Free Speech

"Woman Who Criticized … Nursing Home Official on Facebook Faces Jail Time …"

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An article on the State v. Criscione case in Cleveland.com (Cory Shaffer):

A 64-year-old woman's Facebook posts blaming a Brook Park nursing home and its administrator for her mother's death could land her in prison for up to a year in a case that has ignited a battle over the First Amendment.

Lawyers representing Gina Criscione say the first-degree misdemeanor telecommunications harassment and menacing by stalking charges she faces in response to her criticisms of East Park Care Center and administrator Sara Thurmer violate Criscione's freedom of speech.

A Berea Municipal Court magistrate on Friday held a brief hearing to determine whether there is enough evidence for the case to go to trial. The magistrate, Chris Greene, is expected to issue a ruling next week and, if the case goes forward, schedule another hearing to discuss the First Amendment issues.

Criscione's attorneys from the Chandra Law Firm and six law school deans and professors who teach First Amendment law in Cleveland and one in Los Angeles filed briefs asking the court to drop the charges and find that the First Amendment protects the Criscione's posts.

Prosecuting Criscione, the experts warn, would send a message that anyone who dares criticize a business or medical institution online could face the wrath of a vindictive business owner if they can convince a local prosecutor that the negative comments caused them harm.

I blogged about our brief in the case here; an excerpt:

Summary of Argument

[1.] The telecommunications harassment statute and menacing by stalking statute are unconstitutionally overbroad:

  • The telecommunications harassment statute bars knowingly posting anything "on an internet … web page for the purpose of abusing, threatening, or harassing another person," R.C. 2917.21(B)(2)—criminalizing any online statement that is seen as being ill-intentioned.
  • The menacing by stalking statute bars people from making multiple posts online if they know that their pattern of conduct would cause another "mental distress" (or, possibly, would cause another to believe that future conduct will cause mental distress), R.C. 2903.211(A)(1)-(2).

These statutes criminalize a substantial amount of protected speech, including speech on matters of public concern. They could, for instance, expose a person to criminal liability for repeatedly ridiculing a local community leader based on a political position the leader has taken—though such a prosecution would violate the First Amendment, see Rynearson v. Ferguson, 355 F.Supp.3d 964, 972 (W.D. Wash. 2019). Moreover, even speech on matters of private concern is protected by the First Amendment. See Bey v. Rasawehr, __ N.E.3d __, 2020-Ohio-3301, ¶ 59.

Unlike traditional telephone harassment statutes, these statutes are not limited to unwanted speech said to an unwilling listener—speech that can in some situations be properly restricted, regardless of its subject matter. Rather, they extend even to critical public expression of opinions or true statements of fact about a person, which is generally constitutionally protected.

[2.] The statutes are not saved by their mens rea requirements. Even if speakers are "motivated by hatred or ill-will," their speech on matters of public concern is still protected by the First Amendment. Bey, 2020-Ohio-3301, ¶ 59. And Bey makes clear that the same is true of speech on matters of private concern. Id. There is no First Amendment exception for discomforting or upsetting speech made to the public, even if the speech is made with bad intent or with knowledge that some will find it disturbing.

[3.] The telecommunications harassment and menacing by stalking statutes are thus facially unconstitutional—but they are also unconstitutional as applied as well. Ms. Criscione spoke publicly on her personal social media page and while picketing on a public sidewalk. She criticized a healthcare organization and its employees for what she perceived as poor job performance. Statements regarding the "quality of … medical care" involve "a public issue of community concern." Mucci v. Dayton Newspapers, Inc., 71 Ohio Misc. 2d 71, 75, 654 N.E.2d 1068 (Ct. Com. Pl. 1995). Yet Ms. Criscione is being prosecuted for her statements anyway.

[4.]  Since these statutes criminalize speech based on its content, they are unconstitutional unless they pass strict scrutiny. This they cannot do. Even if there is a compelling governmental interest in protecting people from abuse, harassment, and mental distress, barring a broad range of public criticism cannot be narrowly tailored to serve that interest. See Snyder v. Phelps, 562 U.S. 443, 458-59, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (holding that even outrageous speech that causes emotional distress is still constitutionally protected).

East Park and its employees might prevail in a defamation lawsuit against Ms. Criscione, if they can prove that her allegations are false. But Ohio cannot constitutionally prosecute Ms. Criscione for such criticism under the state's tele­communica­tions harassment and menacing by stalking statutes, which require no showing of libelous falsehood. These charges should therefore be dismissed.

NEXT: Anti-Riot Act Partly Upheld, Partly Struck Down

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  1. “There is no First Amendment exception for discomforting or upsetting speech made to the public, even if the speech is made with bad intent or with knowledge that some will find it disturbing.”

    So then, “hate-speech” laws are ______________________ .
    a) woke
    b) unconstitutional
    c) proliferating
    d) all of the above

    1. What’s a “hate speech” law?

      Are you referring to hate crimes that use hateful speech or rhetoric as proof of your reason for committing a crime (like assault) ?

      Because there are very few cases where your hateful speech is in and of itself prosecutable.

      1. Details, details.

      2. Not for want of trying. Hate speech is a common goal of Democrats especially, but some Republicans too.

        1. ‘That strawman scenario only *looks* false, but is real to the evil liberals of my imagination!’

    2. This is a helpful reference guide to people who like to conflate “hate speech” with “hate crimes”

      https://reason.com/video/2019/02/19/the-3-rules-of-hate-speech/

  2. It increasingly appears that speech prosecutions are politically motivated.

    1. While that may be true as a general trend, this particular case is not evidence of it. The prosecution in this case seems more closely linked to petty graft and influence.

  3. The process is the punishment.

    1. You’re damn right about that. And if you fight back the judges and LEOs will figure out ways to batter and maim you. 29 times I was compelled to be in court fighting restraining orders, show-cause orders, and cyberstalking warrants, all of which I knew by reading Prof. Caplan and Prof. Volokh were illegal because my speech was protected by 1A. EFF said they would appear for me, but they reneged. So I fought alone, and the little tyrants finally gave up and the misandering plaintiff left town in disgrace. I was never convicted, and on both of the cyberstalking warrants I alone (but w/the law profs’ great treatises in the background) obtained dismissals with prejudice. You can’t fight those frivolous and malicious restraining orders, though. I saw the handwriting on the wall when, as the first RO was being served on me, the plaintiff was already in the courthouse suborning a crooked judge to sign a show-cause order to have me jailed. I went up to the court of appeals and supreme court of NC, and the judges ignored all of my assignments of error. It’s not what you know here; it’s who you know. Piss upon them. I’d do it all over again to help preserve 1A. (Yes, I know I’m writing invective. Have it done to you and see how calmly YOU write about it.)

  4. How did you get an amicus brief filed in a municipal court?

    1. LawTalkingGuy: There are no rules prohibiting such filings; as I understand it, Ohio trial judges generally have the authority to reject amicus briefs, but they can also accept such briefs, especially if they seem useful.

      1. Thanks for the response!

  5. I once went to visit a loved one in a nursing home. When I got off the elevator at her floor, I was immediately greeted by the sight of a patient, obviously suffering from dementia, who was wandering the halls stark naked, and none of the staff was paying any attention.

    I told everyone I could think of, including the hospital that referred my loved one to that facility, terrible on-line reviews, state regulators, and anyone who might be referring future patients there. My loved one passed away three days later and I’ve had no occasion to go back since, so I don’t know if they cleaned up their act. But the idea that I could be sued, either civilly or criminally, for exposing such woefully bad care is almost as offensive to me as the fact of bad care itself. We have free speech laws for a reason.

  6. Artie caused me mental distress by calling me a clingon. He should go to jail. Anyone disagree?

  7. Funny, all media except C-SPAN is straight hate speech propaganda. All media are not the David Duke website. Duke is an honest hater. Journalists are violating their Code of Ethics requiring presenting all sides of a story.

  8. In my state the judges have decided to erode and often abolish notice and opportunity to be heard, a la the big VAWA and Title IX shifts which have driven so many innocent husbands out onto the street and so many innocent college boys into a Kafkaesque life of guilt and social disgrace.

    Sewer service, i. e., the process server making a return on the summons after dumping the summons and complaint in the sewer, is making a big comeback. Without a defendant in the courtroom the process is streamlined by entry of default judgment for failure to appear.

    And in tort and k cases summary judgment is the best way to elude work, reward cronies, and clear the calendar, issues of material fact be damned.

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