Mimesis Law
24 June 2017

Update: Georgia House Passes Bill That Would Outlaw Most News Outlets

Feb. 26, 2016 (Mimesis Law) — Georgia, I know sometimes you get it into your head to pass some poorly written laws.

Remember that time you passed a law that enhanced criminal penalties if the crime was committed out of “any bias or prejudice,” and you didn’t think through that “any bias or prejudice” included being a fan of a rival sports team, or strongly opposed to cashmere sweaters? The Supreme Court of Georgia had to knock it down. That was a little embarrassing, right?

Remember that law you passed that made it a crime for sixteen-year-olds to electronically transmit descriptions of nudity with the intent to arouse? And then when it came time to explain how it didn’t violate the First Amendment, no one had ever thought through whether speech meant to “arouse a minor” has ever been held to be unprotected?[1]

I want you to remember that feeling, because you’re about to have it again. This law has just passed in the Georgia House of Representatives:

It shall be unlawful for any person knowingly to furnish or disseminate through a computer or computer network any picture, photograph, drawing, or similar visual representation or verbal description of any information designed to encourage, solicit, or otherwise promote terroristic acts.

Let’s take a moment together, shall we, and think through the consequences.

First, the practical. Your bill makes it illegal to disseminate any information designed to “encourage, solicit, or otherwise promote terroristic acts.” It doesn’t matter that it’s not your intent to promote terrorism, as long as the content you’re disseminating is meant for that purpose and you knew it.

So right off the bat, we know that the intent requirement is wonky. Let’s say you’re a satirist, and you’ve made it your life’s work to ridicule terrorist propaganda videos. You post videos of terrorist propaganda on your website, then underneath, insert commentary mocking the clumsy editing, poor arguments, and ugly wardrobe of the participants. Because you “know” the material you are criticizing is designed to promote terrorism, you meet the intent element of the statute even if your goal was to attack it.

And by the way, the “prosecutors will use discretion” argument is particularly bad here. When you create a law that criminalizes a wide swathe of protected and even laudable speech, you know that its ultimate purpose will be to punish marginalized or unpopular groups and people.

Second, let’s go ahead and see if any court would uphold this law. Our first question: Is this a content-based restriction on speech? Would a jury have to look at the content of the speech to see if the speaker violated the statute? The answer here is clearly yes—a picture of grumpy cat would lead to an acquittal, a picture of Osama Bin Laden standing heroically on a mountain top could lead to a conviction.

Since the law is content based, it gets the strictest level of scrutiny under the First Amendment, unless it is a historically unprotected category of speech. So we ask, is speech “promoting” terrorism:

  1. Child pornography
  2. Obscenity
  3. Defamation
  4. Fighting Words
  5. Incitement to imminent lawless action
  6. A true threat
  7. Speech integral to criminal conduct
  8. Fraud
  9. “Speech presenting some grave and imminent threat the government has the power to prevent”?

We’re just going to ignore category 9 for the moment, since the United States Supreme Court has ruled it is “the most difficult to sustain” and tends to get invoked in unique emergency situations, like when the New York Times got hold of the Pentagon papers.

We know it’s not fighting words, because it’s literally never fighting words, and that category is restricted for things you yell into someone’s face to get him to punch you (i.e. it’s more about you being a jerk at a Little League game than the content of your speech).

And we know it’s not speech integral to criminal conduct, because Georgia law already forbids aiding, abetting, advising, encouraging, hiring, counseling or procuring a person to commit a terrorist act.

So that really just leaves incitement to imminent lawless action. And hey, what do you know, the United States Supreme Court already ruled on almost exactly this issue almost fifty years ago when it said that a law that made it illegal to “’advocate or teach the duty, necessity, or propriety’ of violence ‘as a means of accomplishing industrial or political reform’” violated the First Amendment.

In other words, you can’t prohibit a speaker from vowing “revengeance” to protect the “white Caucasian race,” so you probably also can’t stop a speaker from vowing “revengeance” for ISIS, or Al-Qaeda, or the PKK. Speakers remain free to promote violence, even terrorism, so long as this incitement is not an immediate call to action.

Okay, now comes the hard part. Any court that looks at this content based restriction on speech not within the nine categories is going to hold it presumptively invalid unless you can show it is narrowly tailored to serve a compelling government interest (here, preventing terrorism). And newsflash (if those are still legal), any law that would make this broadcast from CNN illegal is probably not narrowly tailored to prevent terrorism.

So, Georgia, please do me a favor. Don’t make me wait for prosecutors to start charging people with this obviously unconstitutional crime. Don’t make me wait for some smart criminal defense attorney to notify the State that the law is unconstitutional within ten days of arraignment (because Georgia says its fine to convict you of an unconstitutional crime so long as you didn’t spot it soon enough).

Instead, just strike it. It’s useless. It’s unconstitutional. And it’s a waste of everyone’s time.

Update: On further background research, the unconstitutional portion of this statute predates the House’s vote on the terrorism bill. Georgia has actually banned dissemination of information promoting terrorism since 1995, although research does not turn up any convictions. I apologize for the error and any confusion.

[1] Strangely, the Attorney General’s Office did not file a brief or appear at oral argument, despite its role defending the constitutionality of Georgia’s laws. The State brought in an evangelical Christian activist to argue the other side of the case.

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