Arizona legislators are expected to amend a controversial bill that experts say could stifle free speech online and violate the First Amendment. But free speech experts say the anticipated changes to the bill — which will be made before sending the legislation to Gov. Jan Brewer (R) — may not fix the major flaws in the proposal, which passed both legislative houses last week.
“The Internet would shut down if this bill were judged to be constitutionally sound — everything annoying or offensive said online would be caught up in it,” said Derek Bambauer, a professor at Brooklyn Law School who specializes in Internet law and may work with the Arizona ACLU to challenge the bill. “This is plainly unconstitutional.”
Arizona House Bill 2549 seeks to update an existing harassment statute that applies to telephone calls by expanding the law to include communication via “any electronic or digital device.” It additionally proposes to make it “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.”
Experts say that according to the current text of the bill, trying to annoy a friend with expletive-laden text messages mocking his or her favorite basketball team would be classified as a class 1 misdemeanor – which can carry a fine of up to $250,000 and a six-month jail sentence. Emailing a graphic video to friends with the intent to offend them would also be a criminal act, as would saying “go f— yourself” in an instant message conversation.
Legal experts argue that the proposed bill violates the First Amendment, offers a vague definition of exactly what speech would be prohibited, and stands to criminalize communication that is commonplace — and protected — online.
“It could sweep a lot of potentially protected speech into the criminal sphere. I’m not sure what ‘obscene,’ ‘lewd’ or ‘profane’ language is. Does that mean the law can be used to prosecute someone who forwards a bad joke?” said Roy Gutterman, the director of the Tully Center for Free Speech at Syracuse University. “The risk is that this heightened sensitivity can chill speech and cause people not to express themselves the way they might want to express themselves, even if it might offend someone.”
The Media Coalition, an advocacy group representing content creators such as the Motion Picture Association of America and the Recording Industry Association of America, has urged Brewer to veto the bill, which has also sparked outcry online from groups such as the hacker group Anonymous.
Three business days after the state legislature approved the bill, Arizona state Rep. Ted Vogt, the bill’s primary sponsor, told The Huffington Post that legislators now plan to amend the bill before sending it to Brewer. Though the revised text has not been released, Vogt said it will be changed to clarify that the law would exempt constitutionally protected speech, apply to situations in which “an individual is targeting another specific individual or group of individuals,” and specify that the communication must be “coupled with a course of conduct.”
“We’re updating a pre-existing law to recognize that we use different devices for communication now,” Vogt said. “If you are threatening me via email, or via instant message, or via the phone, what’s the difference? You are specifically threatening me and that’s the activity that this bill has gone after in the past and will continue to go after.”
Rep. Steve Farley (D-Phoenix), a co-sponsor of the bill, said that the proposed legislation offers a much-needed defense against threatening speech online and would be used primarily in domestic abuse cases.
“I know people are focusing on unintended consequences of the bill, but I don’t think that’s realistic,” Farley said. “I think this is a wakeup call that we should be civil online and in society in general. I don’t think it’s right we should ever be able to threaten violence against each other online.”
The bill was able to gather bipartisan support in the Republican-controlled Arizona legislature, which has seen constant divide between both parties in the last two years. The list of co-sponsors spans the ideological spectrum, including House Minority Leader Chad Campbell (D-Phoenix), who leans toward the liberal end, and state Rep. Terri Proud (R-Tucson), one of the more conservative legislators in the state.
Brewer’s spokesman, Matt Benson, said that the governor has not taken a position on the bill, which is awaiting a final legislative vote. Brewer traditionally does not take positions on bills before they reach her desk.
Some law professors argue that the changes outlined by Vogt alone may do little to remedy the bill’s flaws.
“Even so narrowed, the statute is unconstitutional. You simply cannot prohibit emails that are said to be intended to offend. That violates the First Amendment flat out,” said University of Chicago Law School professor Geoffrey Stone, who specializes in constitutional law. “You can prohibit email if the recipient has requested you to stop sending them. That’s different — but that’s not what this says.”
There’s also the trouble of enforcing the proposed law: Even if the bill were to pass, Arizona could do little to punish digital wrongdoers who are harassing Phoenicians or Tucsonans from across state lines, or abroad.
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