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107 Nw. U. L. Rev. 731 (2012-2013)
One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and Cyberstalking

handle is hein.journals/illlr107 and id is 739 raw text is: Copyright 2013 by Northwestern University School of Law Printed in U.S.A. Northwestern University Law Review Vol. 107, No. 2 ONE-TO-ONE SPEECH VS. ONE-TO-MANY SPEECH, CRIMINAL HARASSMENT LAWS, AND CYBERSTALKING Eugene Volokh ABSTRACT-Until recently, criminal harassment usually referred to telephone harassment-unwanted communications to a particular person. Likewise, stalking laws were originally created to deal with people who were physically following a person or trying to talk to that person. The same has historically been true with regard to restraining orders. But in recent years, these laws have been increasingly reworded or interpreted in ways that also cover speech about a person, even when that speech is communicated to potentially willing listeners. The law is in effect returning to an era when criminal libel laws could impose liability not just for falsehoods, but also for true statements or opinions that were supposedly not said with good motives. This Article will argue that this approach is unconstitutional when applied to speech said about the target rather than just to the target, at least when the speech is outside the traditional First Amendment exceptions (chiefly threats and fighting words, plus perhaps libel). Courts should therefore reject the application of these laws to such one-to-many speech, and legislatures should resist the broadening of such laws. AUTHOR-Gary T. Schwartz Professor of Law, UCLA School of Law (volokh@law.ucla.edu). Thanks to Stuart Banner, Paul Bergman, Dan Bussel, Robert Goldstein, Mark Grady, Carole Heyward, Bill Klein, Maximo Langer, Bill McGovern, Seana Shiffrin, Alexander Stremitzer, Jonathan Varat, and Steve Yeazell for their help. I'm delighted to have been invited to participate in this Festschrift honoring Marty Redish, whose theoretical and doctrinal First Amendment work I have long admired. Having little to add to Marty's important contributions on the particular subjects that he has confronted, and little to say in disagreement with them, I thought I'd follow another Festschrift tradition by writing an article in Marty's honor and in Marty's field, inspired by the high standards that he has set. 731

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