Posted on April 2, 2012


Dude look familiar?  If he does, it’s probably because you carry his picture in your wallet.  Yeah, I see you with that wad of $2o’s tucked neatly in the cash pocket.  Well, I’ll be discussing our 7th President in much greater frequency in future posts, but there is no question that he would have a few choice words about today’s political parties – both of them.   If he did however, he might run afoul of a new piece of legislation in the works.

There’s a scary disease outbreak in this country.  No, I’m not talking about H1N1 or a return of Smallpox.  What’s even more disturbing is that people who ordinarily have a high degree of immunity to this ‘virus’, are becoming infected.  There have been mass casualties in the past, but with proper and timely treatment, they have been brought under control.

What disease am I referring to?  Censoring of Free Speech.  The latest and perhaps most disturbing example of this incapacitating malady has cropped up in a most unusual place – Arizona.  Yes, Arizona!   Arizona – the ‘breath of fresh desert air’ that I have been boasting about most recently!

What do I mean by contagion among the ordinarily immune population?   As is often the case with good intentions of which we are told the path to the hot place is paved, Arizona’s new law, HB2549, awaiting Governor Jan Brewer’s signature, was originally conceived with the purpose of putting a smack down on ‘online bullying’, but has been laden down with speech infringing garbage.   This bill is from a Republican majority legislature!

I know that there are many who cherish the naive notion that they will go the polls this coming November and vote Obama out and Republicans in,  sigh a sigh of relief and go home and get a good night’s sleep – mission accomplished.  Uh,uh, not so fast, according to ‘Old Hickory’:

“But you must remember, my fellow-citizens, that eternal vigilance by the people is the price of liberty, and that you must pay the price if you wish to secure the blessing.  It behooves you, therefore, to be watchful in your States as well as in the Federal Government.”

— Andrew Jackson, Farewell Address, March 4, 1837

Media Coalition, a trade association protecting the First Amendment rights of content industries, whose membership includes CBLDF, has been active in opposing the bill. On March 14, Media Coalition sent a memo to the Senate Rules Committee regarding constitutional infirmities in H.B. 2549.

Yesterday they sent a letter to Governor Brewer urging her to veto the bill.  Here’s what they told Governor Brewer:

H.B. 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 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. “Lewd” is generally understood to mean lusty or sexual in nature and “profane” is generally defined as disrespectful or irreverent about religion or religious practices.

Government may criminalize speech that rises to the level of harassment and many states have laws that do so, but this legislation takes a law meant to address irritating phone calls and applies it to communication on web sites, blogs, listserves and other Internet communication. H.B. 2549 is not limited to a one to 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. If a Muslim in Arizona considers the images profane and is offended, the paper could be prosecuted. 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 salty and profane language.

While protecting people from harassment is a worthy goal, legislators cannot do so by criminalizing speech protected by the Constitution. All speech is presumptively protected by the First Amendment against content-based regulation, subject only to specific historic exceptions.

Seeing as the Media Coalition has done such a neat job of outlining the fatal flaws in this bill, I need not re-invent the wheel and outline any further objections.  I will just say that it must be clear by now, with the brouhaha over Rush Limbaugh, the well remembered clamor for muzzling conservative talk radio in the wake of the Jarod Loughner shootings (in Arizona) and even a conservative led boycott to have ‘Good Christian Bitches’ removed from ABC’s television broadcast schedule – that the itch for censorship and suppression is vigorous and highly infectious.

I discussed the proper antidote to being ‘offended’ in a recent post, ‘The On / Off Switch‘.

Governor Brewer, please act to quarantine this insane, authoritarian, ill-conceived and poorly written new attack on our Natural Law freedom of expression –  throw the whole mess into the shredder and then incinerate it.

What is particularly notable about the widespread opposition to HB 2549 is that it is coming under fire from both sides of the political spectrum.  Even some commenters on the Daily Kos, are condemning the law in rather profane terms – with no doubt some degree of intended irony.

I won’t use the language that comes to mind to describe the mouldering heap of guano that is HB2549, because I like to try at least to keep Blasted Fools classy and within the bounds of what my wife likes to refer to as ‘decorum’.   But I think I’d be fully within my rights to do so … for now.