‘Anti-doxing’ bill passed by Illinois General Assembly will punish legitimate advocacy and stifle constitutionally protected speech – Wirepoints

By: Mark Glennon*

An awful, unconstitutional piece of legislation that should have been opposed by Democrats and Republicans alike passed unanimously in the Illinois House and Senate. It now goes to Gov. JB Pritzker for signature. The only significant opposition came from the ACLU of Illinois. They are right to oppose it.

The bill, HB 2954, would create civil liability for doxing. “Doxing” is commonly used to mean publication, usually on the internet, of personal information about somebody, especially somebody’s individual identity and whereabouts, with the intent of harassing, shaming or taking revenge on that person.

But HB 2954 is far too broad. If Pritzker signs it, the law will stifle constitutionally protected speech and the bill, itself, will be a tool for political abuse.

You’d be at risk of liability under the bill for writing even the simplest and seemingly uncontroversial things, such as, “Look here at Mr. Jones’s web page. He’s openly defending pedophilia.” Or, “Shame on Ms. Smith who says on this Facebook page that Nazis were fine and the Holocaust never happened.” Or “Look these tweets by Sam Clark denying legitimate elections.” Or, “Can you believe this awful bill being sponsored by our own State Rep. So-And-So?”

All sorts of statements on any hot button issue could subject you to liability under the bill.

To see why that’s so, let’s go through the bill’s key parts, which aren’t that complicated. The full text is here, but let’s focus on what’s important.

What, under the bill, would put you at risk of liability for doxing?

First, you’d have to publish somebody’s “personally identifiable information” without their consent. But that’s nothing. “Publishing” is defined very broadly in the bill and includes posting something on the internet. And “personally identifiable information” has a sweeping definition in the bill. It means as little as somebody’s name in combination with either their education, gender, email address or a list of other things.

Second, you would need to have published the information with the intent to “harm or harass” the person you are talking about. That doesn’t provide any real protection for innocent, appropriate statements. Think about those examples I gave above. If you wrote them, of course you’d likely be doing so with the intent of harming or harassing the person you were talking about, though hopefully in a nonviolent, appropriate way. That would probably be your very purpose. You may just want them to be voted out of office, ridiculed or socially ostracized, and those intentions shouldn’t put you at legal risk.

Third, to be at risk of liability under the bill you’d need to have “knowledge or reckless disregard that the person whose identity you published will be reasonably likely to suffer death, bodily injury or stalking.”

That’s too broad and is directly at odds with established law, as is the second point above regarding intent. In Brandenberg v Ohio, the U.S. Supreme Court laid out a stricter standard, writing that speech can only be restricted if it is “directed at inciting or producing imminent lawless action and is likely to incite or produce such action.”[Emphasis added.]

It’s easy to see why the Supreme Court set that strict standard. Especially today, with so many incendiary issues, isn’t it “reasonably likely” that somebody somewhere will go over the edge about somebody else they think is on the wrong side? Even honest statements of fact or opinion, that don’t call for bad behavior, can set off somebody inclined to violence or stalking.

That happens often now. For example, A Chicago suburban bakery was vandalized and threatened after reports that it was planning a kid-friendly drag show last year. Violence between abortion opponents and supporters is all too common. Congressman Steve Scalise was shot on a softball field because of his politics. The violent conduct is wrong, but you never know what will trigger that conduct, and examples are everywhere. There are many unstable people out there who can blow up over lots of things.

The bottom line is that if you make a statement criticizing somebody’s viewpoint on a highly controversial issue, it may not be hard for somebody suing you under the bill to show that it’s “reasonably likely” somebody else will try to harm or stalk that person.

The final requirement to be at risk of liability under the bill is that your statement in fact results in significant economic injury or emotional distress to the person you talked about, or causes that person or his household to fear serious bodily injury or death, or causes the person whose information is published to suffer a “substantial life disruption.”

Again, isn’t some of that precisely your purpose when you criticize somebody by name, even though you wish them no bodily or criminal harm?

And “substantial life disruption” is enough to satisfy this requirement? Publications like Wirepoints and many of you on the internet often write about the doings of politicians we hope will suffer substantial life disruptions – like getting a different career.

On that point, keep in mind that the bill would protect politicians and all other public officials from its overly broad notion of doxing. Sure, politicians shouldn’t have things like their home addresses broadcast when they are criticized, but it’s entirely appropriate to post their names and contact information along with criticism of their conduct. Doing so, however, would create the risk of liability for doxing under the bill.

Also keep in mind that truth is no defense to liability under the bill. If the elements described above are met, you could get sued no matter how accurately you stated the facts.

If you write something on the internet or elsewhere that runs afoul of the overly broad standard of doxing described above, you could be sued, if the bill becomes law, for actual damages sustained by the person you wrote about, plus attorneys’ fees.

The Illinois ACLU opposed HB 2054 because it is too broad and unconstitutionally infringes on free speech, as reported in March. I confirmed with them Saturday that they still oppose the bill, despite some improvements made to it earlier in the process.

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Illinoisans, like everyone, should be free to speak up with no fear of liability, subject only to recognized exceptions to the First Amendment. That right includes calling out particular individuals by name if they are promoting ideas you oppose. HB 2054 will undermine that right.

The bill is yet another part of the assault on free speech underway nationally. That assault is being waged primarily by today’s left, so it’s no accident that most of the bill’s sponsors, listed here, are from the left. Their assault often takes the form of efforts to suppress what they like to call “hate speech,” which in fact is often just speech they don’t like, but they can’t get away with that because even true hate speech is constitutionally protected. This bill is a backdoor effort to get around that constitutional protection, and we can expect the left will use it as a weapon to sue over speech they don’t like.

However, do not blame the left entirely for HB 2054: Every Republican in the House and Senate who voted on the bill also approved it. You have to wonder whether they understood what they voted for.

The bill is horribly misguided and will not stand up in court. Hopefully, Governor Pritzker will see that and veto it.

*Mark Glennon is founder of Wirepoints.