Bill description: HB 559 makes it a crime to use electronic communications to threaten certain elected or appointed officials.
Does it violate the principle of equal protection under the law? Examples include laws which discriminate or differentiate based on age, gender, or religion or which apply laws, regulations, rules, or penalties differently based on such characteristics. Conversely, does it restore or protect the principle of equal protection under the law?
HB 559 expands on an existing statute (Section 18-1353A, Idaho Code) that makes it a crime to threaten certain elected or appointed officials. Specifically, the bill adds language stating that it is (for a first offense) a misdemeanor carrying a penalty of up to one year in jail and a $1,000 fine if someone "transmits electronically any letter, paper, writing, print, missive, document, video or photographic image, or voice recording containing any threat to take the life of or to inflict bodily harm upon" such officials.
Equal protection under the law is a foundational principle of western justice, yet HB 559 adds ways in which a threat against those in a protected class is considered a more extreme crime than a similar threat against other individuals.
Discrimination is widely abhorred today and historical laws that treated crimes against women or minorities as less severe are routinely criticized, yet here we have similarly discriminatory laws that treat some people's lives and liberty as more valuable than others based, solely on their choice of employment.
Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?
In addition to the equal protection problem discussed above, there are some constitutional concerns with HB 559, specifically related to free speech and gun rights.
The specific crime created by this statute includes making "any threat … to inflict bodily harm upon" a wide range of elected or appointed government officials. Most references in Idaho code to "bodily harm" refer to either "great bodily harm" or "serious bodily harm," but this statute does not include any such modifiers. One of the few other places where we find an unmodified statutory reference to bodily harm is in Section 18-903, Idaho Code, which includes it in the definition of battery along with "unlawful touching." Based on the statutory language, it does not appear that the reference to "bodily harm" requires any specific degree of severity.
We must also consider that the term "any threat" contains no qualifiers about the feasibility, likelihood, or severity of the threat.
The new language added by HB 559 defines "transmit electronically" as meaning, "to use any device that provides transmission of messages, signals, facsimiles, video or photographic images, voice recordings, or other communication between persons."
When we look at all this, we must conclude that a frustrated constituent making a Facebook post saying that a legislator deserves to be "slapped upside the head" for a questionable vote would be a lawbreaker who could face up to a year in jail.
The problems do not end there, unfortunately. The statute also says, "If such threat is made while the defendant exhibits a firearm or other dangerous or deadly weapon, the defendant shall be guilty of a felony."
What does it mean to exhibit a firearm or other weapon in the context of a Facebook post? Would a photo of someone with a gun be enough? Many social media users have photos of themselves holding or shooting firearms.
Would a person who writes a disparaging social media post about an official be considered a felon if the profile photo attached to the post contained a weapon??
The language in Section 18-1353A, Idaho Code, is problematic enough. The language added by HB 559 makes it worse. Poorly defined and unacceptably broad terminology creates a constitutionally questionable statute that stands to inhibit free speech and compromise gun rights while applying the law in an unequal and discriminatory manner.