You and I may not use profanity in our Facebook posts, but what about that crazy relative who puts up the funniest posts that sometimes cross the line? Almost no one approves of swearing, but with the exception of broadcasting during daytime TV and radio, it is not illegal. Now new legislation in Arizona would effectively make swearing on the internet a crime.
Sponsored by Democrats and liberal Republicans, Arizona House Bill 2549 passed both the House and Senate almost unanimously last week, and has gone back to the House for a minor change before being sent to Governer Jan Brewer to sign. The relevant part states:
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 expands Arizona anti-harassment laws beyond telephones and to the internet. The problem with this is that one person specifically telephoning another person is not the same thing as an anonymous comment on the internet. This kind of behavior goes on all the time on the internet. Every day on political blogs and news sites, some commenters get a little out of hand, and most website editors handle the problem by stepping in and deleting the offensive comments or leaving a comment warning people to tame their comments.
Words like “annoy” and “offend” are vague and could be interpreted broadly to prevent someone from simply engaging in political debate. What one person considers profanity another might not. Is the word “sucks” a swear word? What about “b.s.?” Plenty of families find those acceptable, while others do not. Even anonymous commenters could be liable, if an internet provider produces records tracing their IP address.
There is no way this legislation will survive a First Amendment challenge in court. The government cannot flat out ban all swear words, which is effectively what this legislation does in the internet realm. The courts have already carefully decided when and under what circumstances the FCC may prohibit swear words on broadcast TV and radio, and even those restrictions are now being reconsidered. Consider all the swear words on TV and in movies. Then think of what a mammoth task it would be policing the entire internet for swear words that reportedly annoy or offend someone, and to come up with the additional resources necessary to prosecute them. Anyone could get into a political debate with someone on a political website, use one swear word in their comments, and be considered violating the law. My own political website, IntellectualConservative.com, is technically full of violators. This is troubling since political debate is the bedrock of our country, Constitution and the First Amendment.