Free Speech

Five Years in Prison for Posting Facebook Videos Accusing Pastor of Sexual Misconduct

The Mississippi Court of Appeals just overturned the conviction, and struck down the underlying statute, which banned posting messages "whether truthful or untruthful" "for the purpose of causing injury to any person."

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William Edwards was sentenced to five years in prison "for posting Facebook Live videos in which he accused a local pastor of sexual misconduct." His conviction was under Miss. Code Ann. § 97-45-17:

A person shall not post a message for the purpose of causing injury to any person through the use of any medium of communication, including the Internet or a computer, computer program, computer system or computer network, or other electronic medium of communication without the victim's consent ….

"Post a message" is defined (emphasis added) as

transferring, sending, posting, publishing, disseminating, or otherwise communicating or attempting to transfer, send, post, publish, disseminate or otherwise communicate information, whether truthful or untruthful, about the victim.

"Injury," the court concluded, logically would include not only pecuniary and physical injuries but also reputational and emotional injuries.

In Tuesday's Edwards v. State, the Mississippi Court of Appeals held the statute was unconstitutionally overbroad, and thus overturned Edwards' conviction; here is the analysis, which I think is quite correct (see generally this article):

As written, section 97-45-17 criminalizes a substantial amount of protected speech, including core political speech. For example, "the Constitution surely protects" political "attack ads." Nonetheless, any person responsible for such political speech would be subject to criminal prosecution under section 97-45-17. After all, the point of an attack ad is to injure the targeted candidate—to damage his or her reputation or popularity and ultimately to prevent his or her election or re-election.

By its terms, the statute also criminalizes protected speech about public figures. Nothing in the statute requires the State to prove that the defendant knowingly or recklessly posted a false message. Indeed, as noted above, the statute criminalizes even perfectly truthful speech. All that must be shown under the statute is that the speaker intended to cause some "injury" to the subject.

Section 97-45-17 would also criminalize the famous Hustler magazine advertisement parodying the Reverend Jerry Falwell. The Supreme Court held that the First Amendment protected the parody although it was "patently offensive and … intended to inflict emotional injury" on Falwell. The Court explained that "[t]he appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events—an exploitation often calculated to injure the feelings of the subject of the portrayal." Indeed, "many things done with motives that are less than admirable are protected by the First Amendment." Speech does not lose its protection under the First Amendment simply because "a speaker or writer is motivated by hatred or ill will." Hustler thus makes clear that section 97-45-17 does not survive First Amendment scrutiny simply because it is limited to messages sent "for the purpose of causing injury to any person." {See also, e.g., Beckley Newspapers Corp. v. Hanks (1967) (holding that the First Amendment prohibited recovery in a civil libel action based on a jury finding that the defendant newspaper published editorials "with [a] bad or corrupt motive" or "from personal spite, ill will or a desire to injure [the] plaintiff).}

The statute would also criminalize the Claiborne County boycott and related "peaceful political activity" that the Supreme Court held were entitled to constitutional protection in N.A.A.C.P. v. Claiborne Hardware Co. (1982). The Court held that the First Amendment protected the boycotters' speech even though the boycotters "directly intended … that the merchants would sustain economic injury as a result of their campaign." Yet, under section 97-45-17, such protected speech is made a felony punishable by up to five years' imprisonment.

We could provide additional examples of section's 97-45-17's overbreadth. But suffice it to say, the statute criminalizes a great variety and a substantial amount of constitutionally protected speech. It cannot be characterized as a regulation of criminal conduct that incidentally burdens speech. Rather, it is a clear and direct regulation of speech as speech…. [T]his statute is "violated scores of times daily," and yet only a few unlucky individuals are ever prosecuted under it. Thus, the statute's overbreadth not only runs the risk of chilling protected speech but also results in arbitrary and erratic enforcement.

While the statute could have some valid applications, there is nothing in its language that would serve to limit its reach to unprotected speech. As shown above, speech does not lose its constitutional protection simply because its purpose or intent is to cause injury. We conclude that the statute's potential valid applications pale in comparison to its overbreadth. That is, the statute's "overbreadth [is] substantial, not only in an absolute sense, but also relative to [its] legitimate sweep." Therefore, the statute is facially invalid and unconstitutional, and Edwards's conviction must be reversed and rendered.

The court noted that some of the statements in this particular case might have been unprotected true threats of violence, but "Edwards was not prosecuted for threatening Richardson or his family, and nothing in the jury instructions addressed the issue of true threats. Rather, the jurors were instructed that they should return a guilty verdict if they found that Edwards posted messages—whether true or untrue—for the purpose of causing some undefined 'injury' to Richardson. For the reasons explained above, a conviction on that basis is inconsistent with the freedom of speech protected by the First Amendment."

Here are the facts of the case:

William Edwards was a self-styled "community activist fighting crime and corruption in [Jackson]." To that end, he formed a "liberal action committee" called "The Cipher." Edwards primarily used The Cipher's Facebook page1 to engage with the public by posting live videos and messages and responding to comments. In his videos, Edwards typically discussed crime, corruption in local government, and other topics of local interest. Edwards testified that he received information for his posts and videos from sources in local government and other concerned citizens. Edwards's rambling videos were wide-ranging and included both his personal opinions and information from his sources. Edwards claimed that he or someone else fact-checked all of his information.

Edwards also worked at the Planet Fitness gym in Ridgeland. On October 31, 2016, Roderick Richardson, a local pastor, approached Edwards at the gym. Richardson was a member of the gym and was there to work out. According to Edwards, Richardson confronted him about his support for a candidate in the Jackson mayoral race. The exchange grew heated, and another employee asked Richardson to leave.

After Richardson left, Edwards took a break and started a new live video on The Cipher's Facebook page. The eleven-minute, thirty-one-second video was admitted into evidence and played in full for the jury at trial. In the video, Edwards stated that Richardson (or "Pastor Rich") had accused him of "slandering [Richardson's] name."

Edwards denied slandering Richardson, but he accused Richardson of having sex with a member of Richardson's church, whom Edwards referred to as a "little girl." Edwards said that the "little girl" slandered Richardson and that he (Edwards) just repeated what he had been told. Edwards then stated that he has a "Smith and a Wesson" and that if Richardson wanted to act like a "gangster," he (Edwards) would show Richardson "what real beef looks like." Edwards also stated that he was "coming to [Richardson's] church on Sunday," and he referenced Richardson's wife and children and Richardson's business address. Edwards warned Richardson to "be very careful" because he "might not see [Edwards] coming." And he stated that Richardson's gym membership was "probably deleted."

Richardson testified that members of his church told him about the video. Richardson interpreted the video as a threat against him and his family. Richardson denied that he had ever engaged in or been accused of an inappropriate relationship with a church member.

On November 2, Edwards posted another Facebook Live video. The entire fifty-minute, fifty-two-second video was admitted into evidence, but the State played only a one-minute, thirteen-second excerpt for the jury. The rest of the video had nothing to do with Richardson.

In the excerpt played in court, Edwards discussed "undercover" homosexuals in Jackson and called Richardson "the queen of them all." Edwards then stated that Richardson had been fired by another church due to "sexual misconduct." Edwards testified that a woman (whom he named at trial) told him that she had an affair with Richardson while she was a member of Richardson's former church. At trial, Richardson denied Edwards's accusations and denied that he had ever been fired for sexual misconduct.

Edwards posted another video to Facebook Live on November 11. The entire video, which runs one hour, fifteen minutes, and forty-seven seconds, was admitted into evidence. However, the State played only a twenty-three-second excerpt at trial. The rest of the video again had nothing to do with Richardson.

In the November 11 excerpt, Edwards claimed that Richardson and a lawyer (whom he named at trial) conspired to have a woman sue Belhaven University for alleged sexual misconduct. Edwards suggested that Richardson hoped to receive some sort of financial kickback from the lawsuit. At trial, Edwards claimed that the plaintiff in the lawsuit was the same woman mentioned in the November 2 video. Edwards claimed that the woman had provided him with the information about the lawsuit and Richardson's role in it. However, Richardson denied any role in the alleged conspiracy.

Richardson testified that members of his church saw the videos and told him about them. He downloaded copies of the three videos and provided them to law enforcement. Richardson testified that the videos injured him personally, financially, and professionally. Richardson testified that he had lost at least fifteen paid speaking engagements and that his church's attendance and revenue decreased after the videos were posted. Richardson also stated that he had received counseling to help him deal with the fallout from Edwards's videos. He testified that Edwards's allegations against him were untrue and that he did not consent to Edwards's posting of the videos.

Edwards testified in his defense. He admitted that he was angry when he made the October 31 video, but he wanted The Cipher's viewers to know that Richardson had threatened him at his place of work. He also wanted Richardson to know that he would not be bullied and would not change his position on the Jackson mayoral race.

Edwards claimed that his November videos relied on information that he had received from two of Richardson's former church members. He denied that the October 31 post was made "in retaliation for what happened at the gym." Edwards also denied that he intended to injure Richardson by posting the videos. Rather, he claimed that he was "simply acting as a political activist" and trying "to provide the community" with "information" about ongoing "corruption" in local government and local churches.

Richardson and Edwards were the only two witnesses at trial.

NEXT: Three Months without Twitter

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  1. “Edwards then stated that he has a “Smith and a Wesson” and that if Richardson wanted to act like a “gangster,” he (Edwards) would show Richardson “what real beef looks like.” Edwards also stated that he was “coming to [Richardson’s] church on Sunday,” and he referenced Richardson’s wife and children and Richardson’s business address. Edwards warned Richardson to “be very careful” because he “might not see [Edwards] coming.”” That sounds like a threat of violence, which isn’t protected is it? Maybe they charged him with the wrong crime, but I’d read the above as “I’m going to shoot up your church” and that’s not protected…

    1. Nope. The threat wasn’t imminent nor was it specific, so totally legal. Also totally boorish, immature, and just plain mean but from a constitutional POV, not illegal.

      1. Imminence is not required under the “true threat” exception.

        The actual answer to Dr. Ed is that true threats aren’t automatically illegal—the government still has to enact a statute that criminalizes them. Here, a prosecution under a narrower statutes that banned making true threats might have passed muster: the problem is that this statute sweeps much, much more broadly.

        1. I thought Brandenburg v. Ohio and Hess v. Indiana both addressed speech that threatens future lawless action (i.e. not imminent), is protected.

          1. Brandenburg isn’t a true threats case. It is an advocacy of violence case. To whatever extent it applies the imminence test as stated by Hess was about “some indefinite future time”, not necessarily that it wasn’t right this minute. While If you give a specific time like Sunday (in the context of the post pretty clearly the sunday coming up not some random future sunday) I think that is enough as it isn’t some indefinite future time. Perhaps the cases would also cover it if it was sufficiently far in the future, but that wouldn’t be the case

        2. Imminence is not required under the “true threat” exception.

          It’s not an element the way it is under Brandenburg, but of course it can speak to how true the threat actually is. (“I am going to come over to your house and kill you in 2053” probably would not be a true threat.)

    2. Dr. Ed: Did you notice the part of the post which read:

      The court noted that some of the statements in this particular case might have been unprotected true threats of violence, but “Edwards was not prosecuted for threatening Richardson or his family, and nothing in the jury instructions addressed the issue of true threats. Rather, the jurors were instructed that they should return a guilty verdict if they found that Edwards posted messages—whether true or untrue—for the purpose of causing some undefined ‘injury’ to Richardson. For the reasons explained above, a conviction on that basis is inconsistent with the freedom of speech protected by the First Amendment.”

      1. One time, when Dr. Ed was yelling at clouds, he saw someone burn down a church with everyone in it. It was a liberal, probably RFK if he remembers correctly. Anyway, the point is that the government charged him with the wrong crime, and that’s why RFK became the attorney general. ………………………………………………………………………………………… And just think, if we didn’t have stupid concepts like “due process” that force the government to charge people with the correct crimes, then RFK wouldn’t have been assassinated because he would have been in jail. That’s how you know liberals kill people.

      2. My bad — I saw “a Smith and a Wesson” and then read both “true threats” and “undefined ‘injury'” quite differently than I should have.

        The actual line, from a 1970’s “Dirty Harry” movie, is “Smith, Wesson, and me” — after which he shoots four robbers with his .44 Magnum. See https://www.youtube.com/watch?v=TQMcpFY4K-g

      3. The quoted section sounds to me more like a warning that if the pastor wants to come after him he was ready to defend himself.

        We do not know what was said in the heated argument that got the pastor booted from the gym. It might have included statements that could have been perceived as true threats.

  2. Was there a civil suit? This sounds like some serious defamation!!!

    1. Looks like they went Criminal not Civil.

    2. Civil lawsuits are of course likely to be very expensive for the plaintiff, and if the defendants have very little money, the plaintiff is unlikely to ever recoup that expense. (The lawsuits might be effective at pressuring the defendant to remove online libels, and even if the defendant doesn’t do that when the lawsuit is filed, plaintiff might be able to get an injunction, after years of litigation and great expense).

      About a dozen states (not including Mississippi) still have criminal libel statutes; my sense is that they are used about 20 to 30 times a year, and I think they are constitutional if narrowly crafted. (A district court in New Hampshire just struck down the state’s quite narrow criminal libel law, though I think it erred, giving current Supreme Court precedent.) But those statutes, whatever one might think of them, are at least limited to knowing or reckless falsehoods — this statute deliberately rejects any such limitation.

    3. You are assuming what he said is false.

      I, as I am guessing pretty much everyone here, don’t have any idea one way or the other so it may well be, but I, and you, have no basis to say it is.

    4. Tho Suing for Defamation may be questionable, making it a Criminal Offense is clearly a First Amendment Violation.

      Tho, to have a Civil case, there must be damages and can be proven it was a direct result of what was said

  3. I had not heard that story about Falwell, his mother, and the outhouse. It explains a few things.

    1. They made a movie about that. The People vs Larry Flint

  4. All Criminal Defamation Laws should be Repealed

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