Hate Speech

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

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

|The Volokh Conspiracy |

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.

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  1. If you can’t abuse people, what the point of using the internet?

    Other than confirming your biases of course.

    1. Sending out pictures of your cats, of course 🙂

  2. “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.”

    That presents its own issue – check out the law and it says

    “Divisions (A)(5) to (11) and (B)(2) of this section do not apply to a person who, while employed or contracted by a newspaper, magazine, press association, news agency, news wire service, cable channel or cable operator, or radio or television station, is gathering, processing. transmitting, compiling, editing, or disseminating information for the general public within the scope of the person’s employment in that capacity or the person’s contractual authority in that capacity.”

    So what laws are they exempt from which Joe Public has to obey?

    (cont.)

  3. Here’s what news people get to do which you civilians can’t:

    “(5) Knowingly makes the telecommunication to the recipient of the telecommunication, to another person at the premises to which the telecommunication is made, or to those premises, and the recipient or another person at those premises previously has told the caller not to make a telecommunication to those premises or to any persons at those premises;

    “(6) Knowingly makes any comment, request, suggestion, or proposal to the recipient of the telecommunication that is threatening, intimidating, menacing, coercive, or obscene with the intent to abuse, threaten, or harass the recipient;

    “(7) Without a lawful business purpose, knowingly interrupts the telecommunication service of any person;

    “(8) Without a lawful business purpose, knowingly transmits to any person, regardless of whether the telecommunication is heard in its entirety, any file, document, or other communication that prevents that person from using the person’s telephone service or electronic communication device;

    “(9) Knowingly makes any false statement concerning the death, injury, illness, disfigurement, reputation, indecent conduct, or criminal conduct of the recipient of the telecommunication or family or household member of the recipient with purpose to abuse, threaten, intimidate, or harass the recipient;

    “(10) Knowingly incites another person through a telecommunication or other means to harass or participate in the harassment of a person;

    “(11) Knowingly alarms the recipient by making a telecommunication without a lawful purpose at an hour or hours known to be inconvenient to the recipient and in an offensive or repetitive manner.”

    And another law the media is exempt from:

    “No person shall knowingly post a text or audio statement or an image on an internet web site or web page for the purpose of abusing, threatening, or harassing another person.”

    http://codes.ohio.gov/orc/2917.21v1

    1. This introduces an equal orotection issue which might mot even satisfy rational basis.

  4. This is no different than someone posting flyers with derogatory statements about others in public except compared to RL ‘public space’ the nature of twitter accounts make it far less likely that random strangers will see it but far easier for interested people to find it. Theres no need for any special law that didn’t already exist before the internet age. Personally I don’t think there should be anything beyond perhaps civil liability for extreme cases.

  5. “…I came daddy brings her to a 61.”

    What does this sentence mean in English? (I get, of course, that this ass-hat gives her a final score of 61. But the first three words???)

    1. I don’t know either, and I’m really not sure I want to know.

      1. “I don’t know either, and I’m really not sure I want to know.”

        How do I un-know?

    2. Yes, I was wondering about that, too.

    3. That he likely had sex with her (I came) and he (daddy) gives her a final score of 61 (presumably out of 100).

      1. Yes, I believe he’s reporting that at the moment of climax she exclaimed, “I came, daddy.” It’s crude and ungentlemanly, but it’s the kind of revealing detail that a Tom Wolfe could never have passed up.

  6. Is “premises” defined elsewhere in the code, statute or case law? Has it been argued that, in the context of this telecommunications act, “premises” is one’s home or at least the specific address to which the communication was addressed, not some general Twitter publication?

    1. Premises is a specific address, in the utility industry which I worked for quite a while, premises was the husband term used for service address.

      Distressingly the last Utility CIS (Oracle’s) I worked on switched the term to “premise” because of the confusion amongst way too many about whether premises was plural for premise.

      1. Isn’t calling it a premise axiomatic?

        (Couldn’t resist)

  7. “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). ”

    Libertarians will be able to bring to mind quickly cases in which prosecutorial discretion was too slender a reed to protect our rights.

    1. Prosecutor discretion is limited to cases where the perp has as many lawyers as they do, and or Michelle Obama’s chief of staff makes a phone call.

  8. This should not be a criminal matter. Bigoted, immature, anti-social jerks have rights, too.

    The antidote to ugly speech is more speech. Such as using the Intertubes to place this speaker on a nationwide ‘do not associate with this jerk, ever — don’t hire him, befriend him, admit him, or help him’ list.

    And encouraging neighbors and employers not to associate with his parents — including, if they operate a business, refraining from transacting with that business — unless those parents handle this situation in a decent manner.

    Bigots have rights, but not the right to avoid consequences. Decent people should impose severe consequences on bigots, mostly by illuminating the bigotry and shunning the bigots.

    1. God created him and his parents that way, and you want businesses to discriminate against them?

      /sarc

      1. If businesses discriminate against them, who is next?

        Heretics?

        /sarc

    2. “Decent people should impose severe consequences on bigots, mostly by illuminating the bigotry and shunning the bigots.”

      Arthur’s right. One of the main problems with culture today is that there’s not enough shunning. After all, if decent, tolerant, open-minded people shun those who are not decent, tolerant, and open-mind, then everybody will be decent, tolerant, and open-minded out of fear of being shunned! Genius!

  9. Why doesn’t the “fighting words” exception apply to some of these statements, especially to the statements concerning the Jewish girl?

    1. The “fighting words” exception only applies to face to face speech. Even if overcome by momentary rage, it’s hard to punch an abusive tweet.

  10. […] Crime to Tweet About People Intending to “Abuse” Them? That’s the legal theory behind a case just filed by prosecutors in Ohio. […]

  11. “Not to worry, the Government says”

  12. I wanted to raise two issues:

    1. If the parties involved are minors, the standard for speech considered obscene for minors can be considerably more lenient than that for adults. A properly worded statute prohibiting obscene tweets geared at minors (obscene for minors) might be constitutional regarding highly sexualized tweets about what the tweeter intends to do with teen-age girls. Limiting to threatening or annoying speech would then simply limit further within an already criminalizable category.

    2. Similarly, the Bong Hits 4 Jesus case strongly suggests that this conduct could result in school discipline.

    That said, the statute in question is neither an obscenity-for-minors statute nor a school discipline statute. It in no way invokes, and it is in no way limited to, the special dispensations available to the state when minors are involved. For this reason, it is likely over broad.

    If the state wants to punish conduct like this, it needs to pass a narrower statute limited to minors and invoking standards applicable to minors.

    1. “If the state wants to punish conduct like this, it needs to” realize we have free speech and not do it.

      Even the repulsive Shoah comment should be fully protected.

      1. Under current Supreme Court doctrine, while the obscenity standards apply to adults, the state has a compelling interest in protecting minors from conduct that is merely indecent. And indecent speech is defined broadly enough, at least in the context of minors, that it may well cover speech like the tweets involved here.

        You may wish that their wasn’t the current state of Supreme Court precedent. But it is. And given this fact, the state of Ohio might well be able to craft a narrower statute, targeted specifically at indecent/obscene-for-minors conduct aimed at minors.

        Often obscene-for-minors conduct can’t be prosecuted because you can’t keep such speech from adults in order to protect minors. But an abusive tweet targets identifiable minors, not the general public, so the usual objections to applying obscene-for-minors standards wouldn’t apply. This means that a properly crafted, narrowly focused statute specifically focusing on speech aimed at minors and specifically invoking obscene-for-minors standards might well work.

        1. But see Reno v. ACLU and Ashcroft v. ACLU.

          1. My point is based on those cases. They establish that obscenity-for-minors standards can’t be applied to speech aimed at the general public, because you can’t force adults to abide by standards intended for minors.

            But the unique feature of abusive speech is that it isn’t aimed at the general public. It is aimed at specific, identifiable individuals. And that’s exactly why, when those individuals are minors, you CAN apply obscenity-for-minors standards, and constitutionally.

            Sure, people thought after those cases that the whole obscenity-for-minors concept was dead. But here’s a situation that meets the criteria, where it has potential for life. They are narrow. But this has a chance of getting through the door.

    2. 2. Similarly, the Bong Hits 4 Jesus case strongly suggests that this conduct could result in school discipline.

      Bong Hits 4 Jesus treated the speech as school-related speech. It deemed the speaker to be at a school function. (Lower courts have split on whether Tinker permits discipline for off-campus speech if its effects may be felt in school.)

  13. So if some politician makes an abusive Tweet about someone who lives in Ohio, he’d be liable to arrest when he comes to Ohio to campaign?

  14. […] on charges of telecommunications harassment, may overstep the First Amendment [NBC24, Hans Bader, Eugene Volokh (reworded to reflect fuller accounts which make clear that the student’s offensive speech […]

  15. Mark Zuckerberg needs to stay away. Facebook started as a coed rating site.

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