Friday, 16 April 2021 17:47

GUEST EDITORIAL: 'Impersonation' ban will punish protected speech

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Before they vote to make online impersonation a crime, state senators should chew the fat with Jim Ardis.

The mayor of Peoria, Illinois, Ardis overreacted to a parody Twitter account created to mock him in 2014. Police raided Jon Daniel’s home and sought to charge him under a state law prohibiting people from impersonating public officials.

Peoria brought the full weight of city government to bear against Daniel, but the mayor didn’t realize — or simply didn’t care — that the First Amendment protects parody and satire. Reeling from negative publicity, the city paid $125,000 to settle an American Civil Liberties Union lawsuit filed on Daniel’s behalf.

Seven years after Ardis became an ignoble footnote in free speech law, North Carolina is setting the stage for similar constitutional clashes.

House Bill 341, titled Protection from Online Impersonation, cleared the N.C. House on a bipartisan 118-0 vote Wednesday afternoon. If it survives Senate scrutiny, politicians will wield a terrifying new weapon to silence their critics.

The legislation targets scammers who create social media, email or mobile app accounts in other people’s names, but it fails to distinguish fraud and harassment from humor and criticism. Profiles that spoof elected officials, celebrities and public figures by using their names and pictures are commonplace — particularly on Twitter, where clever trolling is an art form.

While some online doppelgangers roast their real-life alter egos, many merely subject them to some good-natured ribbing. Former N.C. Labor Commissioner Cherie Berry embraced @ElevatorQueen, the parody Twitter handle that quickly eclipsed her real account, @CherieBerryNC, in popularity and became a favorite among the #ncpol community of politicians, lobbyists and statehouse reporters.

As soon as Josh Dobson was sworn in as labor commissioner, an @ElevatorKingNC account materialized to poke fun at the new face appearing on state elevator inspection placards. Dobson, whose real account is @JoshDobsonNC, is very much in on the joke. Even if he wasn’t, the First Amendment shields the spoof from sanction.

Rep. Donna White, R-Johnston, is House Bill 341’s primary sponsor. Through her legislative assistant, White declined an interview request. The Times editorial page emailed White a list of questions and hadn’t received a response at press time.

HB 341 includes both criminal and civil penalties, allowing people to recover up to $10,000 in actual damages from online impostors, plus punitive damages and attorneys’ fees.

“Any person who knowingly and without consent impersonates another person through or on a website or by other electronic means for purposes of harming, intimidating, threatening or defrauding another person, including the misrepresented person, is guilty of a Class H felony,” the bill states.

To the extent HB 341 would punish genuine criminal conduct, it’s redundant. The latter two elements — “threatening” and “defrauding” — are already illegal, defined as communicating threats, identity theft and obtaining property by false pretense.

The other elements, “harming” and “intimidating,” are vague, subjective terms that can be contorted to fit almost any fact pattern. A humorless elected official could say a parody account is harming his or her reputation and call in the cops.

HB 341 contains exceptions for law enforcement officers and state-licensed security workers who may create fake profiles as an investigative tactic, but there’s no carve-out for comedy. It’s not at all farfetched to predict that pranksters, not identity thieves lurking in the internet’s dark corners, will bear the brunt of enforcement.

This broadly written bill is a solution in search of a problem. Fraudulent, threatening conduct is already against the law. When it comes to deterring deception among networks of family members, friends and acquaintances, social media companies prohibit impostor accounts in their terms of service. Fake profiles are swiftly deactivated when reported to Facebook, Twitter and Instagram.

If North Carolina enacts HB 341, the inevitable abuses will tee up a textbook First Amendment claim. Prosecutors won’t be able to make many charges stick before a court ultimately strikes down the law as facially unconstitutional.

The wheels of justice turn slowly, however, and countless people could face investigation and arrest before judges set things right. It’s now up to the N.C. Senate to save satirists — from @ElevatorQueen and @ElevatorKingNC to unheralded parody peasants — from the clutches of mirthless authoritarianism.