Arizona House Bill 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 the 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.
Gov. Jan Brewer sent back the bill to the legislature. It was amended to address the objections raised in our memos and by the coalition that Media Coalition built to oppose the legislation. The amended bill was signed into law.
The government may criminalize speech that rises to the level of harassment, but this legislation takes a law meant to address irritating phone calls and applies it to communication on web sites, blogs, listservs and other internet communication. H.B. 2549 is not limited to a one-on-one conversation between two specific people. 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 the reader, the subject or even any specific person.
Speech protected by the First Amendment is often intended to offend, annoy or scare but could be prosecuted under this law. A Danish newspaper posted pictures of Muhammad that were intended to be offensive to make a point about religious tolerance. Some Arizona residents may consider Rush Limbaugh’s recent comments about a Georgetown law student lewd. He could be prosecuted if he intended his comments to be offensive. Similarly, much general content available in the media uses racy or profane language and is intended to offend, annoy or even terrify. Bill Maher’s stand-up routines and Jon Stewart’s nightly comedy program, Ann Coulter’s books criticizing liberals and Christopher Hitchens’ expressing his disdain for religion, Stephen King’s novels or the Halloween films all could be subject to this legislation. Even common taunting about sports between rival fans done online is frequently meant to offend or annoy and is often done using profane language.
There is no historic exception to the First Amendment simply because the speech annoys, offends or even terrifies, regardless of whether it is lewd or lascivious. And in three recent cases, the Supreme Court has emphasized that it is reluctant, if not unwilling, to expand the categories of unprotected speech to include different kinds of offensive or distasteful communication beyond the historic exceptions.
Nor is there an exception to the First Amendment for speech that is profane or lewd or suggests a lewd or lascivious act. There is a historic exception for obscene speech, but that speech is narrowly and specifically defined using the three-part Miller test.
In certain narrow, well-defined instances, speech may rise to the level of coercion, threats, intimidation or persistent harassment and amount to a crime. But H.B. 2549 does not define many of its terms to adequately distinguish between protected speech and the traditional narrow crime of harassment. This vagueness in the legislation will have a significant chilling effect on protected speech, as the bill provides criminal sanctions for a single violation. As noted above, a substantial amount of speech in the media could be subject to this legislation, but speakers have little guidance to determine what speech is protected and what is subject to prosecution and must either risk a criminal prosecution or self-censor their speech.
Media Coalition action
In addition to sending memos to the legislature and a letter to Gov. Jan Brewer asking her to veto the bill, Media Coalition built a coalition to oppose the bill, which included newspapers, radio and television stations, websites and internet users. Media Coalition also prompted public opposition to the bill by highlighting the First Amendment deficiencies in the bill, and explaining the wide range of speech that could be prosecuted if the bill became law.
- On January 18, 2012, the bill was introduced  and referred to the House Committee on Judiciary.
- Media Coalition submitted a memo in opposition  to the members of the committee on January 24, 2012. The memo explained the constitutional issues with the bill.
- On February 2, 2012, the committee recommended the bill be passed. The House passed the bill on March 7, 2012 and sent it to the Senate for consideration. The bill was referred to the Senate Committee on Judiciary.
- Media Coalition submitted a memo in opposition  to the members of the Senate Committee on Judiciary on March 9, 2012. The memo reiterated the constitutional issues with the bill.
- The committee recommended the bill be passed. The bill was referred to the Senate Committee on Rules.
- On March 22, 2012, Media Coalition submitted a memo in opposition  to the members of the Senate Committee on Rules. The memo reiterated the constitutional issues with the bill.
- The committee recommended the bill be passed.
- Media Coalition submitted a memo in opposition  to all the members of the Senate on March 27, 2012.
- The Senate made a small amendment to another part of the bill. It passed the bill on March 28, 2012 and sent it back to the House to concur with the changes.
- Media Coalition submitted a memo in opposition  to all the members of the House on March 28, 2012. We sent a letter to Gov. Jan Brewer  asking her to veto the bill the following day.
- The House and Senate appoint members to a conference committee. The conference committee amended  the bill to address the concerns we raised in our memos.
- The House and Senate passed the bill as amended.
- On May 14, 2012, Gov. Brewer signed the bill as amended.