Here’s an interesting case: Someone posts a video on YouTube showing State Rep.Tarah Toohil (R PA) as a young woman smoking what appears to be a bong and about to kiss a woman sitting nearby. Rep. Toohil acknowledges that she is the young woman in the video, but in a video response says “I am not that young woman today,” and denouncing this “blatant and personal attack on me as a legislator …”
So far so good. But next, “Anonymous” posts a video, just before election day, urging Toohil to change her position on legalization of marijuana or else face additional “exposure” of her “secrets.”
It featured an image of an empty suit, with a question mark in place of a head, as well as a montage of the black-and-white Guy Fawkes masks that were popularized by the film V for Vendetta and that have become a symbol for protests such as the Occupy movement. The 85-second video borrowed the slogan of Anonymous, the elusive hackers who have taken on everyone from the Church of Scientology to banks: “We are Anonymous. We are Legion. We do not forgive, we do not forget. Expect us.” The voice-over, female and British-accented, said the “legions” were disappointed by Toohil’s response to the surfacing of photos showing her with what appeared to be marijuana. The voice demanded she support decriminalizing the drug – or else. “Everyone has secrets,” the voice intoned. “Please do not give us a reason to expose yours.”
The PA State police is investigating this as a possible felony. The Phil. Inquirer story quotes George Parry, a Philadelphia defense lawyer and former state and federal prosecutor, who said, after reviewing the “secrets” video, that “on its face, it could constitute criminal conduct in that it aims to sway a legislator.
“This appears to be an attempt to influence legislative action . . . a threat to cause harm to this legislator’s reputation,” he said. “And I think that has broader social implications than just a private citizen being subjected to blackmail.”
I must say, I wonder about this. Surely it can’t be enough to “threaten to cause harm to a legislator’s reputation” to land one in prison — that,surely, is what newspapers and bloggers do all the time, and is at the core of what the First Amendment is designed to protect; a legislator’s “reputation” surely being a matter of the most significant public concern. I take it we would all agree that the law does not (and could not, consistent with the first Amendment), prohibit me from walking into Rep Toohil’s office and saying:
1. “Rep Toohil, if you don’t change your position on legalization of marijuana, I am going to urge all my friends to vote against you.”
2. “Rep Toohil, if you don’t change your position on legalization of marijuana, I am going to publish the paper I have written, analyzing your votes in the legislature and showing that you are a closet Liberal.”
3 “Rep Toohil, if you don’t change your position on legalization of marijuana, I am not going to give you that $10,000 contribution I was planning to give your campaign committee.”
4. “Rep Toohil, if you don’t change your position on legalization of marijuana, I’m going to attack you in every forum I can to try to get you defeated at the polls.”
And I take it we would all agree that if I were to say:
“Rep Toohil, if you don’t change your position on legalization of marijuana,I’m going to kidnap your daughter and/or set your house on fire”
Pennsylvania can and would throw me in jail.
This case, then, does seem to fall into a rather interesting middle ground:
“Rep Toohil, if you don’t change your position on legalization of marijuana, we are going to reveal true facts about you that you would rather not have revealed.”
Is that — can that be — a criminal offense? Without (a) any threat of physical harm or (b) any demand for payment in exchange for withholding the “secrets”?