Proposed Arizona Law May Violate First Amendment, Even As Amended (EDITED)

(See edits to the original post at the end of this page.)

In the past week or so, an online brouhaha has swelled in response to the Arizona legislature’s passage of a bill that would criminalize any “harassing” and “obscene” communications over the internet.  Specifically, the law would make it “unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use any electronic or digital device and 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.”  Free speech activists immediately protested that the law’s extremely broad language would essentially outlaw vast swathes of constitutionally protected online speech, in violation the First Amendment; some even claim the law could “shut the internet down” if upheld and enforced as currently written.  See Media Coalition’s excellent letter urging Arizona governor Jan Brewer to veto the bill for a summary of the obvious constitutional issues with the bill as currently drafted.

In response, Arizona legislators pulled back, and promised to revise the bill before putting it to a final vote.  The changes, according to Rep. Ted Vogt, the bill’s co-sponsor, would narrow the proposed statute’s application to clarify that the law would exempt constitutionally protected speech, apply only to situations in which “an individual is targeting another specific individual or group of individuals,” and specify that the communication must be “coupled with a course of conduct.”

The proposed changes strike me as woefully insufficient.  The exception for constitutionally protected speech would do nothing to actually dissuade prosecutors from enforcing the law against protected speech, until such time as a court finds the speech in question actually is constitutionally protected — it’s an exception with virtually no meaning as the law would likely be applied.

Second, prosecutors could argue that many types of online speech, even though available for everyone to see on the internet, in fact are “targeted” at a particular individual or group.  An obscene parody of a public figure, for example — along the lines of what the television show South Park does frequently with everyone from Tom Cruise to Michael Moore — could be viewed as “targeting” that individual, even if the point is to parody that individual to the public at large.  The proposed Arizona statute would still outlaw such speech as long as it could be read as being directed toward a single person or group.

A “course of conduct” exception would get the bill closer to constitutionality, but still probably fall short, because — as I have noted here — conduct is often protected as speech, and indeed, much protected speech takes the form of provocative conduct.  The course of conduct would have to be defined very narrowly as violent or physically threatening conduct.

Sadly, as Ken Paulson at the First Amendment Center points out, the political gains to be made by politicians from passing bills like this one will still remain, even if this particular bill fails or is properly amended to address constitutional concerns.  Politicians do not always worry about the constitutionality of a bill; rather, their first concern is whether their constituents and allies will be pleased by its passage.  If only we could convince legislators to “think of liberties first, then draft bills,” as Paulson urges.

EDIT: It appears the Arizona legislature has put forth an amended bill with the proposed revisions more or less as their members had indicated.  (See it here.)  I am still not so sure it would survive constitutional scrutiny, for the same reasons I discuss above, and as Eugene Volokh discusses briefly on the Volokh Conspiracy today.