This post is written with intent to annoy the Arizona legislature

While the First Amendment protects free speech in all of its various forms, recent trends worry me. One is the attempt to create an exception for “bullying” speech — something impossible to define, which lends itself to arbitrary double standards.  The other is an attempt to unconstitutionally criminalize electronic speech which offends anyone.

Eugene Volokh has a post about a new law which has just passed both houses of the Arizona legislature and says this:

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.

As Volokh explains, this law would make it a crime for me, Simon, Sarah, or Dave (or any of the commenters here) to use profane language to criticize anyone.

…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.)

This is nuts. If I say that the Arizona legislators who passed this idiocy are a bunch of effing lunatics but spell out the “f—ing” part, then I guess I would become a criminal in Arizona.

F*ck em! (And I mean u!)

Still, there is a larger question in my mind than whether I would become a criminal for using insulting language in a blog post. What might explain the growing contempt people have for the First Amendment? We’re not just talking about academic nut jobs spouting gibberish in their ivory towers. That the Arizona state legislature would pass this (in an apparently bipartisan manner) indicates that something has gone very wrong. What happened? Is the problem the lack of a basic education in civics,  even by elected officials? It’s easy to say that a law like this ought to be slam-dunked in the courts as unconstitutional, but what if these people (or other like-minded nutjobs) get appointed to our courts?

The bottom line is that I am offended, annoyed, terrified, intimidated, and feel harassed by this legislation.  (If threatening to imprison people is not intimidation, then what is?) But rather than rant, in the spirit of compromise I’d like to offer the Arizona legislators some alternative language:

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 the legislative process 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 to violate the First Amendment of the Constitution of the United States or the free speech rights of any citizen of the United States.

I hope the above will pass constitutional muster.

MORE: Lest anyone think that the problem is limited to a bunch of unschooled yahoos in Wild West Arizona, Volokh has another post about a similar effort in Connecticut:

(a) A person commits electronic harassment when such person, with intent to harass, annoy or alarm another person, transmits, posts, displays or disseminates, by or through an electronic communication device, radio, computer, Internet web site or similar means, to any person, a communication, image or information, which is based on the actual or perceived traits or characteristics of that person, which: …

(2) Has a substantial and detrimental effect on that person’s physical or mental health;

(3) Has the effect of substantially interfering with that person’s academic performance, employment or other community activities or responsibilities;

(4) Has the effect of substantially interfering with that person’s ability to participate in or benefit from any academic, professional or community-based services, activities or privileges; or

(5) Has the effect of causing substantial embarrassment or humiliation to that person within an academic or professional community.

In other words, if I electronically criticize someone out of annoyance and he is embarrassed, I have committed a crime. It’s unconstitutional, of course.

Unfortunately I say the same thing about a lot of laws, and often when I do I see people get that glazed look in their eyes. As if they’re thinking, “There he goes, with that ‘Constitution’ Tea Party stuff again.” And they have a point, really. Because, the more they keep cranking out unconstitutional laws, and the more people like me yell and complain about them, the less likely it is that anyone will listen.

We are nearing that point where even reasonable people will have concluded that the Constitution no longer really means anything, and the “unconstitutional” argument will be treated like the boy who cried wolf. Besides, if nearly everything is unconstitutional, then what’s the standard?

Does it have to be really really unconstitutional?

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I never do this. It is considered very bad form around here and it is. But I’m going to step on Eric’s post because I have a few words to add.

Fuck ’em.

Simon

UPDATE: “Bad form” or not, I deliberately — and with full intent to annoy the Arizona legislature — refuse to delete what Simon added. And of course I agree with the phraseology.

An intriguing side issue is whether profane or lewd language has to be spelled correctly and in full in order to be profane or indecent. Apparently so, because CBS seems to have had no trouble calling a TV show “Oh F*ck It’s You.” So maybe the word cops will have to go after deliberate and suggestive misspellings. Is “FU(K” a word? Or FCKU?

One verboten word, though, is “FCUK.”

It’s trademarked.

We are so fckued! If the political censors don’t get us the commercial censors will. All they need to do is copyright and trademark every last dirty word, and we’ll be left speechless.

Eric