The Latest Threat To The First Amendment

The latest threat comes out of Arizona, where Arizona House Bill 2549 has already, while the rest of us were not looking, passed both houses.

This thing will become law if Governor Brewer does not veto it.

So, what is so bad about this law?

The clear intent of 2549 is to give the police a tool to deal with cyber bullying and online harassment.

Make no mistake about it...these two things are a problem for many people. However, I have seen personal quarrels defined as 'harassment' online. Careful judgment needs to be used to determine whether somebody should be punished or just told to shut up and/or stay away from the person complaining about them.

However, right now, it is very hard to do anything about real, genuine problems. People have, in fact, been driven to suicide by cyber bullies.

The bill that Arizona has passed, however, is not the right tool.

So...here is the relevant portion of the law with analysis:

'It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use any electronic or digital device and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person'.

Read that and think about it for a moment. First of all, this bill has the problem of being based off of the nebulous concept of 'intent'. Intent is hard to prove and courts tend to err on the side of the plaintiff when its a grey area. How do you prove that somebody intended to threaten as opposed to intending a joke that the other person...or somebody watching...did not get?

The big issue, though, is the inclusion of the word 'offend'. Really? It is impossible to have real dialog and debate without offending somebody. I am sure I have written many things on the internet that somebody would consider offensive. I have read things that have made my blood boil. Any discussion of religion, politics or social issues will offend somebody. And any discussion that does not offend anyone is meaningless.

Ah, but what if you aren't in Arizona. Here's another quote.

'Any offense committed by use of an electronic or digital device as set forth in this section is deemed to have been committed at either the place where the communications originated or at the place where the communications were received'.

So, you don't have to be in Arizona. You don't even have to be talking to somebody in Arizona...you just have to say something publicly that offends somebody in Arizona.

And the penalty? A fine of up to $2,500 or up to six months in jail.

Arizona House Bill 2549 is blatantly unconstitutional and unenforceable. There is, of course, no way the Arizona cops could monitor the entire internet. It would only come up if there was a complaint.

However, if we do not speak up about these things and bring attention to the fact that they are poorly written and have unintentional consequences, then they will slip by. This bill violates the First Amendment by criminalizing legal speech.

I hope that there are some good judges in Arizona who will strike this thing down, but it sets a worrying precedent.

We need to protect our free speech rights. That does include the right to be annoying, offensive and even, on occasion, intimidating.

UPDATE: Five minutes after I posted this hub, the bill was apparently 'stopped' and it has not gone to the governor's desk after all. I'm leaving this up, however, as a reminder that legislators need to word bills very carefully if they want them to do what they intend...and nothing more.

UPDATE: I searched the web today, and have found no news on this more recent than April. I hope that means it is really dead.