The Volokh Conspiracy
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Facebook Posts Lewdly Insulting Elected Official Are Criminally Punishable (at Least If They Relate to a Private Dispute)
Such speech, whether about elected officials or others, is punishable, the court held, if it "[does] not express social or political beliefs or constitute legitimate conduct" and "could only serve to harass, annoy or alarm the complainant."
In Commonwealth v. D'Adderio, a Pennsylvania nonprecedential appellate decision handed down last week, Kelly Marie D'Adderio posted several items on her Facebook page about Maria Memmi, D'Adderio's ex-husband's current wife and an elected member of the Derry Township School Board:
"Dear Miss Maria Memmi, you were a life-long friend of mine, my son's Godmother even. The day you crossed the friendship line and married my ex was the day you exposed your true colors. Ironically, that was the least of my concerns. Sadly, I find some pleasure that he cheated on you. I kind of feel you had it coming anyway. You seem obsessed with playing mommy to my kids. Let's see how that works out for you. #slouchback #truefriend #hunchcunt #pretendmom #hecheated."
"Dear Derry Township School Board Member, the board president was notified about you turning a blind eye about drug use in my home by some of your students. After being notified, he called it a family matter. That's fine. I would like to see what the PSBA thinks. If they think it's a family matter, then I will let it rest."
Matters deteriorated further:
Ms. Memmi, who did not have a Facebook account at the time, became aware of the posts later that day when her stepchildren showed them to her. Ms. Memmi thereafter reported the posts to Detective Robert Matthew Dotts of the Derry Township Police, who in turn contacted Appellant and suggested that she take them down. Appellant did not follow this suggestion. She continued to post increasingly offensive comments throughout the weekend, referring to Ms. Memmi as "hunch cunt" and "whore," questioning the paternity of Ms. Memmi's minor daughter, and suggesting that Ms. Memmi was carrying on an inappropriate relationship with the detective….
[Appellant's additional comments, posted on Facebook in the following days, included:] "Dear Little Memmi Girl, [referring to Ms. Memmi's 9-year-old daughter,] who is your daddy? The entire town is requesting a paternity test. Many others have told me Phil [D'Adderio] is your daddy. What is the truth? Call the popo hunchback."
"Dear hunch cunt, that's what Phil called you. LOL. You're fat, gross, and ugly. You can arrest me. I really don't care as long as I get the truth out."
"Haha, hunch cunt called the police. I thought you weren't on FB. You whore."
"Dear hunch cunt, talked to the detective. Are you sucking his cock? After all, he is a cutie patootie."
"When you ride Phil's ginormous cock, do you ever think of the last pussy it was in? I would."
D'Adderio was then prosecuted for violating the state criminal harassment statute:
(a) Offense defined.—A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person: …
(4) communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures[.]
The "complaint alleged that Appellant directed multiple Facebook posts to Ms. Memmi 'that were vulgar and inflammatory,' and Appellant 'called [Ms. Memmi] derogatory names, questioned the paternity of her child, and challenged her to pursue legal prosecution.'" D'Adderio was convicted and sentenced to "twelve months of probation, one hundred hours of community service, plus fines and costs." And the appellate court affirmed, rejecting D'Adderio's defense:
Appellant insists that criminal liability cannot attach to lewd and lascivious speech "about" another person, because such speech is constitutionally protected…. "Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument." …
Appellant's Facebook posts did not express social or political beliefs or constitute legitimate conduct. Rather, Appellant made lewd comments, including sexualized language and references to the complainant's sexual activity, which could only serve to harass, annoy or alarm the complainant…. Appellant's comments are not entitled to First Amendment protection, regardless of whether the posts were "to" or "about" the complainant….
Section 2709(a)(4) requires an intent to harass, and it seeks to preclude communications lacking some legitimate purpose. As such, the statute does not punish constitutionally protected speech, and the statute is not facially overbroad….
One of the judges dissented, but without an opinion.
Here's my thinking:
1. I agree that there's nothing of value or substance in D'Adderio's barrage of insults; but the statute, as interpreted by the court, would equally jeopardize a wide range of "lewd" public criticisms of political officials—so long as a prosecutor and a jury conclude that the criticisms "[do] not express social or political beliefs," aren't "legitimate conduct," and are intended "to harass, annoy or alarm."
The insults in Hustler Magazine v. Falwell, for instance, might well qualify—Falwell was portrayed as having had sex with his mother in an outhouse, which may well be seen as "sexualized language" and are certainly "references to the complainant's sexual activity"—and they don't really discuss any "social or political beliefs" (at most, they do so by implicitly mocking a political figure, but Memmi was an elected official, too). D'Adderio's insults are more explicit than Hustler's, but the court doesn't explain how much is too much. All we know is that some "lewd" insults of politicians (among others) in Pennsylvania are criminally punishable.
The decision thus strikes me as incorrect, despite the repulsiveness of the speech involved; nor is there any First Amendment exception that would support the court's reasoning (see my Northwestern article for more on this).
2. The nation, to be sure, won't stand or fall based on whether one can lewdly insult people, even politicians. Perhaps Hustler was wrongly decided, or perhaps it was rightly decided but only because the law there (the intentional infliction of emotional distress) wasn't limited to sexual insults. Perhaps even Cohen v. California, which recognized a general right to display vulgarities in public places, was incorrect, and FCC v. Pacifica Foundation, which upheld a ban on vulgarities on broadcast radio and television, should be applied more broadly. I think Hustler and Cohen were right and Pacifica was wrong, but reasonable minds may differ; or maybe vulgarities about particular people should be treated differently from vulgarities about public policy or other matters (such as the "Fuck the Draft" jacket in Cohen or Carlin's routine in Pacifica).
But at least we should recognize that "criminal harassment" statutes such as the one here, whether broad or narrow, can apply—if they are upheld against First Amendment challenge—to speech about public officials as much as to speech about private individuals. And we should recognize that they jeopardize all public sexual insults (or, in those statutes that lack a limitation to "lewd speech," all insults), and not just ones that are as extreme as those in D'Adderio.
