"Words must do more than offend, cause indignation, or anger the addressee to lose the protection of the First Amendment," a municipal judge reminded us this week in a case involving social media, bow hunting, and a bear called "Pretty Mama."
On trial was Susan Kehoe, an animal rights activist in New Jersey who faced a harassment charge and a possible 30 days in jail.
Under New Jersey law, someone commits criminal harasssment by engaging in a "course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person."
Last October, Kehoe called out two men as the potential culprits in the death of Pretty Mama, based on a video someone had recorded of the bear being dragged from the woods. In a public Facebook post, Kehoe wrote that she "believed" Michael Bush and Nickey Pisco were the killers and linked to their Facebook profiles.
Bush and Pisco reported Kehoe to the Vernon Township Police for harassment, but the police declined to press charges. The men then filed a citizen's complaint, saying they had received death threats as a result of Kehoe's post and Bush had suffered a loss to his business.
Bush initially alleged that Kehoe had posted his home address, but this was later revealed as false. Kehoe had simply linked to his Facebook page, where Bush himself had publicly posted his address.
Still, prosecutor Lisa Thompson argued to the court that Kehoe's speech went beyond permittable free-speech parameters. "There is a not a First Amendment right to incite your followers to cause annoyance and alarm and death threats," she told the court in July.
Bush testified in court that he received threats through direct messages, public Facebook posts, and comments on his business' Facebook page. But none of the threats came from Kehoe directly, nor had she urged people to threaten Bush and Pisco.
On Monday, Mount Olive Municipal Court Judge Brian J. Levine found Kehoe not guilty, citing a 2016 case in which a state appellate court overturned a harassment conviction.
In that case, a former Union County corrections officer was convicted on two counts of harassment "based upon his creation of two 'flyers' that contained the wedding photo of a fellow Union County corrections officer (the Sergeant), which was altered to include vulgar handwritten comments in speech bubbles." But the appellate court reversed the conviction, holding that "the commentary defendant added to the Sergeant's wedding photograph was constitutionally protected speech."
Kehoe's attorney, Daniel Perez, said the judge's ruling in her case "shows that the First Amendment matters."