Arizona cyberbully legislation tries to ban the sacred right to be annoying

Cyberbully law bans offensive or annoying speech, which is the whole point of the Constitution

There has always been a small minority of vocal geek tribalists who preach that non-geeks should not be allowed to make laws that affect tech issues, especially the Internet.

They've never gotten any serious traction, even among geeks, who realize geeks are good at technology but not usually at politics or at writing good laws.

That's true of most jobs. You don't have to be a doctor to know it's important to verify patients are getting good care at a reasonable cost.

You don't have to be an MBA to understand lying to stockholders or cheating customers by selling them worthless investments is not a good thing.

You don't have to be a coke-addled, money-hungry monomaniac to realize music producers shouldn't be able to use copyrights they may not own to extort money directly from consumers who may not have violated any copyrights in the first place.

Apparently you do have to have some special qualities to make laws in the State of Arizona, though.

Intolerance is good. So is short-sightedness.

Most important, in Arizona – a state so adamant that English be the only language used in public that it bars qualified candidates from elections for not speaking English well enough, stopped trying to fire teachers for speaking English with a foreign accent only after being threatened with a federal lawsuit and has required public schools to Bowdlerize the state's history to minimize the role of its historically large Spanish-speaking populace – it is no longer required that lawmakers have any understanding of the English words they use as long as they're not pronounced with a Latino accent.

Take this example, from Arizona House Bill 2549: "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." – Arizona House bill 2549, amending an existing law by replacing "telephone" with "any electronic or digital device."

The proposed law – passed by both houses of the Arizona Legislature but not yet signed into law – "takes criminalizing speech to an entirely new level," according to the Daily Caller.

Violating the law could net you a fine of as much as $2,500 and six months in jail, even though the law explicitly violates the First Amendment by trying to keep people from speaking their minds with threats that anything contrary they have to say will be classed as a crime.

Arizona law is not only wrong, it's bad

The language of the proposed amendment reveals two things that should shame Arizonans:

  • First: Arizona's legislators don't know the difference among the words " terrify, intimidate, threaten, harass, annoy or offend," or where to draw the line between language that, under the right circumstances, count as assault and those that describe an opinion different from your own.
  • Second: Arizona's legislators don't understand the difference between the telephone and the Internet.

    On the telephone a stalking wanting to terrify, intimidate, threaten or harass a victim is able to reach into the victim's home, get direct, real-time, one-to-one access to a victim and impose a load of harassment on someone who never asked for it, never went anywhere it could be perceived by accident and may have taken extraordinary steps to avoid the stalker's call in the first place.

    On the Internet, except for email and instant messaging, the ugly language of trolls is posted on public forums or mailing lists that are open to almost anyone and which require "victims" to seek out places where the abusive language exists.
  • Third: Under a strict interpretation of the new language, the bill itself could be considered an effort to terrify, intimidate, threaten, harass, annoy or offend those who don't agree with it or who like to juice up online discussions with opinions designed to annoy or enrage other participants. So, by endorsing the language of the bill, Arizona legislators apparently didn't realize they were actually violating it.

The purpose of the bill is to reduce or eliminate cyberbullying – taunts and harassment directed at others in order to intimidate them.

That's a fine goal, and probably appropriate in specific circumstances that already include restrictions on freedom of speech – between students in a school, opponents in a lawsuit or between a victim and a stalker hoping online harassment doesn't violate a judicial restraint order.

The language doesn't just cover serious criminal harassment or intimidation, though. It covers anything designed to annoy, discomfit or offend an audience that could range from the next-door neighbors to nerf herders from the outermost frontiers of Siberia.

Stalkers making a phone call or sending a text message have a pretty good idea who is going to receive the message.

Stifling open debate, not just cyberbullying

Online there's no way of knowing who the audience is.

Online the act of purposely annoying people is known as "trolling," as in being a troll, fishing for trouble. A troll is a starter of arguments, hurler of epithets, expounder of racist or debunked theories or thrower of monkey wrenches into the machine.

In French it's pronounced "provocateur."

In English (which Arizona requires) the historical and literary term for trolls has varied: satirist, iconoclast, crank, critic, whistleblower, protester, heretic, individualist, maverick, radical, lunatic and "my learned friends in Congress."

For most, the correct term is a##hole, but the language of the bill doesn't give any way to determine which annoying iconoclast in an online forum is a provocateur and which is an asshat.

There's also no way to draw a line between the words "terrify, intimidate, threaten, harass" – which are legitimate crimes defined by courts and laws elsewhere – and the words "annoy or offend," which are what happens around the dinner table at family gatherings or when anyone mistakenly brings up politics during coffee hour after church.

Banning anything likely to annoy anyone who might read something posted online would eliminate most open discussion of any issue, political, religious or social.

It might keep some from being offended, but it would keep far more from being enlightened by the revelation that not everyone believes the same unquestioned opinions they do.

Annoying others is the point, not the offense

That opportunity for discussion – and the chance to be annoyed and offended by it – is the reason our whole political system was set up as a system of checks and balances. It's a way to let opposing extremes come together and compromise on reasonable, practical decisions they both hate, but that benefit the country as a whole.

Most trolls are not doing anything noble, or literary or even defensible by pissing people off on purpose. They're just trying to stir up a little excitement and prove their significance.

Some are legitimate freethinking, counterintuitive interpreters of culture keeping up the American tradition of taking no idea as too sacred to be attacked, even if only to see if it makes enough sense that it can be defended.

Even some of them are asshats.

H.L. Mencken, for example, was cranky, unpleasant, anti-Semitic, atheistic and an admirer of Friedrich "God is Dead" Nietzsche," though Mencken only considered God "a bore."

Mencken regularly disparaged representative democracy, populism, creationism and the failure of the middle class to live up to his intellectual standards.

He was once arrested for selling "obscene, lewd or lascivious" material in Boston that had already been banned there (though the offending content was his political magazine The American Mercury, not anything juicily tittilating).

He offended Christians so regularly that he was called "the Anti-Christ of Baltimore," by Christian writers.

Mencken was a columnist at a time of tremendous competition among newspapers, often three, four, five or more in a single city, who understood the attention-getting value of the outrageous opinion. His were just more finely crafted and well expressed than competitors plowing the same ground.

He was glib, literary, well read, intellectual and extraordinary in his contributions to arguments about political and societal issues during the Roaring 20s, the Great Depression, World War II and the early days of the Cold War.

He was also an etymological commentator who wrote a significant analysis of the divergence between American English and British English – a detail about the diversity of the language Arizona's English-only legislature has failed to address or clarify.

He was a troll, but an extraordinarily talented one – one of the most quotable, certainly, anywhere, any time, no matter who his opinions might offend, even now.

He offended people in ways that may not have prompted them to think, but did raise and defend important points of view in public political debate.

In Arizona he'd be fined or on his way to prison after nearly every book or column.

Arizona legislators aren't ignorant because they don't read Mencken, of course.

Forget speaking English; learn to talk like an American

They're negligent because they don't read the language in the laws they pass. They're wrong to assume they can eliminate bullying or unpleasantness by telling people not to say things that might be offensive.

They're ignorant because they don't understand the difference between speaking English and talking like an American.

One they can measure by listening for accents and testing vocabulary.

The other requires courage, not only to speak your mind, but to understand the reasons you believe what you do, question whether your beliefs should be imposed on other people and, hardest of all, actually listen to what other people have to say even when they don't agree with you. Even when you're annoyed or offended by their beliefs.

That's how the marketplace of ideas is supposed to work. That's the goal the founders tried to write into the Constitution.

It's what Arizona has tried to ban, in schools, on the telephone and across the Internet.

It's more than a sloppy reading of a poorly written law. It's a violation of the most fundamental responsibilities of being an American.

Speaking English? Easy. Talking like an American, and listening when others do the same? Not so easy. Especially in Arizona.

    More from Mencken:
  • "Democracy is the art and science of running the circus from the monkey-cage." – H. L. Mencken, A Mencken Chrestomathy (1949)
  • "As democracy is perfected, the office of president represents, more and more closely, the inner soul of the people. On some great and glorious day the plain folks of the land will reach their heart's desire at last and the White House will be adorned by a downright moron." — H. L. Mencken, Baltimore Evening Sun, July 26, 1920
  • "Philosophy consists very largely of one philosopher arguing that all other philosophers are jackasses. He usually proves it, and I should add that he also usually proves that he is one himself." – H. L. Mencken, Minority Report: Notebooks, No. 57 (1956)
  • "No one ever heard of the truth being enforced by law. Whenever the secular arm is called in to sustain an idea, whether new or old, it is always a bad idea, and not infrequently it is downright idiotic." – H. L. Mencken
  • "All I ask is equal freedom. When it is denied, as it always is, I take it anyhow." – H. L. Mencken, H. L. Off the Grand Banks , 1925

Read more of Kevin Fogarty's CoreIT blog and follow the latest IT news at ITworld. Follow Kevin on Twitter at @KevinFogarty. For the latest IT news, analysis and how-tos, follow ITworld on Twitter and Facebook.

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