The Volokh Conspiracy
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Ohio Rev. Code § 2917.21 provides:
(B)(2) 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. …
(F) 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 if you say anything online about anyone—from the president on down—you could be criminally punished, so long as a prosecutor and jury conclude that your motive was "abusing" or "harassing" someone. And those motives are potentially quite broad. Ohio courts have understood "abuse" to be a synonym for "mistreat," and "harass" to mean "to annoy or torment repeatedly and persistently." A wide range of harsh online criticism could be labeled as "verbal abuse" (and thus said "for the purpose of abusing") or "harassment" in the sense of persistent annoyance.
I'm pleased to say that Ohio lawyer Raymond Vasvari (former legal director of the ACLU of Ohio) and I—aided by my Scott & Cyan Banister First Amendment Clinic students Ashford Kneitel, Ryan Nielsen and Elizabeth Sweeney—have just filed a challenge to the law, on behalf of Plunderbund Media, the Portage County TEA Party and John Michael Spinelli; here is an excerpt from our motion for a preliminary injunction:
As of August 15, 2016, it is a crime for Ohioans (except the media) to say anything online if a jury finds that their purpose is to "abus[e]" or "harass" another person. Yet the First Amendment protects even speech intended to insult or motivated by hostility—both because that speech is itself constitutionally valuable, and because restricting such speech unduly chills even well-motivated speech.
Section 2917.21(B)(2) … therefore violates the First Amendment. Plaintiffs ask this Court to find the prohibition on speech posted online "for the purpose of abusing … or harassing" to be facially overbroad, and to issue a preliminary injunction—and ultimately, after a hearing, a declaratory judgment and permanent injunction—barring its enforcement. Plaintiffs do not object to the prohibition on "threatening" speech, if that is limited to true threats of illegal conduct, and if that prohibition can be severed from the unconstitutional prohibitions on speech said "for the purpose of abusing … or harassing." …
Under [the statute], public criticisms of government officials or other important figures could be criminally punished if they are seen as intended to mistreat or to persistently annoy their subjects. Moreover, § 2917.21(B)(2) is not limited to threats, defamation, or any other category of unprotected speech. It deliberately extends, for instance, beyond Ohio Rev. Code § 2903.211, which bans menacing by stalking.
Nor is § 2917.21(B)(2) limited to harassing speech directed to an unwilling listener. Traditionally, criminal harassment laws covered speech directed to a particular and unwilling recipient—for instance, telephone calls, letters sent to a particular home, or e-mails sent to a particular person. For that reason, the Supreme Court upheld a federal law forbidding people from sending certain material to others once the recipients have told senders to stop, reasoning that "[N]o one has a right to press even 'good' ideas on an unwilling recipient." Similarly, Ohio has barred unwanted e-mails or telephone calls after the recipient has told the speaker to stop.
Unlike laws which merely protect unwilling listeners, Section 2917.21(B)(2) criminalizes public commentary about particular people, and thus prohibits far more than the dissemination of speech to people unwilling to hear it. While "attempting to stop the flow of information into [one's] own household" (speech to a person) is constitutional, trying to block criticism of a person said "to the public" (speech about a person)—as section 2917.21(B)(2) does—violates the First Amendment. Organization for a Better Austin v. Keefe, 402 U.S. 415, 420 (1971); see also Frisby v. Schultz, 487 U.S. 474, 486 (1988) (upholding a ban on targeted residential picketing, because such picketing "is narrowly directed at the household, not the public," and is thus "fundamentally different from more generally directed means of communication that may not be completely banned").
Section 2917.21(B)(2) is thus "a criminal prohibition of alarming breadth." It potentially punishes a vast range of harsh rhetoric about political candidates. In the recent and hotly contested election, both Hillary Clinton and Donald Trump could have been punished under the statute, for Tweets made in Ohio that were intended to mistreat or persistently annoy the other. Ordinary citizens, who lack political allies and media defenders, are at even more risk of punishment. And while political expression has heightened value under the First Amendment, the prohibitions of the statute could just as easily be used to punish online speech of a private, but wholly protected nature as well.
Imagine a woman breaks up with an unfaithful boyfriend, and posts on her Facebook page (even once) her real feelings about him. A prosecutor may easily conclude that the woman posted her Facebook message with the "purpose of … abusing … or harassing" her ex-boyfriend, by making him feel shamed, ostracized, or "mistreat[ed]." Yet such speech about the details of daily life is also constitutionally protected. Even "[w]holly neutral futilities" that lack political, artistic, or similar value are "still sheltered from government regulation." United States v. Stevens, 130 S. Ct. at 1591.
Indeed, the § 2917.21(F) exemption for members of the media—an exemption that specifically mentions § 2917.21(B)(2)—represents an express acknowledgment that harsh and even "abusi[ve]" online commentary is inevitable in public debate. Ordinary Ohioans, such as the plaintiffs (who are politically active online but who are not "employed or contracted by a newspaper, magazine, press association, news agency, news wire service, cable channel or cable operator, or radio or television station"), should have the same right as media members to engage in such speech.
Section 2917.21(B)(2) is not saved by the requirement of bad purpose
Section 2917.21(B)(2) is not rendered constitutional by the requirement that the speech have the purpose of abusing or harassing. The Supreme Court has repeatedly held that bad intentions do not strip speech of constitutional protection. Thus, in Garrison v. Louisiana, 379 U.S. 64, 78 (1964), the Court rejected the view that reputation-injuring speech could be punished because of the speaker's allegedly bad motives, such as a "wanton desire to injure." As the Court explained, "[i]f upon a lawful occasion for making a publication, [a speaker] has published the truth, and no more, there is no sound principle which can make him liable, even if he was actuated by express malice."
Likewise, in Hustler Magazine v. Falwell, 485 U.S. 46 (1988), the Supreme Court overturned an intentional infliction of emotional distress verdict, concluding that a bad motive does not strip speech of constitutional protection. And in Snyder v. Phelps, 562 U.S. 443, 458 (2011), the Court applied this principle to speech about private figures as well as public figures. More broadly, the Supreme Court has held that a "speaker's motivation" is generally "entirely irrelevant to the question of constitutional protection." FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 468 (2007) (lead opinion) (citation omitted) and at 495 (Scalia, J., concurring in part and concurring in the judgment) (likewise rejecting a test based on speaker motivation).
The Court has offered two reasons for this protection of speech without regard to purpose. First, speech remains valuable even if its motives may be unsavory. "[E]ven if [a speaker] did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth." Second, restricting speech based on its bad motive risks chilling even well-motivated speech. "Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred …."
"No reasonable speaker would choose to run an ad covered by [the statute] if its only defense to a criminal prosecution would be that its motives were pure. An intent-based standard blankets with uncertainty whatever may be said, and offers no security for free discussion." Wis. Right to Life, 551 U.S. at 468 (Roberts, C.J., joined by Alito, J.) (internal quotation marks omitted). "First Amendment freedoms need breathing space to survive," and "[a]n intent test provides none." Any effort to distinguish restricted speech from unrestricted speech "based on intent of the speaker … would 'offe[r] no security for free discussion,' and would 'compe[l] the speaker to hedge and trim.'" Id. at 495 (Scalia, J., concurring in part and concurring in the judgment, joined by Kennedy and Thomas, JJ.) (internal citations and some internal quotation marks omitted; brackets in original).
The same applies to § 2917.21(B)(2). Plaintiffs, and others like them, will constantly have to worry that their harsh criticism of a longtime political foe might be seen as ill-motivated by a prosecutor, and might put them at risk of jail. Section 2917.21(B)(2) "offe[rs] no security for free discussion," and "provides no" "breathing space" for speech; it is therefore unconstitutional.