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The Return of Criminal Libel, With Truth Not Being a Defense?

That's how I read the prosecution and conviction in State v. Ellison (Ohio Ct. App. Oct. 10). The facts:

[Ripley C.] Ellison and Savannah Gerhard were childhood friends but had a falling out during seventh grade. According to Ellison, the fallout occurred when her younger brother accused Gerhard of molesting him. The Hamilton County Department of Job and Family Services ("JFS") investigated the claim and determined that it did not have enough evidence to substantiate that the abuse had occurred.

As teenagers, Ellison and Gerhard attended the same high school. During the summer of 2007, Ellison posted on her Internet "MySpace" page a picture of Gerhard that was captioned "Molested a little boy," and she stated in her personal profile that she hated Gerhard. Ellison allowed for public, rather than private, viewing of her MySpace page.

After hearing about the posting from others, Gerhard used the Internet to view Ellison's MySpace page. Gerhard had previously observed a short remark by Ellison on a contemporary's MySpace page that also referred to the molestation accusation. But Ellison never directly communicated these postings to Gerhard, who also had a MySpace account.

Gerhard complained to authorities at her school about the postings. Ellison removed them from her MySpace page at the request of the school's resource officer investigating Gerhard's complaint. Ellison was then charged criminally for telecommunications harassment under R.C. 2917.21(B).

At a bench trial, Gerhard confirmed that Ellison had never directly communicated with her over the Internet and that she had sought out the postings. She added, however, that she had felt "harassed" by the postings and that she had overheard Ellison make a similar remark about her at school.

Ellison testified that she believed her brother's accusations against Gerhard were true. And she gave the following explanation for posting the offensive material: "I think that other people need to know how she is. And she denies everything, but a lot of people believe that she did it. And I was told that she did it. And so I think that other people have a right to know."

Subsequently, Ellison was convicted on one count of telecommunications harassment ... under R.C. 2917.21(B), which provides that "[n]o person shall make or cause to be made a telecommunication, or permit a telecommunication to be made from a telecommunications device under the person's control, with purpose to abuse, threaten, or harass another person." The state proceeded in this case under a theory that Ellison had posted a "rumor" on the Internet to harass Gerhard.

So we have a criminal prosecution for speech that supposedly "harass[es]" (or perhaps "abuse[s]") by making allegations of criminal conduct — but the state has no obligation to prove falsity, and the defendant isn't even entitled to a defense of truth. Sounds like a pretty clear violation of the First Amendment.

Fortunately, the Ohio Court of Appeals reversed the conviction, but unfortunately it didn't reach the First Amendment question. The court concluded that there was no evidence of the purpose to harass (defined by the court as "inten[t] to alarm or to cause substantial emotional distress to the recipient, not just to annoy," with the likely extra requirement that the speech "serve[] no legitimate purpose"):

The burden is not met by establishing only that the defendant knew or should have known that her conduct would probably cause harassment. The legislature has created this substantial burden to limit the statute's scope to criminal conduct, not the expression of offensive speech. Whether Ellison was liable for defamation was not established in the proceedings below and can be addressed in civil proceedings....

The state argued that Ellison's posting of the "rumor" after JFS had found the allegation unsubstantiated showed a purpose to harass. But JFS's conclusion did not mean that dissemination of the allegation could not serve the legitimate purpose of warning others of what Ellison believed to be criminal behavior. Moreover, it was undisputed that Ellison never directed a telecommunication to Gerhard despite the opportunity to do so. These facts rendered the state's position untenable.

But while I'm glad about the reversal, it still appears that someone can be prosecuted for speech — even speech to the public — so long as it "serves no legitimate purpose" in the eyes of a judge or a jury, and so long as the judge or jury concludes that it was intended to cause substantial emotional distress.

Say (for instance) that a university student has a political dispute with students from the Muslim Students Association, and then posts the Mohammed cartoons on his site (with or without an explicit connection to the particular students with whom he has had the dispute). He could then potentially be criminally prosecuted on the theory that the speech "serves no legitimate purpose" and "was intended to cause substantial emotional distress."

Of course, he could respond that he had the legitimate purpose of criticizing extremist strains of Islam (or Islam generally), but then the judge or jury would have to decide whether such a purpose is "legitimate," and whether that really was his purpose or whether he was just motivated by a personal grudge. And the human tendency to assume the worst motives of those with whom one sharply disagrees may well lead a factfinder to find the defendant guilty. (The same would naturally apply to a vast range of other speech that a factfinder could say is really motivated by a desire to distress someone, whether it's speech that's supposedly purposefully distressing to the target because of the target's religion, ethnic identity, sexual orientation, political beliefs, or personal history.)

Nor would this be limited to speech that is communicated directly to the unwilling recipient rather than to the public — as in traditional telephone harassment, which I think can be restricted, much as the mailing of unwanted letters to a person can be restricted, or persistent unwanted personal contacts can be restricted. This also includes speech said to the public at large, speech that might well reach willing and interested recipients who might be persuaded, enlightened, or cautioned by it.

Plus recall that, if punishment of such speech is allowed in criminal cases, it would also be allowed in civil cases and administrative cases, where the safeguards of proof beyond a reasonable doubt and criminal jury unanimity (the latter required in all but two states) won't be present. The factfinder could be a university administrator, who punishes political or religious commentary on the grounds that he, the factfinder, can divine the speaker's true purpose, and that the true purpose is to substantially distress some classmates (or faculty members or administrators).

I understand why the court resolved the matter on purely statutory grounds: The general rule is that courts ought to reverse a conviction on statutory grounds if the conviction is unsupported by a proper construction of the statute, and thus make it unnecessary to reach the constitutional question. But the decision does highlight the potential threat to free speech from statutes such as this one.

Finally, let me close with the separate concurrence from Judge Painter, which I agree with (except to the extent it suggests that an annoying posting "might well be a civil wrong" simply because it serves no legitimate purpose and is intended to alarm or cause substantial emotional distress, even when it's true or is pure opinion):

It is a scary thought that someone could go to jail for posting a comment on the Internet. If so, we could not build jails fast enough.

The statute on telecommunications harassment is the successor to the former telephone-harassment law. It is designed to prohibit harassing or threatening calls. Of course the calls may now be made over a traditional phone line, a cellular phone, or the Internet. But posting an annoying — but nonthreatening — comment on a website is not a crime under this statute. It might well be a civil wrong, but it is not jailable. The First Amendment would not allow punishment for making a nonthreatening comment on the Internet, just as it would not for writing a newspaper article, posting a sign, or speaking on the radio.

Steve:
I don't understand your statement that the defendant is not entitled to a defense of truth. Assuming for the sake of argument that the burden can properly be placed on the defendant, it appears this defendant simply wasn't able to demonstrate truth one way or the other, only a purported good-faith belief in the truthfulness of the rumor.

Perhaps this is a side point but your statement suggests that the court actually barred the defendant from presenting evidence that the statement is true, which the post doesn't reflect.
10.14.2008 1:51pm
Dave N (mail):
I agree the criminal prosecution is way over the top. However, I wonder why you state that truth is not a viable defense.

I agree that Ellison believes (heck, I'll stipulate that she passionately believes with all her heart and soul) that Gerhard sexually molested her younger brother.

But there is no evidence that this allegation is true. Had Gerhard been criminally convicted (or even adjudicated as a juvenile) for molesting Ellison's brother, and further, had Ellison been convicted of relaying this factual information (as opposed to her strong belief in its truth), then your headline would make sense.
10.14.2008 1:56pm
Dave N (mail):
Dang Steve, you beat me to it. We made the same point.
10.14.2008 1:56pm
loki13 (mail):
Prof. Volokh,

I am confused by your last comment about the concurrence re: civil liability. Considering that accusations of child molestation are often considered per se defamation, and that there is no CDA issue (going after the speaker here, Ellison, instead of MySpace), why isn't a civil tort action the correct route given the facts as presented?
10.14.2008 2:05pm
Dan M.:
Well, my only concern is that if this sort of stuff became a criminal offense, how many people would be in prison for calling OJ Simpson a murderer or calling Michael Jackson a homosexual pedophile? I certainly can't imagine that Norm MacDonald would be a free man right now.

Though, I can say that if someone that I went to school with publicly called me a child molester (assuming that it's not true), I'd prefer to beat him with a baseball bat. However, if it were true, I'd probably hang myself in shame.
10.14.2008 2:13pm
Eugene Volokh (www):
Steve, Dave N: The statute isn't limited to false statements -- it allows criminal punishment even of false statements, so long as they lack a "legitimate purpose" but instead have a purpose to "cause substantial emotional distress." That's why truth is not a defense. Even true statements are punishable under the statute as interpreted: Even if Ellison could persuade the factfinder that Gerhard in fact molested a little boy, that wouldn't exonerate her so long as the factfinder found that she had the purpose to cause substantial emotional distress rather than a legitimate purpose.

Loki13: I read the dissent as saying that annoying comments could be civil wrongs because they're annoying, under a test similar to that set forth in the statute, and not just when they're false. I've revised that sentence of the post, though, to make clear that this is my criticism.
10.14.2008 2:19pm
robmc (mail):
Eugene,

Your hypothetical confuses the issue. In the Ohio case, an individual, pursuant to statute, is prosecuted for harassment of "another person". As I understand the case, the government failed to prove a specific intent to harass. Your hypothetical moves beyond private harassment into the realm of group harassment. Does the government have no interest in protecting private individuals from speech that (1) targets an individual specifically and (2) is spoken with the specific intent to harass?
10.14.2008 2:19pm
Eugene Volokh (www):
Robmc: The government has lots of interests -- I just don't think the interest is sufficient to trump the freedom of speech, when the speech is said to the public (as opposed to just being sent to an unwilling target).

If you want to make the clearest example, imagine someone posting the Mohammed cartoons with a reference to students in the Muslim Students Association who had voiced public support for various Islamic causes. But even if the cartoons don't mention the students, it seems to me that a university administrator -- or a judge or jury -- could easily conclude that, in light of the parties' relationship, they were "directed at a specific person" in the sense of being aimed at distressing them. So someone who publishes the cartoons could be punished on the grounds that his real motive (as interpreted by the administrator) was to substantially distress some small group of students, at whom the speech was implicitly "directed" even if their names weren't specifically mentioned.

This is even more likely given that the term "harassment" in the context of hostile environment harassment law -- a different area, but the most famous use of the term -- does allow liability for statements that offend groups, on the grounds that they are offensive to particular members of those groups.
10.14.2008 2:30pm
robmc (mail):
So you see no distinction between posting a specific persons photograph with the caption "molester" on a public billboard vs. posting cartoons of Muhammad ? To me, you have a stronger argument if, in your hypo, photographs of specific members of the student organization are posted with captions that assert factually verifiable accusations. Do you see my point?
10.14.2008 2:36pm
pete (mail) (www):

But there is no evidence that this allegation is true. Had Gerhard been criminally convicted (or even adjudicated as a juvenile) for molesting Ellison's brother, and further, had Ellison been convicted of relaying this factual information (as opposed to her strong belief in its truth), then your headline would make sense.


There is the accusation from her younger brother. That is some evidence. Not enough in this case to bring charges, but saying there is no evidence that it is true is a bit of an exageration.
10.14.2008 2:45pm
A. Zarkov (mail):
"... not just to annoy, with the likely extra requirement that the speech "serve[] no legitimate purpose..."

Be prepared for the future when we get prosecutions asserting that "hate speech is not free speech." Whole areas of public debate will become closed off because such speech serves no "legitimate purpose." This has already happened in Europe, the UK and Canada. Write a book, give speech or make an Internet post critical of (say) immigration or AA or Islam and you might face criminal charges. Don't believe for a second that it can't happen here. It is happening.
10.14.2008 3:05pm
Houston Lawyer:
So under this statute, could the Gang of 88 at Duke be prosecuted or is moral preening a legitimate and protected purpose for speech?
10.14.2008 3:21pm
ShelbyC:

Though, I can say that if someone that I went to school with publicly called me a child molester (assuming that it's not true), I'd prefer to beat him with a baseball bat. However, if it were true, I'd probably hang myself in shame.



Well, which is it?
10.14.2008 3:36pm
Dan M.:
Shelby, we didn't go to school together.
10.14.2008 3:50pm
Floridan:
Prof Volokh, wouldn't a more apt analogy be one student posting the picture of the president of the campus Muslim organization with the caption, "committed terrorist acts"?
10.14.2008 3:51pm
Sk (mail):
Blah blah blah. In a word in which campus speech codes and 'hate speech' are widely accepted jurisprudence, who cares? Freedom of Speech as you want to define it hasn't existed for decades.

Sk
10.14.2008 4:30pm
Paul Milligan (mail):
Gene - so, what is the remedy ?

What if I posted something on Myspace about YOU ? Let's say I accused you of ( list nasty things here ), on the basis 'Well, someone TOLD me that he did it, so I told other people, so they belived me, so I figured everyone should know' ?

What if you did it to me ? What is my recourse ? Civil suit ? Which assume I could afford a lawyer of suitable skills to take on the great Prof V in court ( I assure you I do not, even if such a person existed ).

Do you propose that any and all unfounded public slander like the above case be allowed as 'free speech' ?
10.14.2008 4:35pm
pete (mail) (www):

Do you propose that any and all unfounded public slander like the above case be allowed as 'free speech' ?


Why does everyone seem to assume this is unfounded slander? To quote from the original post:

"Ellison and Savannah Gerhard were childhood friends but had a falling out during seventh grade. According to Ellison, the fallout occurred when her younger brother accused Gerhard of molesting him. The Hamilton County Department of Job and Family Services ("JFS") investigated the claim and determined that it did not have enough evidence to substantiate that the abuse had occurred."

Now I have no clue if the younger brother was molested or not. I only know from this post that the investagators thought there was not enough evidence to prosecute. The only two people who probably know the truth are the younger brother and Gerhard. But if the younger brother is telling the truth then it is not slander as that would mean Gerhard is indeed a child molester.

Is it slander for me to say OJ is a murderer since he was never convicted of it? Or pick another famous case where the guilt of the accused is in doubt.
10.14.2008 5:00pm
whit:

What if I posted something on Myspace about YOU ? Let's say I accused you of ( list nasty things here ), on the basis 'Well, someone TOLD me that he did it, so I told other people, so they belived me, so I figured everyone should know' ?

What if you did it to me ? What is my recourse ? Civil suit ? Which assume I could afford a lawyer of suitable skills to take on the great Prof V in court ( I assure you I do not, even if such a person existed ).

Do you propose that any and all unfounded public slander like the above case be allowed as 'free speech'


your recourse is a civil suit and/or contacting myspace. sorry, but saying (possibly) untrue mean things about people should not ever be a criminal act.

we shouldn't be using govt/law enforcement to ensure people are nice to each other and don't say mean things.

it gives govt WAY too much power.
10.14.2008 5:04pm
Dave N (mail):
Professor Volokh,

Thank you for your explanation. The Court of Appeals ended its opinion by stating:
we hold that the state failed to establish that Ellison had made a telecommunication with the purpose to harass, where she had a legitimate purpose for posting the accusation against Gerhard on the Internet, and where Ellison did not directly telecommunicate with Gerhard.
I acknowledge I did not read the decision before posting earlier. But this, the ultimate holding of the court, does seem to suggest that truth is a defense if there is some other potential legitimate purpose.

It doesn't go to your Muslim hypothetical, but it took me all of 15 seconds to realize that warning others about a potential molester would be "legitimate purpose" under Ohio law.
10.14.2008 7:39pm
Dave N (mail):
BTW, I agree that the civil courts can and should settle this if Gerhard wants to sue Ellison for defamation.
10.14.2008 7:41pm
Jay Myers:
I'm not sure I understand your objection, professor Volokh. The harm in slander or libel is defamation to the victim's reputation. You can't improperly harm someone's reputation with the truth so if what you said was true, you cannot have committed the crime.

This law is not concerned about reputation but about threatening or tormenting someone, especially through repeated efforts. You can harass someone with truthful statements and the effect is magnified by repeated efforts and efforts that exploit telecomunications.

The people who enacted and support this law are saying that the first amendment doesn't immunize you from the harm you cause with your words. The problematic part is how they define harm.
10.14.2008 7:43pm
David Schwartz (mail):
This law is not concerned about reputation but about threatening or tormenting someone, especially through repeated efforts. You can harass someone with truthful statements and the effect is magnified by repeated efforts and efforts that exploit telecommunications.


Exactly. This law is not concerned so much with the content of the words. It's more like a law against yelling something in someone's ears. It doesn't matter whether you yell something true or false.

Suppose someone accuses Jack Smith of being a child molester. The accusation is investigated, and it's determined that the accusation was malicious. (Of course, it cannot be disproven.) Can I take out ads in the newspaper, start a web site, and post to every blog I can find a copy of your picture with the caption, "Jack Smith was accused of being a child molester, and I believe his accuser. Do you want him near your children?"
10.14.2008 7:54pm
Paul Milligan (mail):
"Is it slander for me to say OJ is a murderer since he was never convicted of it? "

In fact, yes, it is.

And even more so, given that he was not merely 'never convicted of it', he was AQUITTED. By legal definition, he is innocent ( a jury said so ), he did not do it, that is a matter of law and of record.
10.14.2008 8:26pm
Nom de Blog (mail):
These sorts of violations of civil rights already occur in Canada, Britain and the EU. Now it's coming here as an inevitable piece of the expansion of the nanny state.

We should all be concerned.
10.14.2008 8:27pm
Nom de Blog (mail):
Paul Milligan,
Don't be an idiot. OJ wasn't found innocent. Juries don't do that in this country.

OJ was found not legally guilty, the fact that he killed two people in a jealous rage notwithstanding.
10.14.2008 8:29pm
pete (mail) (www):
<blockquote>
And even more so, given that he was not merely 'never convicted of it', he was AQUITTED. By legal definition, he is innocent ( a jury said so ), he did not do it, that is a matter of law and of record.
</blockquote>

Except that the jury did not find him innocent. Juries do not find people innocent, they find them not guilty beyond a reasonable doubt. There is a significant difference.

And you know, he did probably do it. A civil jury even found it to be the case that he did do it. That is also a matter of law and record. So are those jurors slandering him by ruling against him in the civil case?
10.14.2008 8:34pm
whit:

Can I take out ads in the newspaper, start a web site, and post to every blog I can find a copy of your picture with the caption, "Jack Smith was accused of being a child molester, and I believe his accuser. Do you want him near your children?"



yes, you can.

and you can and should be sued.

the issue here is - should it be CRIMINAL to do so?

i say no. period.
10.14.2008 9:19pm
John Thompson (mail):
get ready for a lot more of this sort of thing if Obama is elected. Revivial of the "fairness" doctrine will only be the begining.
10.14.2008 10:15pm
David Schwartz (mail):
yes, you can.

and you can and should be sued.

the issue here is - should it be CRIMINAL to do so?

i say no. period.
I'm not saying it's a good idea to criminalize it, but certainly any individual action for which the State can create civil liability, it can create criminal liability. There are some exceptions, of course, but I don't think any of them apply here.

So while it may be a dumb law, it's certainly constitutional.
10.14.2008 11:04pm
Eugene Volokh (www):
Paul Milligan: What do you mean by "in fact" "yes it is" slander to write that OJ is a murderer? It sounds like you're making a factual claim about what slander law says -- do you have any authority for that proposition? I've never heard of any such authority, but maybe I missed something.

Moreover, recall that OJ was actually found liable for the death of Ron Goldman in the civil case. My sense is that if OJ sues me for saying he's a murderer (a term that in lay language simply means "someone who killed someone without justification," not "someone who has been convicted of murder in a criminal trial"), I can get summary judgment simply by bringing in evidence of that civil verdict. That's collateral estoppel, or issue preclusion, as it's sometimes called. There is also another argument for why saying "OJ is a murderer" wouldn't be actionable, which I won't get into here; but I'm pretty sure the collateral estoppel argument is an open-and-shut one.

But the last paragraph focused on the specific detail that as to OJ there is a civil verdict establishing his guilt by a preponderance of the evidence (and, I think, even by clear and convincing evidence, which I believe was required for the punitive damages award, though that's not important here). Even if there had been no such civil verdict, that would just mean that OJ would have to prove that my statement about his factual guilt was false; his having been acquitted would not be enough.
10.15.2008 4:08am
Mike Thomsen (mail) (www):
whit,

When it is that severe, why not? Do you have any idea what kind of violence people are willing to do to those accused of sexually molesting children? How about the damage to a person's reputation that comes from accusations of any felony at all? You can't make everyone who saw the accusation read and accept a recantation of the accusation. Some of these things have lasting reputation scars that will do serious harm to a person's future.

You and Prof. Volokh seem to have little appreciation for why there is a public interest in seeing to such accusations getting severely punished.
10.15.2008 1:46pm
whit:

When it is that severe, why not? Do you have any idea what kind of violence people are willing to do to those accused of sexually molesting children? How about the damage to a person's reputation that comes from accusations of any felony at all? You can't make everyone who saw the accusation read and accept a recantation of the accusation. Some of these things have lasting reputation scars that will do serious harm to a person's future.



nor will criminally prosecuting the offender fix these problems either.

the point is that it should not be a CRIME.

i'm not saying it's not a bad thing.
10.15.2008 6:19pm