New Arizona Law Seeks To Purge All Mean Words From The Internet

A bill that may become law in Arizona could make your Internet comments a crime.

Apparently having solved all of their other problems, the Arizona legislature has passed a bill that, if it becomes law, would ban a wide range of commentary from the Internet in an effort to combat so-called “cyber-bullying’:

The state of Arizona could find itself in the company of countries like China and Syria for censoring the Internet if the state’s governor signs a bill recently passed by the legislature.

Arizona House Bill 2549, which is now on Gov. Jan Brewer’s desk for signature, was created to counter bullying and stalking. The law would make it a crime to use any electronic or digital device to communicate using “obscene, lewd or profane language” or to suggest a lewd or lascivious act, if done with the intent to “terrify, intimidate, threaten, harass, annoy or offend.”

Here’s what the bill actually says:

It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use a telephone 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.

Eugene Volokh explains just how far reaching this bill, which apparently is apparently intended to amend an existing law barring telephone harassment, would actually be if enacted into law:

Telephones are basically one-to-one devices, so a phone call that uses profane language to offend is likely meant only to offend the one recipient, rather than to persuade or inform anyone; but computers used to post Facebook messages or send Twitter messages or post blog items can offend some listeners while persuading and informing others.

So, under the statute, posting a comment to a newspaper article — or a blog — saying that the article or post author is “fucking out of line” would be a crime: It’s said with intent to offend, it uses an electronic or digital device, and it uses what likely will be seen as profane language (see, e.g., City of Columbia Falls v. Bennett (Mont. 1991)). Likewise if a blog poster were to post the same in response to a commenter’s comment. Likewise if someone posts something in response to an e-mail on an e-mail-based discussion list, or in a chatroom, or wherever else. (Note that if “profane” is read to mean not vulgarly insulting, but instead religiously offensive, see City of Bellevue v. Lorang (Wash. 2000), then the statute would be unconstitutional as well.)

The same would be true if someone posts something lewd in one of these places in order to annoy or offend someone, for instance if he posts a comment on a police-run public discussion page that says something like “the chief of police can suck my dick,” to borrow subject matter from a prior Arizona telephone harassment case. And note that, given that case, the speech need not even be about one of the recipients, so long as it’s intended to annoy or offend one of the recipients.

There’s no question that commentary on the Internet can sometimes get overheated, and that’s even more true at high-traffic web sites and sites with commenting systems that allow people to post anonymously. Here at OTB, we try to police the comments as best we can and have been known to enforce the comment policy where appropriate. However, I fail to see why a comment that may be offensive, annoying, or profane should subject anyone to criminal liability. Advocates of a bill like this will likely say that this is meant to combat people who threaten or harass people online. However, it’s already illegal to threaten someone with physical harm in any forum, including online. Indeed, we’ve seen several cases in recent years where people who posted idiotic comments about the President that could theoretically be seen as threatening received a little visit from the Secret Service. To the best of my knowledge, none of those cases has ever resulted in charges being brought against someone, most likely because the agent investigating the matter determined that the post was just a dumb comment left in an online forum by an idiot. Even in the the case of civilians, though, if someone posts a threat online to cause physically harm someone or engages in behavior that can be classified as stalking, they can already be charged under existing laws. There’s no need for a broad statute like the one Arizona is considering.

Moreover, even if this were a legitimate attempt to combat online threats and stalkers, from where does the state get the authority punish speech that may “annoy or offend” someone else? Since when did we start living in a world where people have a right not to be annoyed or offended? More importantly, how exactly to determine when a written communication is “annoying” or “offensive,” if that’s a question for a jury then do they use their own standards or the peculiar standards of the person who may have been the intended recipient of the message? And what if it’s a public forum, who exactly is the intended recipient? If I leave a message in a comment section on a blog am I potentially subjecting myself to criminal liability by “annoying or offending” someone who just happened to wander by and read the post and comment thread?

Jonathan Turley puts it this way:

We have long recognized that free speech comes with bad speech and good speech. Yet we have refused to allow the government to sort out those two categories. As Justice Brennan stated in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), we must remain faithful to “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The addition of an intent factor is meaningless under this law when the mere intent to “annoy” or “harass” is enough to satisfy scienter. The law would sweep away protected speech and allow arbitrary enforcement of terms that are not only undefined but undefinable in the context of Internet speech.

The solution for bad speech is more speech not more regulation of speech.

Indeed. Perhaps the most shocking thing about this bill is that it made it all the way two chambers of the legislature, passing both Chambers with only a single “Nay” vote in the House of Representatives, without anyone even considering the fact that this bill is quite obviously unconstitutional. What the heck is in the water down there in Arizona?

In any event, the bill is now with Governor Jan Brewer. One would hope she’d veto it but I’m not optimistic.

FILED UNDER: Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Ben Wolf says:

    Amazing how much free time Arizona politicians have.

  2. Yes, to “annoy or offend” pretty much cuts out a substantial amount of blogging and blog comments.

    Seriously, though: there is a profound bit of authoritarian thinking in American politics at the moment that I find rather disturbing.

  3. Chad S says:

    Arizona is also debating a law which would declare women “pregnant” as long as they’re ovulating for purposes of restricting abortion. The post-20 week abortion ban, but they would declare that the clock for those 20 weeks starts right after a menstrual cycle ends.

  4. Tsar Nicholas says:

    It’s time for a refresher course in AZ on the 1st Amendment.

  5. mattb says:

    This is an unfortunate reminder that both sides of the aisle are often guilty of trying to legislate behavior in the name of “feel good” safety.

  6. @mattb:

    Indeed. It appears that this bill just sailed through both houses of the legislature and had bipartisan sponsorship

  7. grumpy realist says:

    @Chad S: Also seems we should send them back to school to learn basic facts of biology, as well.

  8. ernieyeball says:

    I will be very annoyed and extremely offended if Governor Brewer signs this bill. An event I’m certain will be reported on the internet.
    I will be filing a complaint against her with the proper AZ authorities in hopes she will be prosecuted.

  9. Franklin says:

    @Chad S: That’s actually a standard marker for when doctors predict due dates. It would be more accurate to use 38 weeks from the actual conception date, but since that isn’t typically known, they use the previous menstrual cycle plus two weeks to estimate the ovulation date. And then 38 weeks from there, the baby is supposed to arrive.

    So you’re apparently just arguing about whether the law should be 18 or 20 or 22 weeks, rather than arguing for or against the law in general.

  10. Tsar Nicholas says:

    @ernieyeball: You’re being sarcastic, right? FYI, although this bill is a total abomination nobody is going to “prosecute” Jan Brewer if it becomes law. Government officials such as governors completely are immune from criminal prosecution for engaging in the ministerial official acts of their offices, i.e., signing bills.

    In any event, getting back to this bill, has there ever been a proposed statute so obviously in violation of free speech principles? There also are due process issues. It’s probably void for vagueness. I’m trying to think of something that recently was passed and was this legally infirm, but honestly I can’t. This bill so obviously violates at minimum the 1st Amendment it’s not even funny. Hell, a 1L student on a vodka and ganja bender could figure out this bill is unconstitutional. How did this train wreck of a bill get through two chambers of a state legislature without any serious opposition?? Unbelievable.

  11. steve says:

    Doug- They are short on water down there. I suspect it is just that the quality of the peyote is down.

    Steve

  12. Janis Gore says:

    Well, f**k Arizona.

  13. It should be noted that radios are electronic devices. How long will Rush Limbaugh be on the air if he can be charged with a crime anytime he intends to “annoy or offend” someone?

  14. @Stormy Dragon:

    That’s actually a good point. And as much as I dislike Limbaugh and his rhetoric, I don’t want to see the state charging him with a crime for what he says.

  15. Brummagem Joe says:

    This isn’t going to be as easy as purging all the illegal immigrants from Arizona.

    How did this train wreck of a bill get through two chambers of a state legislature without any serious opposition?? Unbelievable.

    Easy Nicko…your party control both houses…this is the theocracy for which you yearn…what you whining about…LOL.

  16. Tsar Nicholas says:

    @Brummagem Joe: So you’re saying that the Democrats in the AZ legislature all went catatonic at once or that they’re so meek and in such slavish awe of their Republican masters that they couldn’t muster even token opposition to this bill? Is that what you’re saying? Joe, are you calling your Democrat brethren in AZ a cadre of bootlickers? Wow.

    (Incidentally, Joe, as an atheist the only “theocracy” for which I yearn is the absence of the same.)

    Anyways, getting back to this bill, and borrowing from Spinal Tap, I believe the answer to my earlier query is: none; none have been more unconstitutional.

  17. Janis Gore says:

    But it is pretty damned naughty to drive a classmate to suicide because he/she doesn’t fit. Long before the advent of the Internet I saw at least four die of suicide n my high school of about 600 out of pure meanness.

  18. @Brummagem Joe:

    Joe what part of there was only one no vote in the entire legislature didn’t you get?

    There are 9 Democrats (out of 20) in the AZ Senate and 20 Democrats (out of 60) in the House.
    Even assuming that the one member of the House that voted no was a member of your party that still doesn’t look so good.

  19. Janis Gore says:

    Back that up to three: one because he was a nerd, one because she was the loveliest slut, and one because he was gay. Juan died because he was driving a motorcycle across an airport and was beheaded when a small plane came in.

    God, teenagers are stupid.

  20. Brummagem Joe says:

    @Tsar Nicholas:

    or that they’re so meek and in such slavish awe of their Republican masters that they couldn’t muster even token opposition to this bill?

    Yep Nicko (and Doug) that would just about sum it up. I know you two aren’t exactly the sharpest knives in the drawer when it comes to political reality but in a house where you’re in a substantial minority what’s the point of voting against a feel good law like this that you know it’s going to be overturned. Are you guys still in short pants?

  21. @Janis Gore:

    I don’t mean to be ghoulish but if you’re going to go, driving a motorcycle across an airport and being beheaded by a small plane is among the cooler ways to go.

  22. @Brummagem Joe:

    Nice how you find easy ways to excuse stupid votes by your compatriots. This is why I love being an independent.

  23. Janis Gore says:

    He was pretty cool. I had a crush. Remark, I remember his name.

  24. G.A says:

    Well, f**k Arizona.

    🙂

  25. Brummagem Joe says:

    @Doug Mataconis:

    Nice how you find easy ways to excuse stupid votes by your compatriots.

    Nothing stupid about it. Politically it was entirely rational. It’s politics 101 for godsake.

  26. Nikki says:

    @Chad S: So now we are being declared perpetually pregnant. New State Motto:

    Arizona, where the women are just a womb.

  27. Jon Stewart’s comment a couple nights ago was that “Florida and Arizona are locked in a harms race”

    … speaking of which, The Daily Show would definitely be off cable in Arizona!

  28. Tsar Nicholas says:

    @Brummagem Joe: So you’re a member of the bootlicker guild? Wow. Let me get this straight, Joe, because perhaps I’ve overestimated you: If you’re in the minority in a legislative chamber you’d just roll over and play dead. The opposition brings forward a bill with so many constitutional problems there are law professors committing hari kari in the chamber, but, hell, you’re in the minority and you’re a graduate of “politics 101,” so you just say: “OK, masters, I’ll kneel and fellate this bill upon command, like the bitch that I am.” Really?

    Come on, man, if not for your party at least show a little spine for your own sake. Republicans sure as hell might be stupid, but at least when they’re faced with a bill they don’t like they have the courage of their convictions to vote against the bill.

  29. KariQ says:

    I suspect that the only reason there was only one “no” vote was because at least some of legislators knew it was unconstitutional and would be struck down by the first court to take a look at it, and they figured voting for it was easier than taking the risk of some ad saying “so-and-so supports internet bullying” or whatever. Not a courageous stand, but a pragmatic one.

    And this goes for members of both parties, by the way. I’m sure there were Republicans who thought this was stupid as well as Democrats. No reason to point fingers at either party when it comes political cowardice.

  30. wr says:

    @Steven L. Taylor: “Yes, to “annoy or offend” pretty much cuts out a substantial amount of blogging and blog comments”

    Well, it certainly covers everything Jenos ever posted…

  31. merl says:

    How will they enforce an Arizona law in Washington State? They won’t because they can’t. But at least that would shut down almost every wingnut blog.

  32. Brummagem Joe says:

    @Tsar Nicholas:

    So you’re a member of the bootlicker guild?

    Nicko….the operatic language is very entertaining but like you it doesn’t have much contact with reality.

  33. KariQ says:

    @merl:

    Indeed. It shows a shocking lack of understanding of both the Constitution and the internets.

  34. Nikki says:

    @Brummagem Joe: Personally, I believe you’re fighting a losing battle. When a politician has reached the point where it’s considered “better optics” to pander to a clearly unconstitutional piece of legislation, much less vote for it, that politician deserves every ounce of scorn and derision that may rain, party be damned.

  35. wr says:

    Could someone post a link to any reputable site that shows only one vote against the bill? Doug’s link only links back to OTB, and Google searching shows me nothing about vote totals.

  36. Brummagem Joe says:

    @Nikki:

    When a politician has reached the point where it’s considered “better optics” to pander to a clearly unconstitutional piece of legislation, much less vote for it, that politician deserves every ounce of scorn and derision that may rain, party be damned.

    Politics as you may have noticed is largely about optics. Politics rather like economics is not a morality play.

  37. Ron Beasley says:

    The good news is that in the not too distant future Arizona will run out of water and air conditioning will become too expensive so all the anglos will leave. Phoenix will become another Arizona ghost town.

  38. Just 'nutha ig'rant cracker says:

    @Steven L. Taylor: Yes, but at least it’s authoritarian thinking that seeks to make the nation better, not like all that authoritarian thinking on the left that led to politically correct speech (and stuff like that there).

  39. An Interested Party says:

    Yes, but at least it’s authoritarian thinking that seeks to make the nation better

    Authoritarian thinking never makes any nation better…

  40. walt moffett says:

    @wr: The Arizona Legislature might be a place to start. Link is to a summary page for HB2549. There’s even video

  41. Vast Variety says:

    Holy Police States Batman!

  42. Bennett says:

    @Doug Mataconis: I think you love being an independent because you get to call everyone stupid and never have to take any responsibility.

  43. LC says:

    Well, that’s one way to shut down Fox’s comment section.

  44. Ron Beasley says:

    @LC: Good one LC

  45. G.A says:

    Authoritarian thinking never makes any nation better…

    lol, some one better tell Obama and his old lady….

  46. Ben Wolf says:

    I don’t mean to be ghoulish but if you’re going to go, driving a motorcycle across an airport and being beheaded by a small plane is among the cooler ways to go.

    Make this man Speaker of the House, if only because he has a good sense of the dramatic.

  47. J-Dub says:

    Can we move the Republican’s electrified border fence a little north, say, above AZ?

  48. rodney dill says:

    Heh, well that would hamstring many commentors here….

  49. Offended says:

    This law already exists in North Carolina so all the crazies (did that offend anyone?) are not in AZ.. Constitution??? WHAT’S THAT???

  50. george says:

    Is this before or after they legislate pi to be equal to exactly 3?