@Parody or @Crime? AZ Bill May Blur the Line

Arizona State Representative Michelle Ugenti (R-Scottsdale) introduced Arizona House Bill 2004 in December, which would amend Arizona’s criminal code and make it a class 5 felony to impersonate somebody online, including, specifically, on a social networking site. A class 5 felony carries in Arizona a presumptive sentence of a year and a half imprisonment. Rep. Ugenti was quoted saying that she was inspired to propose the bill after one of her constituents approached her to tell her about being harassed on Facebook and other sites, but she did not elaborate further.

Indeed, cyberbullying is a rampant issue, and it may lead to serious physical and emotional harm (and even death, as in the sad case of MeganMeier). There is a legitimate state interest in preventing or limiting such harm. But people engage in online impersonation for a whole mix of reasons, and one could easily see a public figure threatening to use such a law against an account that was created for completely laudable ends, such as criticism and comment. 

It's worth noting that Rep. Ugenti may have personal reasons for proposing this law. Rep. Ugenti has inspired fake Twitter accounts, including @RubbingUGently, which started publishing last year to comment on a crude joke made by Michelle Ugenti sotto voce (but with microphones open) while chairing a committee meeting last February. I will let the readers discover it by themselves (see the video of the meeting at 2:14:30). Probably riding the publicity wave created by the introduction of HB 2004, another Michelle Ugenti fake Twitter account, @RepMUgenti, was recently created.

According to the Arizona bill, a person commits online impersonation if she would:

without obtaining the other’s person consent and with the intent to harm, defraud, intimidate or threaten any person, uses the name or persona of another person to . . . (1) create a web page on a commercial social networking site or other Internet website; (2) post or send one or more messages [on these sites].

Would a prosecution against accounts like @RepMUgenti and @RubbingUGently be successful under this law?

Consent

It does not seem that whoever started these accounts had obtained Rep. Ugenti’s consent, so we can move on quickly to the other elements.

Name or Persona

Did the accounts use Rep. Ugenti's "name or persona"? It ultimately will depend on how the Arizona courts interpret those words.

The owner of the @RubbingUGently account posts under the name "Michelle." "Michelle @RubbingUGently" is close to Michelle Ugenti’s name, but it is not her actual name, so that alone might not be enough. However, the avatar of @RubbingUGently is a picture of a brunette with exaggeratedly big red lips, wearing a blue dress similar to the one worn by Representative Ugenti when she made her joke. The user also claims to be from Scottsdale, just like Rep. Ugenti, and the use of "Lawmaker/Babymaker" in the profile alludes to Rep. Ugenti as a legislator and as a mother. The profile also alludes to her political party affiliation (GOP), and to the infamous joke (“Right-hand Aficionado”). We don't know how Arizona means to define "name" or "likeness," but at first pass this would seem to fit the bill.

No matter how a "name" is defined, the creator of @RepMUgenti will almost certainly be seen to have been using the name. The account name is very close, and the user is posting under the name "Michelle Ugenti." Furthermore, the @RepMUgenti avatar is a real photograph of Rep. Ugenti, and is thus clearly using her persona.

Intent to Harm, Defraud, Intimidate, or Threaten

HB 2004 would incriminate impersonating someone online with the intent to harm, defraud, intimidate or threaten any person. It is closely modeled after Section 33.07 of the Texas Penal Code, which came into effect in 2011, and it shares the Texas law's faults. While one could understand what it means to "defraud" or "threaten" someone by reference to other laws, neither of these two texts limit the broad term "harm," or define exactly what "intimidating" a person means.

The definition of these terms is, however, subject to constitutional restrictions. If the law is interpreted in an overbroad manner there is a risk that it may chill free expression. As the Supreme Court stated in Gooding v. Wilson, "persons whose expression is constitutionally protected