January 25, 2007 4:07 PM PST
Bill would stiffen penalties for crimes posted online
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Troubled by what he called a "recent trend of posting videotaped attacks onto Web sites like MySpace," Rep. Mario Diaz-Balart, a Florida Republican, proposed on Wednesday requiring states to consider such behavior when issuing sentences. The idea behind the proposal is to curb the use of such videos "to further humiliate the victims as well as spread fear and intimidation," he said.
One example has received substantial publicity. Last week, police in Long Island, N.Y., arrested three high school girls accused of videotaping themselves kicking and punching a 13-year-old girl and then posting the footage to YouTube, Photobucket and MySpace, according to published reports.
"These attacks are bad enough," the congressman said in a statement. "We don't need to promote them throughout cyberspace."
Diaz-Balart's three-page bill, called the Web Video Violence Act (PDF), would essentially force states to consider elevating sentences for adult and juvenile defendants convicted of violent crimes "against the person of another" if the convict was "found to have placed, or directed another to have placed, a video or image of the commission of such crime on the Internet." It would be up to the states to decide what extra penalties to impose.
States could opt out of the requirement, but only if they didn't mind seeing the government dock as much as 10 percent of federal grant funding designed for crime fighting-related purposes.
It's unclear is how police will react to the idea. After all, in the Long Island case, police credited the widely circulated video of the assault, allegedly posted by the culprits or a close associate, for helping them make their arrests. Police organizations contacted by CNET News.com Thursday declined to comment on the bill.
What's also uncertain is whether such a proposal would comply with the First Amendment, which generally prohibits government censorship. Courts have permitted restrictions on speech in areas like child pornography, but have taken dimmer views of violence-related restrictions.
Courts have even ruled in favor of free expression rights for those who admitted to committing crimes. In 1991, the U.S. Supreme Court said a New York law that amounted to imposing financial penalties on people who wrote books or produced other works talking about their crimes violated the First Amendment.
That case, Simon & Schuster v. New York Crime Victims Board, revolved around a book written by admitted mobster Henry Hill. State law required that any firm that engages in such deals with a person who was accused of, convicted of, or admitted to committing a crime must divert all money that would have gone to the author into a special fund for victims.
On the other hand, the bill may not be problematic because judges are generally allowed to consider a convicted person's speech as one of the "aggravating factors" when issuing sentences, said Eugene Volokh, a law professor at the University of California at Los Angeles.
Sentencing decisions often hinge on things like a convict's character and dangerousness, so publicizing criminal exploits online "suggests that he's not ashamed or contrite about his actions," Volokh said.
"I suspect that, if the bill were passed and then challenged in court," Volokh added, "courts would find that publicizing one's crimes is so closely linked to one's bad character that sentence enhancements based on such speech don't violate the First Amendment."
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