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Provably annoying?

In response to the Perspectives column written by Declan McCullagh, "Create an e-annoyance, go to jail":

Interesting piece, Declan.

But on it's surface, it strikes me (at least, one would think, depending on the skill of the lawyer) as being completely unenforceable, isn't it? One tack a clever attorney might take is simply to refute the claim on grounds of intent: Judge: "You annoyed this person."
Defendant: "No I didn't. I sent him some information. That's all. Prove I intended to annoy him." Or, if taken at face value, that merely to "annoy" someone means guilt: J: "You annoyed this person. You're guilty."
D: "No I'm not." J: "What are you talking about? You sent/created it. They're annoyed. You're guilty of annoying them."
D: "No I'm not." J: "Please to explain..."
D: "I created legally material which they legally encountered. There is no empirical evidence that I annoyed this person." J: "But he SAYS he's annoyed. He looks annoyed."
D: "Oh, we're not disputing that. But of course, the mere fact of their annoyance is not proof that I was in any way involved in annoying them." J: "Wha---?"
D: "Well, think about it: Others have done/viewed the same and suffered no annoyance, therefore there can be nothing inherently annoying to the material itself, or that response would be universal." J: "Okaaaay."
D: This takes the entire question of the alleged 'offense' out of the realm of the objective (and therefore provable)-- J: "It does?"
D: "--and into the realm of the subjective and the individual American's right to choice and free speech. Annoyance was only one of countless responses available to the plaintiff. They could have chosen to giggle, for example, or to simply be ebullient. They may not even be annoyed but simply wish to exercise their right to say that they are.

We, of course, respect both their right to choose to be annoyed by things that are not provably annoyances and/or to speak about personal annoyances, whether factual or hypothetical, but we, of course, cannot be held accountable for the choices, even the wild and reckless emotional choices made by others."

"Uhhh, oh screw it. Let's just shoot him.
D: "I beg your pardon? J: I mean... Sure, we wanted a toehold on a thought crime bill, but I guess we'll just have to keep "disappearing" people who "annoy" us for a while yet." Or would that not work in the U.S.? If not, there's still an upside. Just think of all the politicians whose blatant lies (or merely whose agendas) annoy the constituents who may receive information about them electronically? Could be a chance to clean house entirely. Of course, if it ever happened up here in Canada, we could finally dispose of the Bloc Quebecois.

Todd McGinnis
Toronto