Crime to Tweet About People Intending to "Abuse" Them?

That's the legal theory behind a case just filed by prosecutors in Ohio.

Mehros Nassersharifi is being charged with making "a telecommunication" "with purpose to harass, intimidate, or abuse a person at the premises to which the telecommunication was made" (Ohio Rev. Code § 2917.21(A)(1)), by

creat[ing] a Twitter account named "Perrysburg Girls Ranked" and post[ing] numerous girls names which contained descriptions of their physical attributes in a derogatory and abusive manner, including a derogatory and abusive  manner, including a derogatory post about a female of Jewish ethnicity.

The Twitter account apparently had at least 15 posts, which

contained female student's names, with a number beside them, and a description of them.

Many of the posts contained derogatory, harassing and abusive descriptions of their physical attributes. One of the posts contained a derogatory description of a female of Jewish ethnicity. The post read, "The Jew. Other than the fact that she should have been perished along with the 6 million back In the 1940's, she's annoying as hell, she has a weird chunky body. NO ass, no tits, and an ugly fucked up face. Jumps from guy to guy, and no real positives to dating her. I came daddy brings her to a 61."

Now this is obviously nasty behavior. While I think that even it is constitutionally protected (there's no established First Amendment exception that covers it), I have to agree that little would be lost to public debate if people couldn't publicly insult high school students' appearance, and say that they ought to have been killed.

But nothing in the statute that the prosecutor is using is limited to such speech. Instead, the statute applies to a vast range of speech—at least if one accepts the prosecutor's theory that a Twitter message is "made … to" "the premises" of everyone who might read it:

(A) No person shall knowingly make or cause to be made a telecommunication, or knowingly permit a telecommunication to be made from a telecommunications device under the person's control, to another, if the caller does any of the following:

(1) Makes the telecommunication with purpose to harass, intimidate, or abuse any person at the premises to which the telecommunication is made, whether or not actual communication takes place between the caller and a recipient; …

Tweeting about government officials is a crime, if a prosecutor and jury decide they were sent "with purpose to … abuse" the officials (or "to harass" them, whatever that means). Same for messages (or Facebook posts or blog posts) about activists, businesspeople, and others.

Same for messages that "abuse" by condemning people's actions or ideologies, and not just their looks. Nor is the law limited to anti-Semitic or otherwise bigoted speech; indeed, R.A.V. v. City of St. Paul (1992) makes clear that it would be unconstitutional for the law to be so limited.

Online newspaper articles would be covered, too, if the prosecutor and jury decide they were posted "with purpose to … abuse" the people being written about. Ohio Rev. Code § 2917.21(F) does provide an exception for employees or contractors of various media outlets, but that exception applies only to certain other provisions of the law, not to (A)(1), which is the provision being used here.

To be sure, most prosecutors will likely use the law sparingly, and might perhaps try to limit it, for instance, just to nonpolitical personal insults of private citizens (and perhaps especially of teenagers). But that is precisely the same argument the Supreme Court expressly rejected in U.S. v. Stevens (2010) (the animal cruelty video case):

Not to worry, the Government says: The Executive Branch construes § 48 to reach only "extreme" cruelty, and it "neither has brought nor will bring a prosecution for anything less." The Government hits this theme hard, invoking its prosecutorial discretion several times. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.

Last year, I lost a Sixth Circuit case (Plunderbund Media, LLC v. DeWine) in which my clients and I challenged a related provision of the same statute, § 2917.21(B)(2); that provision expressly applied to "post[ing] a text or audio statement or an image on [the web] … for the purpose of abusing, threatening, or harassing another person," which is how the prosecutor in Nassersharifi is interpreting (A)(1) as well. We lost that case on the grounds that the court didn't think that our clients (political organizations) faced a sufficient threat of prosecution for their usual speech; the court therefore concluded that we lacked standing to bring our challenge.

But Nassersharifi, if he chooses to fight this, would have standing to challenge the law on its face, and to argue that—even if his own speech might be restrictable on some theory—the law is substantially overbroad, because it covers a substantial amount of constitutionally protected speech. That challenge should, I think, prevail.

(It's possible that Nassersharifi could be disciplined by the school, or even expelled, for his speech; that's a separate and complicated matter that I'll leave aside for this post.)

See also this post by Hans Bader (Liberty Unyielding) analyzing the First Amendment issue here further.