Texas Public Policy Foundation criticizes "overcriminalization"

Marc Levin of the Texas Public Policy Foundation, a conservative think tank based in Austin, has posted a fine op ed on their website criticizing "overcriminalization" of minor, offensive behaviors in federal law, pointing the provisions under which Cindy Sheehan and Beverly Young were arrested at the State of the Union for wearing t-shirts with political messages about the war. Other unnecessary laws, he declares, could be used to prosecute anonymous bloggers. While charges against Sheehan and Young were dropped, Levin writes

the rest of us must live knowing there are thousands of similarly vague federal crimes lending themselves to arbitrary enforcement.

For example, annoying someone on the Internet is now a federal crime punishable by up to two years in federal prison. The provision is buried in the Violence Against Women and Department of Justice Reauthorization Act signed into law by President Bush on January 5, 2006. A provision entitled “Preventing Cyberstalking” was added to the bill by Senator Arlen Specter (R-Pa.).

The provision, which appears in Section 113 of the legislation, states: “Whoever...utilizes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet... without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person...who receives the communications...shall be fined under Title 18 or imprisoned not more than two years, or both.”

This new law could be used to prosecute anonymous blogs that ridicule politicians or even anonymous messages sent through dating websites. What the sender considers to be a romantic greeting could be found annoying by the recipient.

While on some days I can think of a few anonymous bloggers I'd like to see incarcerated, that's purely out of personal spite - it's astonishing that there might be a legal justification to criminalize anonymous blog critics. Levin thinks the "provision almost certainly violates the First Amendment in light of the U.S. Supreme Court’s 1995 decision in McIntyre v. Ohio Elections Commission, which struck down state restrictions on anonymous political pamphlets. Surely, constitutionally protected speech in print is also protected online," he writes.

I couldn't agree more. I'm also glad to see Levin's sensible conservative commentary regarding overcriminalization and immigration reform. He declares:

while immigration reform is needed, it also raises the specter of overcriminalization. Legislation passed by the House is pending in the Senate that imposes a three-year mandatory minimum prison sentence on anyone who, with an expectation of financial gain, “assists, encourages, directs, or induces” two or more foreigners to illegally reside in the U.S. While this provision is likely intended to apply to large businesses that employ illegal immigrants, it could also imprison ordinary Americans who unwittingly hire an illegal immigrant as a housekeeper, nanny, or gardener.

He's right - the proposed law amounts to swatting flies with a baseball bat. You might kill some flies, but you're also likely to leave big holes in your walls and bust up the furniture pretty good while you're at it.

As always, I'm glad to see TPPF addressing these subjects head on. Combating overcriminalization isn't a conservative or liberal issue. It's an American issue. Anyone who respects the Constitution and the Bill of Rights should be concerned. As Levin warned:

Ultimately, if the government is empowered to arrest us for annoying messages on t-shirts, all of our freedoms are in danger of being stripped away.