Speaking up on public issues can be dangerous.
There is always going to be some level of criticism when you address a controversial topic. But recently, our civil discourse has deteriorated so badly that speaking up on public issues draws not only criticism but also harassment. For instance, when Missouri Senator Josh Hawley announced his intention to challenge the presidential election results, protestors showed up to his private residence and threatened his wife and newborn daughter
while he was away.
Harassment like this keeps many good people from getting involved in politics or speaking out on public issues.
One form of harassment that is becoming more common is “doxing.” To “dox” means “to publicly identify or publish private information about (someone) especially as a form of punishment or revenge.” This usually involves publishing personal information on the internet for the purpose of stirring people up to go harass them. Doxing has become a tool of cancel culture to inflict pain on people with whom they disagree for the purpose of driving them out of the public sphere.
Fortunately, the Alabama legislature has recognized how destructive doxing can be and has introduced a bill
to ban it. This bill protects every person from having personal identifying information doxed, such as their home address, phone number, email address, work address, and information about their children, making the foregoing a crime punishable as a Class A misdemeanor. It goes one step further for public servants, firefighters, and law enforcement, protecting them not only from all of the above, but also from doxing these people with the intention of “imped[ing] the duties” of public servants, law enforcement officers, or firefighters. Violation of that provision would be a Class D felony.
The Alabama Center for Law and Liberty recognizes that doxing is a real problem and that people who instigate harassment against others should be held accountable. While most of the bill is good, there are some areas that could use some refinement to avoid potential First Amendment problems.
Specifically, the bill does not define either the term “harassment” or “impeding the duties” of a public servant, law enforcement officer, or firefighter. The ACLL is concerned that failing to define these terms could lead to the punishment of legitimate grassroots activism in some cases.
For instance, let’s say that the legislature was considering a bill to cancel college football for the 2021 season because of COVID. Most of us wouldn’t like that. We would probably want to call our public officials and tell them to vote no. So let’s say that you find your elected official’s work address, post it on your Facebook page, and tell folks from your neighborhood to go there and tell your representative to vote no. Everyone in your neighborhood shows up and your representative is so overwhelmed by his constituents that he can’t get any work done until he’s given an answer on whether we’re gonna have football or not. (This is probably the only thing that could get Alabama and Auburn fans in the same room rooting for the same thing.) He finally votes no, the bill dies, and you begin to celebrate as you look forward to another season.
But before too long, police officers show up at your house and tell you you’re coming with them. Why? Because you posted a public servant’s work address online with the purpose that other people show up there for the purpose of harassing him and impeding him from doing his job. You say, “Wait, what about the First Amendment? What about free speech and the right to petition for the redress of grievances? The cops reply that your representative felt that it was more like harassment than anything else. They also say that he was so overwhelmed that he couldn’t do anything else until he addressed that issue. So, the cops say, you’re going to jail.
Fun stuff, huh? Not really. But these are the kinds of problems that the bill could present if it’s not refined.
A simple amendment could fix these problems. First, the amendment could define “harassment” as the crime of harassment that Alabama law already forbids
, so that the term “harassment” isn’t open to interpretation and abuse. Second, it could also add a section saying that nothing in the bill may be construed to prohibit grassroots activism or First Amendment activity. While the courts should, in theory, refuse to enforce any part of the bill that violates the First Amendment, putting a section in the bill itself that says it can’t be used to quash the First Amendment would stop the government from charging someone with such a crime and would reduce the chances of an innocent person being charged at all.
Finally, as a policy matter, the bill might accomplish its purpose better if it created a civil right of action instead of just mandating criminal penalties. If someone doxes you by posting your work address and Antifa comes by and burns down your business, then as the bill stands right now, the person who doxed you would spend only a little time in jail or pay a small fine to the State. What about you? What about your business? The person who doxed you might hate you enough to accept the relatively small penalty in order to see you ruined. But if the bill were amended to allow you to sue him for damages, then he would have to pay you five or six figures for all the damage he caused. That would be a game-changer, making him think twice about doxing you. It would also ensure that you could get compensated for your loss.
We commend the Alabama legislature for attempting to stop the abusive act of doxing. We hope that these suggestions can help avoid constitutional problems and accomplish the legislature’s purpose even better.
Matt Clark serves as the Alabama Center for Law & Liberty’s Executive Director. ACLL is the non-profit litigation arm of the Alabama Policy Institute. For more information, visit alabamalawandliberty.org.