by Betsy Gomez
Earlier this month, we announced that Arizona’s HB 2549 — a bill that could have limited constitutionally-protected electronic speech — had been pulled back by the state legislature for revision. This week, Eugene Volokh with The Volokh Conspiracy laid out those revisions, discussing how the revisions conform to constitutional standards. In sharing a letter written by the Media Coalition in opposition to the bill, CBLDF was one of the first organizations to cover a story that had otherwise flown under the radar. In its original form — which the Arizona legislature had passed and was on Arizona governor Jan Brewer’s desk for signature — the bill could have created vulnerabilities for cartoonists and publishers.
The primary concern most Free Speech advocates had over the bill was the broadness of the language in the bill. Lawmakers intended the law to protect people from online stalkers and bullies. The bill revised statutes related to telephone harassment, widening existing legislation to include electronic and digital devices. Volokh points out why the revision was potentially unconstitutional:
The Arizona cyber-harassment bill, which I blogged about March 31, has now been narrowed in the Arizona Legislature. The original proposal — which had been passed in nearly identical forms by both houses of the Arizona Legislature — read,
It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use a
telephoneand 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.
This, as I argued, would have posed serious First Amendment problems. 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.
Volokh analyzed the changes to the bill, relating his opinion on how the revisions conform to the First Amendment. He also relates how the changes still aren’t perfect:
Fortunately, the Arizona Legislature’s House-Senate conference committee has dramatically narrowed the proposed statute. The new version — which I expect will become law — reads,
A. It is unlawful for any person, with intent to terrify, intimidate, threaten or harass a specific person or persons, to do any of the following:
1. Direct any obscene, lewd or profane language or suggest any lewd or lascivious act to the person in an electronic communication.
2. Threaten to inflict physical harm to any person or property in any electronic communication.
3. Otherwise disturb by repeated anonymous, unwanted or unsolicited electronic communications the peace, quiet or right of privacy of the person at the place where the communications were received….
C. This section does not apply to constitutionally protected speech or activity or to any other activity authorized by law….
This is much more likely to be read as limited to one-to-one messages, such as unwanted targeted e-mails, instant messages, text messages, and the like. The language is not completely airtight on that score, but I think it’s much more likely to be so interpreted. And though there are problems with the proposal even as to unwanted one-to-one messages — for instance, “harass” is not defined in the statute, and the word “harassment” is defined three different ways in three other Arizona statutes, which reflects its ambiguity — I think the new version is much better than the original draft.
While going through the legislature, the bill garnered little notice from the press. After the release of the Media Coalition letter, several outlets picked up on the story, including Time, MSNBC, Yahoo, Digital Media Wire, Gizmodo, Forbes, CBR, Alex Jones’ Prison Planet, The New American, Anime News Network, Tech Crunch, and many more. Most of these outlets picked up the story because of efforts by CBLDF and Media Coalition. In fact, Volokh thanked CBLDF for our coverage, which is how he learned of the bill.
It is possible that the bill would have passed into law in its original form without the national attention provided by media outlets, calling attention to the bill’s unconstitutional provisions. The changes made to the bill represent a victory for Free Speech.
Betsy Gomez is the Web Editor for CBLDF.