Arizona HB 2549: Criminalizing Online Speech

In 2012, the Arizona legislature passed House Bill 2549, a measure that would have expanded the state’s existing telephone harassment statute to cover the internet and all electronic communications. The bill’s language was sweeping in scope, making it a criminal offense to use any electronic device to communicate speech intended to “annoy,” “offend,” “harass,” or “terrify” another person, as well as certain categories of sexual speech.

The bill landed on Governor Jan Brewer’s desk, prompting immediate pushback from First Amendment advocacy organizations who warned that its vague and overbroad language could criminalize vast amounts of constitutionally protected expression.

Constitutional Problems With the Bill

The Media Coalition, a trade association representing content industries and First Amendment interests, identified several critical constitutional deficiencies in the legislation. Their analysis highlighted the following concerns:

The bill provided no definitions for its key terms — “annoy,” “offend,” “harass,” or “terrify” — leaving enforcement entirely to subjective interpretation. The terms “lewd” and “profane” were likewise undefined. “Electronic or digital device” was defined so broadly that it encompassed any wired or wireless communication device and multimedia storage device.

Most critically, the bill was not limited to direct one-on-one communications between specific individuals. It applied to websites, blogs, mailing lists, and all internet communication. There was no requirement that the communication be repetitive or unwanted, no requirement that any specific person actually feel offended or frightened, and no clarity about whether the intent to offend needed to be directed at any particular reader or subject.

Protected Speech at Risk

The bill’s implications for protected speech were far-reaching. As First Amendment advocates pointed out, much speech that is constitutionally protected is specifically designed to provoke, challenge, or unsettle.

The examples were numerous: a Danish newspaper’s publication of cartoons depicting Muhammad, intended as commentary on religious tolerance, could have been prosecuted if an Arizona resident found them profane and offensive. Political commentary from figures across the ideological spectrum — whether progressive satire or conservative polemic — frequently employed language intended to provoke. Horror fiction, dark comedy, and confrontational art would all potentially fall within the bill’s reach.

Even routine online exchanges between sports rivals, often conducted in deliberately provocative language, could have triggered criminal liability under the statute’s terms.

Implications for Digital Publishing and Online Culture

The bill posed particular threats to cartoonists, publishers, and creators who produce material intended to shock, satirize, or criticize. The comic book industry, which was rapidly expanding its digital distribution at the time, faced especially acute vulnerabilities. Taboo-pushing work by underground and alternative cartoonists, incendiary graphic novels, and the broader culture of online message boards and fan communities all operated in territory the bill would have potentially criminalized.

With more titles being released digitally each week and an increasingly active ecosystem of professional and fan exchange happening online, the legislation represented a direct threat to the creative and commercial landscape of digital publishing.

The Fundamental Legal Conflict

While the stated goal of protecting people from harassment was legitimate, constitutional law experts noted that legislators could not achieve this by criminalizing categories of speech protected by the First Amendment. All speech carries a presumption of constitutional protection against content-based regulation, subject only to narrow, historically established exceptions such as true threats and incitement.

The bill’s failure to draw meaningful distinctions between genuine harassment and protected expression meant that, if signed into law, it would almost certainly face constitutional challenges — and likely fall to them.