Illinois ‘anti-doxing’ bill becomes law – the latest attack on free speech – Wirepoints

By: Mark Glennon*

Gov. JB Pritzker recently signed the Illinois Civil Liability for Doxing Act. But do not blame him or his party alone for this misguided, unconstitutional legislation. Astonishingly, it passed unanimously in both the Illinois House and Senate.

You’re now at risk of liability under the law for writing or sharing in any manner even truthful, simple facts. The law will stifle constitutionally protected speech and will be a tool for political abuse.

The new law lets those who are doxed bring lawsuits for damages against the doxer, subject to certain broad, vague requirements described below.

“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 that’s not the definition in the new law. The law is over-broad, going far beyond the malicious conduct normally associated with doxing. To understand, imagine doing any of the following -– things you would think surely could not expose you to liability for doxing. Then we will check through what the law says is required to make you liable, which probably will surprise you.

• You write on social media, “Look at Sam Smith’s Facebook page. He says he couldn’t care less about the victims of the Highland Park mass murder and that the right to own assault weapons is God-given.”
• You send out a group email with a copy of a pamphlet from a local Communist Party chapter showing their members’ names.
• You publish on the internet the names of the three Illinois lawmakers with the most extreme views on abortion along with your reasons why.
• You write a column that you post on the internet naming certain public school teachers you think are exceptionally bad for promoting critical race theory and gender alteration for minors, along with your reasons why.

Now, here’s what the new law requires to put you at risk of being sued for any of the above.

√  First, the law says you must have “published” the doxed person’s “personally identifiable information” without their consent.

But that’s nothing at all. “Publishing,” under the new law, means circulating information in any manner, including posting something on the internet. And “personally identifiable information means as little as somebody’s name in combination with either their education, gender, email address or a list of other things. It need not be something confidential or highly personal.

√  Second, to be liable, the new law says you must publish the information “with the intent it be used to harm or harass.”

That’s not much protection against liability because it need not have anything to do with physical harm, and intent to cause some level of harm is common. When you criticize or ridicule somebody on the internet, aren’t you hoping they suffer in some manner? Isn’t that usually the whole point? Maybe you hope their professional reputation suffers, or they get fired or passed over for a promotion, or that their business loses customers, or they don’t get admitted to some private club or school or, if they are politicians, that they lose votes.

You might easily have said something elsewhere that could be used against you to prove your intent, such as “I hope he gets fired,” or “nobody should go to his store.”

Most importantly, that standard for intent is directly at odds with established free speech law. 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.]

√  Third, to establish your liability, the law requires that you publish the information “with knowledge or reckless disregard that the person whose information is published would be reasonably likely to suffer death, bodily injury or stalking.”

That’s potentially the most important protection from liability in the new law, but it’s not as strong as it appears.

First, note that it doesn’t require that the doxing actually result in death, bodily injury or stalking, which is addressed below. It only requires that you knew or had reckless disregard that such harm “would be reasonably likely” to happen — theoretically.

It’s probably more likely than you think that somebody somewhere would, theoretically, blow up over what you publish and physically harm or stalk a person you criticize over an emotional or politically hot topic.

For proof, consider new research published by the University of Chicago Project on Security and Threats showing that support for violence to achieve political results is frighteningly widespread. Based on a major, national survey, they concluded that 44 million American adults support violence to coerce Congress or government officials, 18 million adults support violence to restore Donald Trump to the presidency and 31 million say violence is justified to restore abortion rights. Support for violence to coerce Congress and government officials was disbursed close to evenly by party identification. On the other two matters, support for violence split by party in the way you’d expect.

With baseline support for violence that widespread, it can be plausibly argued that we should all know that publishing names associated with controversial issues is reasonably likely to result in one individual becoming violent or stalking a person whose name is published. Deranged and irrational people are everywhere.

That third requirement for liability again runs afoul of First Amendment law. Speech that disregards the possible consequence of physical harm is still protected unless it is directed at inciting or producing imminent lawless action, the Supreme Court says.

√  Fourth, to be liable, the new law says the information you published must in fact result 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.”

In other words, the actual consequence need not be physical harm or stalking. It’s as vague as “emotional distress.” Again, isn’t some of that precisely your purpose when you criticize somebody by name, even though you wish them no bodily harm?

Now, apply those four requirements for liability to the bullet list of examples above and you should see that, in each case, you could indeed be at risk of liability for doxing over things you’d think are routine and lawful.

Keep in mind that truth is no defense under the new law. Liability for doxing in no way depends on whether you publish provable facts, even facts that can be found from other sources.

To put this in real life, the fourth example I gave above is an actual example. After I last wrote about this, when the law was a bill in the General Assembly, I got a call from an activist who publishes regularly. She asked if she could potentially be sued if she wrote a column naming certain public school teachers who are particularly outspoken about their teaching critical race theory and gender alteration for minors in the classroom.

She is peaceful, professional and carefully supports her writing with facts, but I told her that didn’t matter. If somebody angered by her column, even if they are deranged and irrational, physically harmed or stalked one of the teachers, a lawsuit against her might indeed result.

She chose not to publish her column.

That’s what the Supreme Court says is “chilling” free speech and a violation of the First Amendment. The new law impermissibly stifles free speech and goes far beyond restricting malicious forms of doxing.

*Mark Glennon is founder of Wirepoints.