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.
So, under the proposal, posting a comment to a newspaper article — or a blog — saying that the article or post author is “fucking out of line” would have been 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 have been unconstitutional as well.)
The same would have been true if someone posted something lewd in one of these places in order to annoy or offend someone, for instance if he posted 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, given that case, the speech need not even have been about one of the recipients, so long as it had been intended to annoy or offend one of the recipients.
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.
Many thanks to Alan Solot for pointing me to the original version of the bill in the first place, to Charles Brownstein of the Comic Book Legal Defense Fund for writing the March 30 post that Mr. Solot had passed along to me, and to Media Coalition for its earlier criticisms (see here and here).
UPDATE: Thanks also to author Neil Gaiman; Alan Solot tells me that he learned of the bill through a Twitter message by Mr. Gaiman, which pointed to the Comic Book Legal Defense Fund post.