The Petraeus Affair Affair is salacious stuff. It also, naturally, raises a lot of questions about privacy. But there’s also an interesting First Amendment angle underneath the sensation: why did the FBI investigate Paula Broadwell—the Petraeus biographer and paramour who allegedly sent “harassing” emails to Tampa housewife Jill Kelley—in the first place? The Daily Beast reported Tuesday that none of the Broadwell emails contained “overt threats,” and really amounted to “cat-fight stuff” (a source’s words, not mine). Further, it appears the email that initially prompted Kelley to go to the FBI (titled “kelleypatrol”) was forwarded by General Allen, not sent directly. And, apparently, prosecutors expressed doubt that any of the emails constituted a threat.

I’m guessing that these discussions arose in the context of the federal “cyber-stalking” law, which I wrote about here and here. If, in fact, the underlying Broadwell emails were merely “cat-fight stuff,” FBI reliance on the cyber-stalking statute to conduct the investigation would highlight the serious dangers inherent in laws that sweep too broadly in their attempt to get at potentially threatening speech.

It is certainly true that you don’t have a constitutional right to physically threaten someone. One of the very few categories of speech that the Supreme Court has consistently held to be outside the scope of the First Amendment’s protections is the “true threat.” But, the actual definition of a “true threat” is narrow, as it should be. In many of the cases discussing the proper definition, courts have identified a few limitations to prevent “true threat” doctrine from reaching protected speech. These include requirements that (1) the speaker intend to communicate a threat, (2) that the threatened harm be reasonably immediate (it can’t be “I’m going to get you one of these days”), and (3) that the person receiving the threat have an objectively reasonable basis to believe it will be carried out (in other words, the victim can’t be oversensitive).

Despite these judicial limitations, in the age of the internet, legislators often introduce two problems into cyber-stalking and cyber-harassment laws. One, such laws are often drafted very broadly to cover speech that is either purely private (think about keeping a diary on your computer) or totally public (tweeting or blogging where the intended recipient can “avert her eyes,” sometimes called “one-to-many” speech to distinguish it from one-on-one communications).

The second problem—which is at issue in the Petraeus Affair—is when the laws are written to cover speech other than direct physical threats (or physically threatening intimidation or harassment, as when a stalker stalks a target). Under current federal law, you can be prosecuted for speech that is intended to and results in “substantial emotional distress,” which is undefined and has been used by prosecutors to cover merely offensive or uncomfortable speech. If I had to guess, I imagine that the lawyers looking at the emails told the FBI that there was a weak but colorable case that the Broadwell emails qualified as emotionally “distressing.” (It is true that the federal statute reaches “harass[ing]” and “intimidat[ing]” speech, though the number and nature of the emails here seems inconsistent for a pattern of true harassment, and intimidation usually requires some kind of physical threat, even if implied.)

Expanding cyber-stalking law to speech that is merely uncomfortable (as opposed to a true threat of violence) is troubling in and of itself, but there’s one more potential scenario that’s also of concern: did the FBI use an overbroad cyber-stalking statute as pretext to engage in a wide-ranging counter-intelligence investigation? Successful cyber-stalking prosecutions tend to follow a typical pattern (and are often related, tragically, to underlying domestic abuse). Under the First Amendment, prosecutors probably shouldn’t proceed under a simple allegation of “emotional distress” absent some underlying intimidation, harassment or actual threat to cause physical injury. If the FBI loosely used the federal cyber-stalking law as an excuse for a massive fishing expedition under a bare emotional distress theory, that should be of serious concern to us all.

Details continue to emerge in L’Affaire Petraeus, and it’s possible the FBI and federal prosecutors used a different legal theory to conduct the investigation. Nevertheless, as we’ve already pointed out here, the scandal shows the dramatic sophistication of the modern surveillance state, and the cyber-stalking angle is just one piece of that larger troubling story.