Remember that slightly risque cartoon you posted on Facebook? Remember that time you retweeted something that could be offensive to some? Remember that email that your Tea Party cousin sent to his entire address book? If you or your cousin live in Arizona, you could be criminals, at least according to a law that recently passed in the Grand Canyon State.
The bill, HB 2549, is an attempt to update an existing law which makes telephone harassment illegal. The problem, though, is that it dramatically broadens the scope, making it potentially criminal to even marginally offend someone when they aren’t even the target of the “offensive” communication. Section one of the law is so vague, that in theory, a person could be prosecuted because a friend of a friend of a friend found a Facebook post offensive. Section one, pargraph A reads (emphasis added):
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 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. It is also unlawful to otherwise disturb by repeated anonymous electronic or digital communications the peace, quiet or right of privacy of any person at the place where the communications were received.
Perhaps more significantly, it could criminalize satire. Rush Limbaugh, instead of facing free-market consequences, could face criminal prosecution. While some liberals might applaud that, the same law could also silence Jon Stewart, Stephen Colbert and Bill Maher.
H.B. 2549 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 intent to “annoy,” “offend,” “harass” or “terrify.” The legislation offers no definitions for “annoy,” “offend,” “harass” or “terrify.” “Electronic or digital device” is defined only as any wired or wireless communication device and multimedia storage device. “Lewd” and “profane” are not defined in the statute or by reference. “Lewd” is generally understood to mean lusty or sexual in nature and “profane” is generally defined as disrespectful or irreverent about religion or religious practices.
Government may criminalize speech that rises to the level of harassment and many states have laws that do so, but this legislation takes a law meant to address irritating phone calls and applies it to communication on web sites, blogs, listserves and other Internet communication. H.B. 2549 is not limited to a one to one conversation between two specific people. The communication does not need to be repetitive or even unwanted. There is no requirement that the recipient or subject of the speech actually feel offended, annoyed or scared. Nor does the legislation make clear that the communication must be intended to offend or annoy the reader, the subject or even any specific person.
Speech protected by the First Amendment is often intended to offend, annoy or scare but could be prosecuted under this law. A Danish newspaper posted pictures of Muhammad that were intended to be offensive to make a point about religious tolerance. If a Muslim in Arizona considers the images profane and is offended, the paper could be prosecuted. Some Arizona residents may consider Rush Limbaugh’s recent comments about a Georgetown law student lewd. He could be prosecuted if he intended his comments to be offensive. Similarly, much general content available in the media uses racy or profane language and is intended to offend, annoy or even terrify. Bill Maher’s stand up routines and Jon Stewart’s nightly comedy program, Ann Coulter’s books criticizing liberals and Christopher Hitchens’ expressing his disdain for religion, Stephen King’s novels or the Halloween films all could be subject to this legislation. Even common taunting about sports between rival fans done online is frequently meant to offend or annoy and is often done using salty and profane language.
While protecting people from harassment is a worthy goal, legislators cannot do so by criminalizing speech protected by the Constitution. All speech is presumptively protected by the First Amendment against content-based regulation, subject only to specific historic exceptions.
Naturally, cyberbullying, cyberstalking and cyberharassment are real issues, and should be dealt with, but broad overreach is not the way to do it. In an era where creationism is being forced into schools and slavery is being written out of textbooks, is it a reach to suggest that the mere mention of science might be seen as criminally offensive? It’s doubtful that a law like this could pass Supreme Court muster, but today’s court has a history of legislating from the bench. No freedom can be taken for granted.
A similar law has already been passed in Tennessee.