Tuesday, April 3, 2012

On the Law of Unintended Consequences

When the Arizona legislature passed House Bill 2459 (awaiting signature), its members (or at least those who voted for it) probably didn't stew much about the fact that it's pretty clearly unconstitutional.  Instead, I imagine, they recognized a problem (in the age of the internet, it's possible to be nasty over the internet) and decided that something had to be done.  Here's what they did (and I'm quoting Scott Greenfield who in turn quotes first the bill and then Eugene Volokh).

It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use a telephone 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.

It's grown tedious discussing what's wrong with such laws. Use a curse to characterize a supporter of this law on your iPhone and you've committed a crime?  What a bunch of assholes. Oops, guilty.

So, under the statute, posting a comment to a newspaper article — or a blog — saying that the article or post author is “fucking out of line” would be a crime: It’s said with intent to offend, it uses an electronic or digital device, and it uses what likely will be seen as profane language (see, e.g., City of Columbia Falls v. Bennett (Mont. 1991)). Likewise if a blog poster were to post the same in response to a commenter’s comment. Likewise if someone posts something in response to an e-mail on an e-mail-based discussion list, or in a chatroom, or wherever else.
Of course, it's pretty much always a bad idea for legislators (and others with the power to enforce their will, I should add) to decide that they need to do something.  What happens, you see, is that something quickly becomes anything.  But anything typically achieves nothing.  Actually, that's not true.  Rather, the anything rarely achieves the desired result.  It does, however, achieve (typically) the wrong things.
I could carry on at length here about TSA as an example, but it's such an easy target, it hardly seems worth the typing.
There are the various versions of SORNA, the sex offender registration and notification acts.  They're designed to let everyone know where sex offenders who have paid their debt to society live so their houses can be burned down the neighbors can tell the children to play with Uncle Charlie or sign up to be altar boys instead.  SORNAs don't actually prevent sex offenses.  They just distract the cops from their real jobs.
There are the Stand Your Ground laws, too.  But really there's nothing much to add about the Trayvon Marting/George Zimmerman affair.  A young man is dead, seemingly for no good reason.  And while the rush to judgment (Zimmerman: Hero or Monster? You Make Up the Facts and the Law) is unseemly, it does seem pretty clear that if Zimmerman didn't have a gun, he wouldn't have shot Martin.  Whether he was secure in the shooting because he believed himself protected by the law is a completely different question.
And of course there was the law against crush videos.
But it's not just laws designed to address the big stuff we all fear daily.  (Remember the folks who thought it a miracle that the man who stopped to help a distressed child didn't abduct her and chain her in a basement for decades because that's what at least half of all men would have done.)
Really, it's just about every time they try to solve a perceived problem with the legal system.  Consider, if you will, marriage.  Forget the contentious stuff.  I'm not talking now about same-sex marriage or DOMA.  No, I'm talking about the horrible problem of people marrying their close relatives. It's illegal everywhere and a damned good thing because if you could legally marry a close relative why it's pretty clear that almost everyone would and then we'd all be living in what's stereotypically thought to be West Virginia.
Anyway, Ken Lammers in Virginia actually did what good lawyers do.  He read statutes and followed their language and discovered that . . . wait for it . . . 
It's illegal to marry in Virginia if you were ever divorced.
At least maybe.  They didn't mean to make it a crime.  And maybe nobody will get prosecuted for it.  But some cop on a morals crusade and the next thing you know the newlyweds are being strip searched at the local lockup.
I've quoted before the words of a fine judge who told me once that legislators should never be allowed to mess with criminal law.
They just fuck it up.

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