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).

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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4 Responses to Arizona Cribs its Online-Impersonation Statute from Texas; Still Unconstitutional

  1. Jon Bender says:

    I’ve been charged with this so called 33.07 ‘Internet Impersonation’ because I bought the domain of the person in question (a stalker of our family who had burglarized my sister & her boyfriend’s house) and posted the Dallas County Sheriff’s Dept mugshot, the alleged crime (2nd degree felony burglary of a habitation), and the address of the Lew Sterrett Justice Center saying: ”Hi, I’m in jail, you can write me at 100 W. Commerce St Dallas, TX 75201” . . . I was never arrested, made to post bond or even questioned. My grand jury hearing in on March 19th . . . thank goodness my attorney, Phillip Linder says I should have no problem getting off. As I did not disseminate any false information, I would agree. Had I just used the third person tense instead of what I call the $5.000 Letter I, then there would be no charges at all. The prosecution makes this case all on the tense of what I did. Let me know if you’d like a follow up on what happens, should be interesting.

    • Mark Bennett says:

      I would like a followup. While a grand jury might no-bill you (it probably depends on the prosecutor’s attitude), it wouldn’t have to. You:

      • Used the stalker’s name;
      • To create a web page;
      • With the intent to harm him.

      Even if you had not used the first person, your conduct would have fit those three criteria.

      This is what makes the statute overbroad and unconstitutional.

      I would like a followup, please. I hope that you are not, but if you are indicted, please ask that Mr. Linder call me. I’m ready to attack this statute.

  2. Anonymous says:

    I was also indicted on this. I think it is crazy. I did not know the law could be used to keep people from getting their feelings hurt. I accepted a plea for a third degree felony because I was scared out of my mind with no money. I feel very taken advantage of. The person who I did this too “hurt my feelings first,” but that’s okay.

    Being broke, I was not able to fulfill all of the requirements of the plea, so now I think they may have the power to just go ahead and sentence me. I am trying to find out if it is not too late, so that maybe I can get a public defender to challenge it, if it would be worth it. I feel like I didn’t even quite meet the requirements for the felony, because I messaged guys on craigslist his phone number. It wasn’t meant to ruin his “reputation,” and I hardly doubt anybody important, if anybody at all, connected the name with the phone number. I wanted him to see what it was like to be treated the way he treated me. I thought it was funny. Not quite a “feelings hurt” kind of issue. I also made a webpage with some random harmless name and posted a bunch of opinions I had of him and what I knew of him and personal things he confided in me with, which many people could confirm is true. I then emailed that page to a bunch of his friends and the prosecutors said that was a misdemeanor. I am at a loss. If that is a crime, then what is free speech, and what is that called when the news and politicians and friends and probably 90% of people do when they have something to say? Wow.

  3. anonymous says:

    Then shouldn’t rappers and actors be charged for opening twitter and facebook accounts using their stage names? I feel like this is out of line and it get’s used by prosecutors in small Texas towns to prosecute what they see as inappropriate or non republican.

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