The Volokh Conspiracy
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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."
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.
