Civil Liberties

No "Obscene, Lewd or Profane" Language? There Goes Twitter


If there's any point to the Internet other than the use of "obscene, lewd or profane language," that purpose may have slipped by a few of us, especially if that language is uttered "with intent to terrify, intimidate, threaten, harass, annoy or offend." But outlawing just that is the aim of HB 2549, a bill that passed both houses of Arizona's often-entertaining and frequently appalling legislature.

Let lawmakers know you've been offended, Anonymously!

The legislation has been sold as an anti-stalking measure, but it would seem to have somewhat wider application. How wide? It's hard to tell, because the bill throws around a lot of loosely defined verbiage. Warns the Media Coalition in a memo (PDF):

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." The legislation offers no definitions for "annoy," "offend," "harass" or "terrify." "Electronic or digital device" is defined only as any wired or wireless communication device and multimedia storage device. "Lewd" and "profane" are not defined in the statute or by reference.

The Coalition also points out:

H.B. 2549 is not limited to a one to one conversation between two specific people. It would apply to general communication on web sites, blogs, listserves and other Internet communication. 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 a specific person.

Law professor and blogger Eugene Volokh, who has a little experience with the whole First Amendment thing, illustrates the potential dangers of the bill with a scenario that's not uncommon these days:

[U]nder the statute, posting a comment to a newspaper article — or a blog — saying that the article or post author is "fucking out of line" would be a crime: It's said with intent to offend, it uses an electronic or digital device, and it uses what likely will be seen as profane language.

Hmmm … Could that ever be a concern around Hit & Run?

Fortunately, says Volokh, Arizonans may be spared visits from the online good-manners police, because the legislation ventures so far out of constitutional bounds.

[G]iven the First Amendment, the government may not restrict such speech on blogs, e-mail discussion lists, and newspaper Web sites. If the Arizona Legislature wants to apply the ban on telephone harassment to other one-to-one devices, such as text messaging or e-mails sent directly to a recipient, it may well be free to do so.

The proposed law hasn't just caught the attention of constitutional advocates—Anonymous has chimed in, urging followers on Twitter to fax "butthurt report forms" to state officials, complaining that they've been offended online.

Faxing "butthurt report forms"? Isn't that an act of harassment?