April 3, 2012
Arizona's HB 2459: Internet Decency?
Awaiting Governor Jan Brewer’s signature is Arizona HB-2549 , a bill that “updates” the previous telephone harassment statute to apply to the internet. The bill applies to obscene, lewd, profane language as well as the suggestion of any lascivious act.
The bill’s text, which would be codified as Arizona Revised Statutes §13-2916, entitled "Use of an electronic or digital device to terrify, intimidate, threaten, harass, annoy or offend; classification; definition", with the updated provisions IN ALL CAPS, provides:
A. It is 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. It is also unlawful to otherwise disturb by repeated anonymous ELECTRONIC OR DIGITAL COMMUNICATIONS the peace, quiet or right of privacy of any person at the place where COMMUNICATIONS were received.
B. Any offense committed by use of AN ELECTRONIC OR DIGITAL DEVICE as set forth in this section is deemed to have been committed at either the place where the COMMUNICATIONS originated or at the place where the COMMUNICATIONS were received.
C. Any person who violates this section is guilty of a class 1 misdemeanor.
D. FOR THE PURPOSES OF THIS SECTION, "ELECTRONIC OR DIGITAL DEVICE" INCLUDES ANY WIRED OR WIRELESS COMMUNICATION DEVICE AND MULTIMEDIA STORAGE DEVICE.
The First Amendment concern is that the statute is overbroad. It seems the new statute would apply to general communication on web sites, blogs, listserves and other Internet communication. Translated from the telephone to the Internet, the analogies are imperfect at best: a comments section of a blog, a youtube video, a facebook posting, or any number of Internet “communications" are simply not like a one-to-one telephone call.
Recent First Amendment cases such as US v. Stevens have declined to extend obscenity, and the Internet, unlike the telephone, is not a "regulated media."
If Governor Brewer signs the bill, a First Amendment challenge will surely follow.
[image, telephone circa 1931, via]
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