A Crime to Use “Any Electronic or Digital Device” “And Use Any Obscene, Lewd or Profane Language” “With Intent to … Offend”?

That’s what Arizona HB 2549, which was just passed by both houses (though not yet signed by the Governor) provides, in relevant part:

It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use a telephone 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.

I take it that this refers only to speech intended to offend someone who receives it, and not someone who hears about it indirectly. But note the significance of the shift from a telephone to “any electronic or digital device”: Telephones are basically one-to-one devices, so a phone call that uses profane language to offend is likely meant only to offend the one recipient, rather than to persuade or inform anyone; but computers used to post Facebook messages or send Twitter messages or post blog items can offend some listeners while persuading and informing others.

So, under 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 (see, e.g., City of Columbia Falls v. Bennett (Mont. 1991)). Likewise if a blog poster were to post the same in response to a commenter’s comment. Likewise if someone posts something in response to an e-mail on an e-mail-based discussion list, or in a chatroom, or wherever else. (Note that if “profane” is read to mean not vulgarly insulting, but instead religiously offensive, see City of Bellevue v. Lorang (Wash. 2000), then the statute would be unconstitutional as well.)

The same would be true if someone posts something lewd in one of these places in order to annoy or offend someone, for instance if he posts a comment on a police-run public discussion page that says something like “the chief of police can suck my dick,” to borrow subject matter from a prior Arizona telephone harassment case. And note that, given that case, the speech need not even be about one of the recipients, so long as it’s intended to annoy or offend one of the recipients.

Naturally, readers of this blog know that I am no fan of using obscene, lewd, or profane language with intent to annoy or offend people. But, given 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. (For more on this, see Volokh, Freedom of Speech in Cyberspace from the Listener’s Perspective: Private Speech Restrictions, Libel, State Action, Harassment, and Sex, 1996 U. Chi. Legal Forum 377, parts II.B-.C (1996).) But the just-passed bill has no such limitation, and thus poses the danger of restricting a great deal of speech that is protected by the First Amendment. Thanks to Alan Solot for the pointer.