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.