Arizona House Bill 2549—a controversial bill intended to suppress online and electronic stalking, harassment, and cyberbullying—was pulled from further consideration by one of the legislation’s sponsors in response to nationwide concerns the proposed legislation abrogated First Amendment speech protections.
“The Internet Censorship Bill” was passed by the Arizona House of Representatives on March 29 and sent to the Senate. The bill subsequently passed out of the Arizona Senate Rules Committee and was recommended for a full Senate vote by both the Democrat and Republican caucuses. The Senate amended the bill and sent it back to the House, where bill sponsor Rep. Ted Vogt (R-Tucson), responding to widespread negative criticism, stopped the bill from moving forward in order to address the First Amendment concerns.
Rebecca Jeschke, media relations director and digital rights analyst at the San Francisco-based Electronic Frontier Foundation, says the bill is unconstitutional. “It tries to outlaw speech that the First Amendment clearly protects. There is no constitutional requirement that we pass a government’s politeness standard in order to exercise our free speech rights,” she said.
Restricting Free Speech
HB 2549 expands Arizona’s law governing telephone harassment to include electronic devices and the Internet. Other groups protesting the bill include Media Coalition, a First Amendment advocacy organization, the Motion Picture Association of American, and the Recording Industry Association of America.
“[G]iven the First Amendment, the government may not restrict such speech on blogs, e-mail discussion lists, and newspaper Web sites,” wrote University of California Los Angeles Constitutional Law Professor Eugene Volokh in a blog post. “If the Arizona Legislature wants to apply the ban on telephone harassment to other one-to-one devices, such as text messaging or e-mails sent directly to a recipient, it may well be free to do so…. But the just-passed bill has no such limitation, and thus poses the danger of restricting a great deal of speech that is protected by the First Amendment.”
Jeschke notes the sentence from the U.S. Supreme Court’s 1941 Bridges v. California decision: “[I]t is a prized American privilege to speak one’s mind, although not always with perfect good taste,” which also was quoted in the majority decision written by U.S. Supreme Court Justice William J. Brennan in 1964’s New York Times Co. v. Sullivan.
Jeschke added, “There are already anti-harassment laws on the books, as well as laws that cover libel and privacy.” She says she doubts the bill “could withstand any judicial scrutiny. There has already been an outpouring of legal analyses online, all of it concluding this bill is flatly unconstitutional.”
No Offense Intended
Media Coalition wrote a letter to Arizona Gov. Jan Brewer on March 29, asking her to veto the bill. “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 letter states.
“‘Lewd’ and ‘profane’ are not defined in the statute or by reference,” the letter explains. “‘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.”
The letter continues: “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.”
Bruce Edward Walker ([email protected]) is managing editor of InfoTech & Telecom News.
“A Crime to Use ‘Any Electronic or Digital Device’ ‘And Use Any Obscene, Lewd or Profane Language’ ‘With Intent to … Offend’?” Eugene Volokh, The Volokh Conspiracy, March 31, 2012: http://volokh.com/2012/03/31/a-crime-to-use-any-electronic-or-digital-device-and-use-any-obscene-lewd-or-profane-language-with-intent-to-offend/
“Request for Veto of House Bill 2549,” Media Coalition, March 29, 2012: http://mediacoalition.org/mediaimages/AZ%20HB%202549%20Letter%20to%20Governor%20Brewer%20requesting%20veto%203%2029%202012.pdf
“Arizona House Bill 2549—The Internet Censorship Bill,” Rep. Ted Vogt, January 2012: http://www.keytlaw.com/blog/2012/04/arizona-hb-2549/