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April 5, 2012 By Brian Heaton
An attempt by Arizona lawmakers to quash cyberbullying in the state may also infringe on the free speech rights of citizens.
Arizona House Bill 2549 would include electronic or digital devices in an existing state law that makes it illegal to threaten and harass people using a telephone. But some believe the legislation’s language is too broad and violates the First Amendment.
HB 2549 outlaws the use of cellphones, tablets or computers to communicate obscene, lewd or profane language that suggests a lewd or lascivious act in some situations. A violation would occur if that communication is done with the intent to annoy, offend or terrify.
But those terms can be viewed subjectively — particularly in online banter — and aren’t defined in the proposed law.
David Horowitz, executive director of the Media Coalition, a trade association of book, movie and video game producers and retailers, said the lack of definitions is one of the bill’s significant problems. Offensive or annoying speech typically can’t be made illegal, he added.
Horowitz also pointed out that there is no requirement in the bill for the recipient, reader or viewer of the communication to actually be offended by what is said.
In a fictitious example, Horowitz explained that if two fans of rival baseball teams are emailing each other explicit taunts about which is the better ballclub, the fans clearly are intending to annoy each other. But it’s not a foregone conclusion that the attempts were successful, given the subjective nature of some electronic communication.
“That doesn’t mean either of us is actually annoyed or taking it personally,” Horowitz said. “But under the text of this legislation, that can be criminal. I would certainly believe that is not what they are going after with this legislation. But the problem is what they’ve written can be read that broadly.”
Arizona state Rep. Ted Vogt, one of the bill’s two primary sponsors, refuted most of the Media Coalition’s claims in a radio interview with WWL 870 AM’s Garland Robinette on Wednesday, April 4.
Vogt said that HB 2549 deals specifically with unwanted or unsolicited communications. He accused Media Coalition of “cherry picking” pieces of the bill.
“If I go to a blog, I kind of assume the risk that what I read there — I can be offended,” Vogt told the radio station. “So [the communication] doesn’t fall under [the legislation’s purview] because I’ve assumed the risk. Likewise, if I am a blogger and I leave a comment section and invite someone to make a comment on my news story or blogs … you’ve basically solicited comments.”
So how would the legislation, if passed, affect the use of social media and other communications tools by government agencies in Arizona?
Based on Vogt’s explanation, it seems that if a citizen is offended or annoyed about what he or she reads in a tweet or on a government-run Facebook page, the updates to state law in HB 2549 wouldn’t apply, as that communication is constitutionally protected speech.
“If someone writes something on the Internet that is completely false or whatever, you can move under libel … you have other causes of action,” Vogt said in the interview. “We’re talking about where an individual is targeting another individual with the intent to terrify, intimidate and threaten. If you can’t do it by the telephone, you shouldn’t be allowed to do it simply because you are texting your threats, emailing your threats or [instant messaging] your threats.”
Government Technology reached out to Arizona Rep. Vic Williams — the other primary sponsor of HB 2549 — for further insight on the legislation, but at press time repeated calls had not been returned.
Moving Forward
Time Techland reported on Tuesday, April 3, that HB 2549 had passed both houses of the Arizona Legislature and was awaiting a decision by Gov. Jan Brewer. But it appears now that more work will be done on the legislation.
Despite Vogt’s confidence in the bill and its intent, he told Robinette that it would be further amended in a conference committee in the next week or so. From there, the bill would be again voted on by both the Arizona Senate and House of Representatives.
Vogt said he welcomes feedback from anyone on the legislation, but the changes would concentrate on further clarifying that the bill doesn’t apply to constitutionally protected speech.
Horowitz maintained that the language in HB 2549 has to be written more precisely.
“Speaking with an intent to annoy when you are threatening someone [is] not protected by the First Amendment if it meets the criteria of a threat or intimidation — we’re not questioning that part of the bill,” Horowitz said. “Our concern is communication that [can] offend or annoy by itself is not sufficient to make it illegal.”
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I generally support this bill. Cyberbullying and harassment is out of hand. There are websites like Topix that do not moderate their forums or require users to register that are out of control and something has to be done.
There are already laws on the books that protect people against bullies and harassment. Simply enforce those existing laws. Policing someone’s right to free speech is curtailing their rights and yours. Just by righting this someone will be annoyed and offended. Does this mean I’m a criminal? Those willing to give up their rights for safety and security live prisons of their own making. For that freedom is lost forever.
I am sick of people trying to use free speech as a crutch for immoral behavior. If someone goes in and posts lies about someone they have committed an assault which is a criminal act. Unfortunately, the internet is too wild, wild west. People use the "free speech" argument to justify being a coward. I think a little bit of the wording could be changed in a few areas but this country needs a strong cyberbullying bill. The problem with the existing laws are people are stuck because you are forced to pay for an attorney and shell out thousands of dollars, the average system doesn't have. You end up being the victim twice. While there are a few things that bother me about the bill, I support it and it is way better than what we currently have.
I am hoping that this bill provides a precedent where we can FINALLY forbid people to do other things we don't like: things like practice unpopular religions, assemble in public places for causes we don't support, carry evil firearms, refuse to incriminate themselves, and vote (particularly if the person's skin color is of a tone that suggests they'll vote for the incorrect party).
Internet decency laws are solutions looking for problems and a gross violation of Freedom of Speech. These statutes have absolutely NO affect on cyber-bullying and only serve to be a lightning-rod for the ACLU and other watchdog groups, wasting taxpayers’ time and money to no avail. A similar law was passed just last summer here in Tennessee, which I responded to with a “potentially offensive” portrait of our Governor Bill Haslam and his First Lady to bring attention to the issue on my artist’s blog at http://dregstudiosart.blogspot.com/2011/07/potentially-offensive-portrait-governor.html To date, not a single charge has been filed enforcing this frivolous and dangerous law including myself.
Bullying is bullying! I don't know how this qualifies as "freedom of speech." There is a difference between "freedom of speech" and "hate speech." When you single someone out, that is obviously an expression of hate. Think about the victim, the person who receives all of this negativity, not knowing how to deal with it and how to make it stop. I hate it when people hide behind the premise of "free speech" to harbor all their hatred and animosity online toward unsuspecting individuals. Freedom of speech is to provide information and knowledge for all without boundaries, expressing opinions in a civilized manner. Trolling or attacking an individual does not equal freedom of speech, those who do so are simply abusing their so called "rights" to deliver their hate and negativity.
Don’t begin to think the line between hate speech and freedom of speech is cut and dry. Would this antiwar protest chant from the 60’s "Hey, Hey L.B.J. how many kids did you kill today" be considered "hate speech" for signaling out a person (in this case a sitting president) then stating a lie that he's a child killer? Since L.B. Johnson really didn't physically kill any kids is this hate speech or freedom of speech?
This is such a hard one. We have definitely twisted and abused what our forefathers meant by freedom of speech. It basically has become a crutch for cowards who hide behind their computers. I think what needs to happen is a balance. If libel or blatant defamation occurs then absolutely prosecute these people. For instance, if I go on a website and claim so-so is selling drugs out of their house, I have committed a criminal act if it is not true. To me the smartest way to actually improve the issue of cyberbullying (which is a very real and very serious issue) is more at the federal law. There was a bad law put in place years ago called The Communications Decency Act Section 230 which states that a website cannot be sued directly. That is where the real problem exists. Websites like Facebook and Topix (which doesn't even require registration of users and that is a REAL problem)don't do much to stop libel, defamation, and bullying because they don't have to. You can sue a person directly but that requires hiring an over priced attorney to hopefully get an IP address which is sort of a double whammy to the victim. If, in some cases, a web company can be held partially liable, you would clean up a lot of things. For instance, if someone created a Fake Facebook page of any of you and Facebook refused to remove it and continued to knowingly not do anything or in the case of Topix refused to make users register for accounts and hire a sufficient amount of moderators for its deplorable forums, then they should be held accountable as well. That would not fix everything of course, but it would clean things up far more quickly than any such law. I think the law, by and large, means well and there definitely needs to be something in place, but it definitely can be done a lot better.