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

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).

Narcissists Who Need Narcissists…

HOUSTON, TX – Criminal-defense lawyer Mark Bennett has recently announced his intention to take on representation of all rich people charged with crimes in the state of Texas, effective immediately. Recognizing that the filthy rich often face an unfair bias in the courtroom, Bennett, a Houston, Texas lawyer, seeks to acquit any and all rich people wrongfully charged with serious crimes.

No, not really.

It might be nice to corner the market on wrongfully accused fat cats, and even if such a press release didn’t net me a single additional affluent person (why would it?), non-rich clients like to imagine that rich people get better representation, so I might get more clients of average means. But I wouldn’t do it because issuing a press release like that would subject me to well-deserved ridicule* as a narcissistic asshat.

Kinda like Gary Ostrow.

Does anyone believe that issuing a press release announcing that he “has firmly stated that he will take on any celebrity criminal case, regardless of the severity of the accusation” and that he “is confident that his unparalleled experience and courtroom savvy can help defend the rights and freedom of high-profile stars” will actually get him more celebrity criminal cases? Does Ostrow? I doubt it. Celebrities generally choose the lawyers their agents or managers recommend, and agents and managers, while they often choose unwisely, aren’t likely to choose a lawyer based on a self-serving press release.

Ostrow knows, though, that there is a special class of potential clients who want to believe their cases are high-profile, because they want them to be high-profile. These potential clients want to be celebrities, because they believe that celebrities get the best of everything. 

We call these potential clients “narcissists.” 

File Ostrow’s bid to get more clients under “affinity marketing.”

(Apropos of celebrity:

)

*While I’m not averse to subjecting myself to ridicule—it’s good for my ego—I try to avoid deserving it.

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