Thursday, April 5, 2012
In one of the most sweeping attacks on free speech in America, the Arizona legislature has passed a draconian bill that would criminalize speech on the Internet (“any electronic or digital device”) that prosecutors consider “obscene, lewd or profane language or . . . suggest[ing] a lewd or lascivious act if done with intent to ‘annoy,’ ‘offend,’ ‘harass’ or ‘terrify.’” The law is largely undefined and is in my view facially unconstitutional. The law would drive a stake in the heart of free speech. Yet, people like Bill Clinton have been calling for such a crackdown on Internet speech for years.
The inclusion of terms like “profane” (defined as including “Abusive, vulgar, or irreverent language” in standard dictionaries) is perfectly bizarre. I cannot imagine that the law was put through any serious legal review. The state will end up paying for litigation of this unconstitutional law. Indeed, I am reluctant to quote from the law on this blog in fear of being prosecuted or being charged with the inclusion of something so obscene and profane.
Arizona Governor Jan Brewer will now have to decide whether to sign this law.
Former president Bill Clinton proposed a law to create what has been denounced as a type of Ministry of Truth for the Internet where officials would monitor the Internet for rumors or untruths. Clinton heralded such a move as “a legitimate thing to do.” He added “it would be like, I don’t know, National Public Radio or BBC or something like that, except it would have to be really independent and they would not express opinions, and their mandate would be narrowly confined to identifying relevant factual errors . . . And also, they would also have to have citations so that they could be checked in case they made a mistake. Somebody needs to be doing it, and maybe it’s a worthy expenditure of taxpayer money.”
The sponsors of this repellant law are Representatives Ted Vogt, Vic Williams, and Chad Campbell. Vogt just graduated from the University of Arizona law school in 2010 and has already applied his hand to denying free speech and limiting tort recovery for accident victims. Quite the start for a legislative legacy.
We have long recognized that free speech comes with bad speech and good speech. Yet we have refused to allow the government to sort out those two categories. As Justice Brennan stated in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), we must remain faithful to “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The addition of an intent factor is meaningless under this law when the mere intent to “annoy” or “harass” is enough to satisfy scienter. The law would sweep away protected speech and allow arbitrary enforcement of terms that are not only undefined but undefinable in the context of Internet speech.
The solution for bad speech is more speech not more regulation of speech.