Arizona House Bill 2549: Killing free speech online

Thomas Grier Attorney, The Law Office of Thomas Grier
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Arizona House Bill 2549 takes criminalizing speech to an entirely new level. The 1984-like bill, which has already passed both houses of the Arizona Legislature but is awaiting Governor Jan Brewer’s signature, would make it a crime to use any electronic or digital device to communicate “using obscene, lewd or profane language or to suggest a lewd or lascivious act if done with intent to ‘annoy,’ ‘offend,’ ‘harass’ or ‘terrify.’” It could make the most basic and routine Internet communication a Class 1 misdemeanor or worse.

Fortunately for Arizonans, Arizona’s constitution contains provisions that protect free speech in more ways than even the First Amendment of the U.S. Constitution. The Arizona Constitution specifically says that “Every person may freely speak, write, and publish on all subjects.” Arizona courts have also declared that the Arizona Constitution’s Free Speech Clause gives “broader” free speech protections than the First Amendment grants. Aside from Arizona’s own speech protections, the First Amendment likely prohibits Arizona House Bill 2549’s criminalizing overreach.

Luckily, Arizona’s attempt at criminalizing speech is getting public attention. The Media Coalition, a group that defends First Amendment rights, recently drafted a letter to Governor Brewer calling on her to veto the bill on the grounds that it is likely unconstitutional:

The members of Media Coalition believe that Section 1 of House Bill 2549 plainly violates the First Amendment. We acknowledge that the bill passed with very little opposition despite our efforts to raise our concerns. Nonetheless, we respectfully ask you to veto H.B. 2549 and allow legislators to craft a narrower bill that addresses their concerns without infringing on the right of free speech.

H.B. 2549 would make it a crime to use any electronic or digital device to communicate using obscene, lewd or profane language or to suggest a lewd or lascivious act if done with intent to “annoy,” “offend,” “harass” or “terrify.”

Government may criminalize speech that rises to the level of harassment and many states have laws that do so, but this legislation takes a law meant to address irritating phone calls and applies it to communication on web sites, blogs, listserves and other Internet communication.

H.B. 2549 is not limited to a one to one conversation between two specific people. The communication does not need to be repetitive or even unwanted. There is no requirement that the recipient or subject of the speech actually feel offended, annoyed or scared. Nor does the legislation make clear that the communication must be intended to offend or annoy the reader, the subject or even any specific person.

H.B. 2549 has also received negative attention from noted First and Second Amendment scholar Eugene Volokh. Volokh says he is “no fan of using obscene, lewd, or profane language with intent to annoy or offend people” but thinks that H.B. 2549 “poses the danger of restricting a great deal of speech that is protected by the First Amendment.”

H.B. 2549’s sponsors likely do not understand the implications of this bill on free speech. They might also be unaware of the bipartisan outrage that these bills can produce. In fact, during the outrage over SOPA, conservative activist and blogger Erick Erickson promised to primary any Republican who supported the bill.

I plead with Governor Brewer to veto Arizona House Bill 2549. It is an unconstitutional attempt to criminalize speech. By vetoing it, Governor Brewer would be defending Arizona’s free speech heritage.

Thomas Grier is a third-year law student at The Ohio State University. A graduate of Arizona State University, Grier writes on constitutional law, politics and pro-growth policy.