The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Crime to Publicize Man's DUI (with Insults) as Part of "Feud," "Intended to Shame and Provoke"

So holds the Pennsylvania intermediate appellate court, rejecting a First Amendment defense.


From Friday's decision in Commonwealth v. Collins (Pa. Super. Ct.), written by Judge James Gardner Colins, joined by Presiding Judge Jack Panella:

John William Collins appeals from the judgment of sentence of 15 days' incarceration and a fine of $600 after his non-jury conviction on two counts of harassment….

This case involves a "wanted poster" and five letters that Collins authored and distributed through the United States Postal Service. The poster identifies the "wanted" man as Alan Hoffman, "an individual with whom [Collins] has apparently had a long-running dispute."

The trial court described the poster, letters, and facts of this case as follows:

The posters were copies of the same document … on letter-size paper, featuring a copy of Mr. Hoffman's mug shot and basic booking information for a January 26, 2018, arrest for controlled substance DUI, next to which had been written: "I crossed a Billy goat with a pig. What did you get? See for yourself; it's got a goat face and smells like a pig. $500.00 reward to capture and put in a cage. Call nearest police agency for reward. Trying to impersonate a human being."

The letters were copies of the same package of documents, consisting of: (1) a handwritten note stating the following: "Alan Goat-Face Hoffman, [street address] Three Springs, PA 17264 drives a yellow [car, which] is same color as he is."; and (2) five copies of a page from Mr. Hoffman's Bedford County Court of Common Pleas Court Summary….

Collins asserts that criminal punishment based upon a defendant's speech is permissible only when it falls within certain narrow exceptions to the First Amendment and here none of those exceptions are applicable….

Collins is correct that his speech does not fall within the identified exceptions to the First Amendment set forth in Chaplinsky: his posters and letters did not contain obscenities; no proof was offered that Collins' description of Hoffman was untrue, and in any event, Section 2709(a)(3) does not target defamation; and his speech did not technically constitute "fighting words" as Hoffman was not present when Collins distributed the posters or letters were distributed and therefore it was unlikely that they would have led to "an immediate breach of the peace." However, the Chaplinsky exceptions do not purport to be an exhaustive list of the categories of speech that may be prosecuted under the First Amendment. Indeed, additional categories of offenses that criminalize speech—including solicitation, extortion, and other speech "integral to criminal conduct"—have been deemed to pass constitutional muster. In addition, our Supreme Court has upheld a criminal statute prohibiting harassment by unwanted, repeated communications in the face of a First Amendment challenge, noting that the state has a legitimate interest in preventing harassment and that the offense was directed at the harassing conduct rather than the speech itself.

Viewed in its totality, we conclude that Collins' public dissemination of the poster and letters falls outside the bounds of constitutionally protected speech. The communications were clearly intended to be insulting, attacking Hoffman's appearance ("it's got a goat face and smells like a pig"), parentage (stating that Hoffman was "a Billy goat [crossed] with a pig"), and character (stating that Hoffman was "yellow," i.e., cowardly). Hoffman is not, by any account, a public figure in the town in which he and Collins live, and the communications related to matters that are not of public concern. Although Collins testified that he was publicizing Hoffman's criminal record in order to advise the public that Hoffman was driving with a suspended license, his purpose was not evident on the face of the poster or letter and Collins admitted that his real motivation was to "get back at [Hoffman] for spreading lies about [him] and flaunting the law." There is no question that Collins' publication of Hoffman's criminal record and the insults directed towards him were part and parcel of the two men's long-running feud.

Also crucial in our determination that Collins was engaged in unprotected speech is the fact that he identified Hoffman's home address and the make, year, color, and license plate number of Hoffman's vehicle. The inclusion of this information in the posters and letters served no other apparent purpose than as an invitation for the public to confront Hoffman at his residence or during his travels in the community. See Frisby v. Schultz (1988) (upholding ban on residential picketing where picketing did not "seek to disseminate a message to the general public, but to intrude upon the targeted resident, and to do so in an especially offensive way"). The belligerent nature of the communication was only accentuated by the juxtaposition of Hoffman's mug shot photograph with Old West-style "wanted poster" language, with an offer of a "$500.00 reward to capture" Hoffman and "put [him] in a cage."

Moreover, Collins did not simply resort to announcing his criticisms of Hoffman to passersby in a public forum, but he also directed his injurious message to various unwilling and unsuspecting recipients through the United States Postal Service, at least one of whom submitted a complaint to law enforcement. See Rowan v. United States Post Office Department (1970) (upholding federal statute that permits household to remove address from mailing lists and stating that "no one has a right to press even 'good' ideas on an unwilling recipient" through the mail).

In sum, we conclude that Collins' actions here fall outside the ambit of the protection of the First Amendment. The evidence at trial was clear that Collins' poster and letters were not intended to advise the public of Hoffman's potentially dangerous driving as a result of his DUI convictions nor did they contain an educational or symbolic message regarding the harm caused to society by drunk drivers. Instead, Collins' speech was simply intended to shame and provoke Hoffman and direct the ire of the public on him based upon his status as an offender. That Collins' speech was not communicated directly to Hoffman and did not result in a breach of the peace is not dispositive of our analysis, as it was only the intervention of post office personnel that prevented the flyer from being distributed widely throughout the small town in which the two men lived, and such early action likely avoided further conflict between the two men.

Judge Deborah Kunselman dissented, I think correctly (for my views on this, see this article and the discussion in Part III of this follow-up):

My learned colleagues in the Majority do not identify any recognized exception to the First Amendment that would apply to Mr. Collins' speech. This deficiency should end our analysis, and Mr. Collins' conviction should be overturned. Nevertheless, the Majority denies his speech constitutional protection by crafting a new exception to the First Amendment, the "shame and provoke" exception….

Here, the speech at issue was far less shameful and provocative than in Snyder, and the penalty was more stringent, as it involved criminal rather than civil consequences. While speech here is not of public concern or regarding public figures and thus may arguably be of lesser importance under the First Amendment, that does not mean that the speech forfeits all protections. For the state to criminalize private speech, the speech must fall neatly in one of the exceptions recognized by the Supreme Court of the United States….

In this case, both parties agree that Mr. Collins did not distribute the poster or letters to the person they ridiculed (Mr. Hoffman) or anyone else who would have likely reacted in a violent manner to the content (such as Mr. Hoffman's family or close friends). As such, the posters and letters do not constitute "abusive remarks directed to the person of the hearer" [and thus fit within the fighting words exception -EV]. Instead, they were directed to disinterested third parties, and the record does not indicate that any of those people were likely to breach the Commonwealth's peace upon reading Mr. Collins' poster or letters….

Additionally, the words did not amount to a "true threat" against Mr. Hoffman that would justify criminal prosecution. As the Supreme Court of Pennsylvania observed, the Constitution of the United States allows states to criminalize threatening speech that is specifically intended to terrorize or intimidate. In evaluating whether the speaker acted with an intent to terrorize or intimidate, evidentiary weight should be given to contextual circumstances such as those referenced in Watts v. United States (1969) (explaining that the government may criminalize "true threat[s]" but not mere political hyperbole)…. [T]he language of Mr. Collins' poster and letters did not truly threaten Mr. Hoffman. Instead, they were mere hyperbole. Mr. Collins did not express a desire to harm Mr. Hoffman, nor did he communicate the message on the documents directly to Mr. Hoffman. Therefore, Mr. Collins' speech was not a "true threat" that the government could prosecute….

We must remember that the First Amendment does not exist to protect kind and desirable speech. The Framers adopted it to shield words (such as Mr. Collins') that most citizens do not want to hear, with limited exceptions for speech that is obscene, that falsely damages one's reputation, or that will likely cause an imminent breach of the peace. Here, none of these exceptions applies…