Solons don’t think of Constitution

Published 2:39 pm Wednesday, April 11, 2012

When I was a young reporter covering the Florida Legislature in 1980, I was amazed at the number of proposed bills that would be unlikely to pass constitutional muster. They were so obviously flawed that, if passed, they would quickly be struck down.

I wrote a story about the process, quoting legislators who supported bills built on shaky ground. I can still recall their collective response: They didn’t care.

As I learned then, legislators at all levels work to serve the public and to get re-elected, in varying proportions. Lawmakers who introduce bills that please their constituents may not be overly concerned whether a judge will be as pleased somewhere down the road.

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I was reminded of that early career lesson when I saw a new bill approved by the Arizona Legislature. The bill, which supporters say will outlaw abusive speech on the Internet, was overwhelmingly passed by both the Senate and House. But after nationwide criticism it has apparently dawned on the bill’s supporters that it might still need a little work.

It does. The bill updates a law barring harassment over the telephone, extending its reach to the web. The operative language:

“A. 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 is also unlawful to otherwise disturb by repeated anonymous electronic or digital communications the peace, quiet or right of privacy of any person at the place where the communications were received.”

Although the bill is framed as an effort to prevent illegal threats and harassment on the Internet, its breadth has led to accusations of censoring the Internet.

According to Government Technology, Arizona State Rep. Ted Vogt claimed critics were “cherry picking” the bill.

And yet that’s exactly what courts do. If the law is so poorly drafted that it can be interpreted under even narrow circumstances as limiting constitutionally protected speech, then the law can’t be sustained. A law can’t be 95% constitutional.

Under the existing language in the law, anyone who intends to annoy or offend while using profane language can be charged with a crime. That’s clearly unconstitutional. At the core of the First Amendment is the right to express yourself in a way that annoys or offends others, and the courts have consistently found that profanity is protected speech.

Defenders of the bill point to its efforts to prevent bullying, threats, intimidation and harassment, and those are all valid concerns. But those criminal activities can almost always be addressed through other existing laws. You can’t threaten to harm others regardless of the medium you use.

We’ll see whether the widespread derision will lead to a meticulous editing of this poorly drafted bill, but lawmakers at any level should really ask two questions before they pass legislation that limits what Americans can write and say:

Could this bill be used to infringe liberties guaranteed under the Bill of Rights?

Can the conduct that we’re trying to prevent be prosecuted under an existing law?

Lawmakers have an obligation to protect the public interest – and that includes not playing fast and loose with the Constitution.

Ken Paulson is president and chief executive officer/First Amendment Center. Previously, Paulson served as editor and senior vice president/news of USA Today and