Oregon Law Review : Vol. 90, No. 1, p. 303-334 : Cyberstalking and Free Speech: Rethinking the Rangel Standard in the Age of the Internet
Each month, it seems, there are many new technological gadgets, hundreds of new smart phone applications, and Facebook changes that allow for increased information sharing and social contact. While such technological advances can make our lives easier, provide for greater creative expression, and encourage more expansive sharing of ideas and thoughts, such improvements may lead to negative consequences that must be addressed. Like other forms of cyber-victimization, cyberstalking presents unique problems that make it difficult for existing laws and law enforcement to adequately respond to and prevent criminal activity that is conducted using the Internet and other technological media. For example, cyberstalkers can easily remain anonymous online, and they can also take on the identity of their victims or any other third parties as a means to increase fear in the victims. Furthermore, because of the virtual context of cyberstalking, victims may be completely unaware of the perpetrator’s physical location—thereby potentially causing more fear and uneasiness in the victim. In addition, along with the numerous law enforcement difficulties that cyberstalking has created, cyberstalking has altered the landscape of free speech litigation as it pertains to the crime. Courts and American society more generally have long regarded the First Amendment as one of the primary hallmarks of the Constitution. There are, however, several forms of expression that the First Amendment and its state constitutional counterparts do not protect because of their potential danger to society—such as threats, child pornography, and incitement to unlawful action. This Comment explores how lawmakers can tailor laws or create new legislation to effectively respond to the dangers of cyberstalking while adhering to the American commitment to free speech; this Comment narrows its analysis of this issue to Oregon law specifically.