With awareness of the dangers of cyber bullying on the rise, many states are working to revise their laws on harassment to bring them in line with the digital era. But the struggles of two states in particular show how hard it can be for lawmakers to find a middle ground between protecting student safety and honoring free-speech rights.
In Arizona, critics of a new bill to combat cyber bullying fear it could make being annoying, offensive, or maybe even provocative online a criminal offense. In Connecticut, similar concerns exist about a bill proposed by state prosecutors that would make “electronic harassment” a crime.
Arizona House Bill 2549 would amend the telephone harassment section of the state’s anti-stalking law to include the communication technology of the day.
The portion in question reads: “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.”
“Electronic or digital device” would supplant “telephone.” But the substitution might alter the focus of the law, some contend.
“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,” writes Eugene Volokh, who teaches free-speech law at UCLA. “But computers used to post Facebook messages or send Twitter messages or post blog items can offend some listeners while persuading and informing others.”
Volokh notes that interpretations of “profane language” could extend to material someone deems religiously offensive, potentially rendering the statute unconstitutional.
The Media Coalition, which is focused on First Amendment issues, has sent a memo to Arizona Gov. Jan Brewer, saying the changes expand the bill to cover more than was probably intended.
As the note points out, nothing in the bill explicitly states that the objectionable communication must be directed at an individual, something that could be assumed when it focused on telephone communication.
The group goes on to say, “There is no requirement that the recipient or subject of the speech actually feel offended, annoyed, or scared. It is unclear if the communication must be intended to offend or annoy a specific person or if a general intent to do so is sufficient.”
The bill was stopped in the state House by one of its sponsors after having been unanimously approved by the state Senate. According to the Phoenix New Times, state Rep. Vic Williams spoke with Media Coalition and is willing to get input and suggestions to help clarify the bill.
Meanwhile, the American Civil Liberties Union of Connecticut on April 5 blasted a bill proposed by state prosecutors that would make “electronic harassment” a crime—including such acts as posting information online that “has the effect of causing substantial embarrassment or humiliation to [a] person within an academic or professional community.”