Arizona Cribs its Online-Impersonation Statute from Texas; Still Unconstitutional

 Posted on January 04, 2013 in Uncategorized

A proposal by Arizona legislator Michelle Ugenti to outlaw online impersonation has gotten some press in the last couple of days. Here's Arizona's proposed online-impersonation statute (PDF). It's a near-copy of Texas's online-impersonation statute, passed in 2011. There are some small stylistic differences, but the meat is the same. Here's the gist (with changes from the Texas statute to the Arizona bill redlined):

(a)A. A person commits an offense online impersonation if the person, without obtaining the other person's consent and with the intent to harm, defraud, intimidate, or threaten any person, uses the name or persona of another person to do either of the following:(1) create a web page on a commercial social networking site or other Internet website; or(2) post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program. (b)B. A person commits an offense online impersonation if the person sends an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person and all of the following apply:(1) without obtaining The person does not obtain the other person's consent ;. (2) with the intent to The person intends to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication ; and.(3) with the intent The person intends to harm or defraud any person.

The unconstitutionality of this statute, and of other statutes that would purport to limit what we can say (the Texas online-solicitation-of-a-minor statute) or publish (the Texas improper-photography statute), is a topic near and dear to my heart.

Foxnewsinsider (whoever the hell that is) published a breathless post headlined "AZ Bill would Ban Posing as Others Online, Regardless of Intent," which is as far from the truth as you might expect.

This new bill, [Judge Andrew Napolitano] says, would criminalize the impersonation attempt even if there was no harm done. "I would think the state has better things to do than get involved in this."The judge gave the example of a mother creating a Facebook account in the name of her child in order to teach him or her about the proper ways to use social media. Under such a statute, that mother could be prosecuted for impersonation.

The problem with these online-impersonation statutes is not that they would ban impersonation regardless of intent-they wouldn't. Each has an intent element. The mother who created a Facebook page in her child's name couldn't be prosecuted unless the prosecutor alleged that she intended to harm someone.

The problems with the online impersonation statutes are, rather, of overbreadth and vagueness.

These statutes act as a prior restraint, violating our natural and Constitutionally-protected right to free speech, because "harm" is undefined and might be construed to mean an injured reputation or even butthurt (neither of which is necessarily unprotected speech-the overbreadth problem), and because "using the name or persona of another person" might be construed to include all sorts of non-impersonative speech (the vagueness problem). For example, if someone had started a @fakepatlykos Twitter account ("using" Pat Lykos's name) and then used that account to make fun of Lykos, that person might find himself charged with a felony even though he hadn't impersonated Lykos and hadn't caused any harm that he didn't have an absolute right to cause (yes, we have the right to cause each other harm; the law does not protect us from all hurt).

It's nonsense, of course, and no prosecutor with a lick of sense would file such a charge, but not all prosecutors have a lick of sense, and the constitutionality of a statute does not depend on the forbearance of prosecutors. If a prosecutor can base a prosecution on the content of speech, and that speech is not unprotected, the statute is unconstitutional.

No other state uses the same language in its criminal-impersonation statute. So it's a race between Arizona and Texas criminal-defense lawyers to see who can get this garbage held unconstitutional first. Maybe the Arizona civil-liberties folks (there's a dirty job) can keep it from even passing; I expect the Texas challenge to start working its way through the courts soon (if some other lawyer hasn't started that ball rolling already).

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