and so on. And those conversations were always good conversations and they ended friendly and at least we understood each other’s position. That build democracy. I think these efforts that I’ve seen and been told about are tearing democracy down.”

Allen Gilbert, executive direct of the ACLU-VT, hadn’t seen the bill when contacted Wednesday morning but says his assumption was that the underlying statute already applied to threatening or harassing Internet communications such as web comments. Gilbert says the statute is rarely used as it is, and questions whether prosecutors would be apt to bring criminal charges for defamation.

Another issue: How would police identify anonymous commenters in the first place? Gilbert notes they’d need probable cause to obtain a search warrant to investigate someone’s computer — and that wouldn’t he easy, he says.

“If it passed, there would certainly be some interesting lawsuits around it I’m sure,” Gilbert says.

Meanwhile, the Reformer recently switched its commenting system in response to the Thomson situation, stating in an editorial note:

“With the right to free speech comes certain responsibilities, among them not abusing that precious right by engaging in defamatory remarks with no basis in fact or smearing people as a group. Unfortunately, the cloak of anonymity enables too many to make the kind of remarks they would never make if they were required to identify themselves.”

This article appears in Jan 12-18, 2011.

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