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.
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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