Monday, April 2, 2012

Today in Really Stupid Bills in the Arizona Legislature

Posted By on Mon, Apr 2, 2012 at 12:06 PM

While I personally like the idea of sending in the authorities anytime one of you pesky profanity-using denizens of the comment section "annoy" me, I suppose the argument could be made that I might be accused of the same (potentially) illegal behavior under HB 2549, which looks to make the use of "any obscene, lewd or profane language" with the "intent to terrify, intimidate, threaten, harass, annoy or offend" unlawful. Thankfully, I don't swear all that often, so I might be in the clear.

Now, what possible unintended consequences could a bill with that sort of language create? Let's see what UCLA law professor Eugene Volokh (and person who actually understands the internet) has to say:

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.

Yes, this bill seems to be an attempt to modernize laws defining "disturbing the peace" for the online age, but the language is so incredibly vague, I don't think I personally would trust the best intentions of law enforcement in this state to enforce this sort of law sanely. Just think of the field day Joe Arpaio could have with the blogs at the Phoenix New Times or what Tom Horne might think of the comment section over at Three Sonorans.

Thanks, Arizona Legislature, for giving our state another set of expensive court battles to look forward to.

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