The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.