A bid by a Tucson Republican lawmaker to update telephone harassment laws has hit a roadblock amid concerns that it could stifle legitimate speech on the World Wide Web.
Rep. Ted Vogt seeks to revamp a law on the books for more than four decades already makes it a crime to use a telephone with the intent to "terrify, intimidate, threaten, harass, annoy or offend.'' His legislation, HB 2549, would apply those same rules to any electronic or digital device.
"Why if this is a prohibited activity right now should somebody be able to deliver the same threatening, annoying, harassing messages simply because they're e-mailing it or texting it?'' Vogt asked. "We're just updating (this law) to acknowledge the fact we live in a digital world.''
Violators could end up in jail for six months.
But David Horowitz, director of the New York-based Media Coalition, said he fears how the new language could make criminals out of those engaged in otherwise legitimate activities.
"You're transforming this from a crank call statute to something that would apply to a broad range of materials that's available electronically,'' he said. Horowitz said that could include not only e-mail messages but even e-books, blog posts and twitter messages, "all of which at times people use to communicate with an intent to annoy or offend.''
Kathleen Mayer, an assistant to Pima County Attorney Barbara LaWall, said it is true the law would make it illegal to use an electronic device with the intent to terrify, intimidate, threaten, harass, annoy or offend. But Mayer, whose office helped craft the legislation, said someone could be prosecuted only if the communication also used obscene or lewd language, suggested a lascivious act or threatened to inflict harm.
"So it can't just be an e-mail I sent you that says, 'Your article was really stupid,' '' Mayer said.
"You might find that annoying,'' she continued. "But if I made a suggestion of something lewd you should do to yourself, that would be different.''
Horowitz said, though, that still does not help. He said electronic communications meant to offend also use "adult language or profane language, which is speaking disrespectfully about religion,'' meaning the sender could still wind up behind bars.
Vogt has offered to make some fixes to address at least some of the complaints -- and get the needed votes to send the legislation to Gov. Jan Brewer.
For example, he promised the final version will spell out that the only activity that would be a crime is where an individual is targeting another individual or group, rather than simply posting something on a web site.
He also said the measure will say that the communication has to be "unwanted or unsolicited.''
"If you call somebody right now and you get into an argument and they threaten you, if you call somebody and invite them to insult you, you wouldn't be caught up in this,'' Vogt said. "Likewise, if you go out, you go onto somebody's web site or you invite comments on your web site, then you wouldn't be caught up in this either.''
And Vogt said the final version also will spell out clearly that it does not apply to "constitutionally protected activity.''
Horowitz, however, said that still does not go far enough. He said no one should risk criminal penalties for sending out an e-mail -- even to a specific person or group -- even if it is designed to offend or annoy, as someone who is offended or annoyed by an e-mail can simply hit the "delete'' key.
He said it would one thing if an e-mail rose to the legal level of harassment. And that, he said, would not be protected by the First Amendment.
"But a single e-mail that annoys somebody?'' he asked.
"You get those all the time,'' Horowitz continued. "But I'm not sure that may rise to the level of criminality.''
For example, he said, someone who went to Syracuse University might have gotten an e-mail from an acquaintance after that school was eliminated from the NCAA tournament, saying, "You guys stink,'' Horowitz said. And the intent of the sender, he said, would be to annoy the recipient.
"Do you think that's something that should be illegal?'' he said.
Vogt, who is an attorney, said he has no problem even if the legislation makes it illegal to annoy or offend someone, regardless of the method. Nor does he see a First Amendment problem, saying courts have always recognized legitimate limits, such as Federal Communications Commission regulations banning the use of certain obscene words over the airwaves.
"You can't pick up the phone today and call another person and threaten or harass them, constantly hang up the phone and otherwise disturb their peace,'' he said. "You shouldn't be able to get away with that activity simply because now you're doing it via text message, e-mail or IM (instant messaging).''
Horowitz said, though, that the law still fails to distinguish between harassment, which is already illegal, and simply being annoying or offending.
In fact, he suggested that even absent Vogt's proposed changes, there may be constitutional problems with the existing law as it applies solely to telephones. That's because the law fails to spell out when someone crosses the line.
"If somebody called you all night 40 times and rang your phone, yes, it's annoying and it rises to the level of harassment,'' Horowitz said. "If one person calls you up and says something to you, and you say, 'I don't want to hear any more,' and that's the end of it, it probably is not going to be something that meets that definition.''
HB 2549 already has been approved by both the House and Senate, albeit in slightly different forms.
Vogt's original plan was to have the House simply concur with the Senate changes. But now, with the new objections, he is taking the legislation to a conference committee where lawmakers from both chambers can make some changes.