Watching Fungus Grow, Arizona Version

Once it gets a foothold, it’s hard to stop.  First Alabama. Then Connecticut. Now Arizona. From Eugene Volokh (again). Both houses have passed  Arizona HB 2549, and it awaits signing.



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.


It’s grown tedious discussing what’s wrong with such laws. Use a curse to characterize a supporter of this law on your iPhone and you’ve committed a crime?  What a bunch of assholes. Oops, guilty.


So, 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.

I’m not big fan of using profanity in general, but only because I believe we can express ourselves without it.  Aside from that, it’s not as if I haven’t heard it, don’t occasionally use it, or start to shake when my delicate ears/eyes are assaulted. 

The question is why these laws, so obviously unconstitutional to pretty much any lawyer not blinded by the desire to shut others up, have become the unquestioned darlings of legislatures everywhere?  Most legislatures are lousy with lawyers, elected in small part because of their education and skills in handling such questions as the constitutionality of their enactments. Are these the stupidest lawyers around who have finally found a place where legal ability has no place?

What are the chances that some judge somewhere is goind to share the legal ability of his legislators and uphold a law like this?  Even if it’s eventually held unconstitutional, how many people will be prosecuted, maybe punished, for the exercise of speech?

And if this happens, how many blawgs will be banned in Arizona as continuing criminal enterprises?

Free speech is under full scale assault in the United States, and there are a great many anti-bullying lawprofs and lawyers, not to mention well-intended members of the public, who are so vociferous about bullying (whatever that is) that they will not shed a tear over speech.  Don’t think this is going to be an easy problem to fix, or that we aren’t facing a very real problem.



2 thoughts on “Watching Fungus Grow, Arizona Version

  1. A Voice of Sanity

    “What are the chances that some judge somewhere is goind to share the legal ability of his legislators and uphold a law like this?”

    Is this legislature broadcast via TV or radio or internet? Because if so …

  2. Onlooker

    It’s also part of the insidious overcriminalization of the U.S. which gives government more power over us.

    When they can bring almost anybody up on some sort of charges, it leads to abuses by cops, D.A.s, and other parts of the executive branch of govt.

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