Student’s “lewd” video about teacher provokes errant Wisconsin ruling applying “online harassment” law

Can derogatory remarks about a teacher be both constitutionally protected speech and also punishable as harassment?

A Wisconsin appeals court appears to believe so.

The Wisconsin Supreme Court is being asked to take up the case of “Kaleb K.,” a 15-year-old student from Stevens Point, Wisc., who was arrested after posting a homemade rap on YouTube filled with profane, degrading language about his Spanish teacher.

In September 2012, a juvenile-court judge declared Kaleb delinquent on the grounds of violating state criminal statutes against disorderly conduct and unlawful use of a computer communications system.

In a ruling last November, the state Court of Appeals threw out the disorderly conduct charge, finding that Kaleb’s lyrics, though distasteful, were not threatening, obscene or otherwise outside the boundaries of the First Amendment.

But the court then went on to uphold the conviction under the state’s computer-harassment law, which makes it a misdemeanor if a speaker “sends a message to [a] person on an electronic mail or other computerized communication system” that contains lewd or profane language “with the intent to harass, annoy, or offend.”

It’s possible to harass someone even with a constitutionally protected message if the speech is delivered in an especially harassing manner. For instance, placing unwanted calls to a person’s home every night at 2 a.m. can be harassment whether the caller is shouting threats or is singing lullabies. In that situation, the punishment is “content-neutral,” directed entirely to the method of delivery without regard to the message.

That’s not what was going on in Kaleb’s case. Since posting a video on YouTube is not an especially intrusive method of speaking — indeed, there is no indication in the case that the teacher herself ever found the video on YouTube, and there is testimony that Kaleb specifically urged his friends not to show it to her — the court’s decision that Kaleb violated the computer harassment law has everything to do with the message. A message that the Court of Appeals just finished telling us cannot be punished, because it’s constitutionally protected speech.

The appeals court tried to paper over this internal contradiction by claiming that Kaleb’s unlawful act of computer misuse wasn’t his choice of words, but his act of transmitting the message. That just makes the ruling even more muddled. As UCLA law professor Eugene Volokh ably explained in a friend-of-the-court brief urging the Wisconsin Supreme Court to hear the case, speech is worthless if not transmitted. A constitutionally protected message cannot become a crime just by being shared on a widely viewable platform like YouTube.

It’s hard to work up much sympathy for Kaleb, since his video sounds like a mean-spirited rant with little to redeem it. But larger legal principles are at stake. If it is illegal to “annoy” or “offend” someone with speech on YouTube that uses profanity, then a strongly worded editorial commentary about a prominent political figure (“kiss my ass, Governor!”) would expose the speaker to arrest and jail time.

If the YouTube video credibly suggests, without factual basis, that the teacher behaved unprofessionally, the legal system gives her a civil claim for defamation — just as if any non-student made the same statements. If the statements are not defamatory but are just annoying, the justice system doesn’t exist to remedy annoyances. A “what-were-you-thinking?” conversation with the principal, followed by the student apologizing and pulling the video down (and being punished amply by his parents), would accomplish as much as a prosecution at a fraction of the cost.

Meanwhile, a bill pending in the Wisconsin Senate would revise the anti-harassment law under which Kaleb was convicted, extending the statute to cover not just one-to-one messages, but also postings on publicly viewable websites. It’s unclear whether such a revised law would survive a First Amendment challenge, since as proposed there would be no requirement that the speaker anticipate or intend that the victim even see the message, which is pretty much the essence of unlawful harassment. But it’s clear that Wisconsin legislators recognize their current statute is vulnerable to challenge if misapplied in cases like Kaleb’s where the “harassment” takes place over a mass medium.