The Volokh Conspiracy
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Crime in Illinois to Send E-Mails (with Intent to Offend) That Are "Disgusting to the Senses" or "Abhorrent to Morality or Virtue"
From People v. Ocampo, decided by Illinois Appellate Court Justice David Navarro:
[Carlos] Ocampo was charged with harassment through electronic communications based on a series of emails .… One of [Ocampo's] pleadings … contained a statement of charges from the Illinois Department of Revenue (IDOR), which sought termination of Ocampo's employment for alleged actions that took place from March 2021 to February 2022. Those allegations were that Ocampo: (1) sent multiple emails to multiple recipients that "contained numerous and unsupported and unsubstantiated allegations against IDOR employees and included inappropriate pictures of his vomit in a toilet bowl"; (2) sent multiple emails that contained "racially sensitive remarks, inappropriate photos, and disparaging comments in an attempt to harm or destroy the reputation of fellow State employees"; and (3) harassed several members of IDOR after having been asked not to contact them. Ocampo was ultimately terminated….
At trial, Vincent Cacioppo testified that he was an IDOR employee for 36 years. He never had contact with Ocampo, except for "hundreds" of emails from Ocampo, starting in 2020. Cacioppo received emails from Ocampo unrelated to work, with false accusations and "nonsense." The emails made Cacioppo feel "horribly because [Ocampo] sent them to everybody in the State legislature, my colleagues."
On February 13, 2023, Ocampo sent Cacioppo and others an email with the subject line "insufferable racists." The body of the email insinuated that Cacioppo was in the mob. Cacioppo stated that he had no way to reach out to the other people to say he was not a racist or a bully, and that the emails damaged his reputation.
Two days later, Ocampo sent an email to Cacioppo and others with the subject line, "gang of white-skinned primates," and the body of the email indicated that Cacioppo was not only "running a gang of white-skinned primates, but also a ring of corruption and thieves." It also stated that Cacioppo "micromanaged minorities to make them feel incompetent," knew very little about taxes, had emotional outbursts, and was committing "white collar crime."
On March 10, 2023, Cacioppo received an email from Ocampo that stated the IDOR discharged Ocampo because "he allegedly harassed Vincent Cacioppo by submitting complaints of systemic discrimination." The email stated that the Office of the Illinois Attorney General "has one week to file an appearance and defend the decision … to keep a mobster, Vincent Cacioppo …." This email was also sent to Cacioppo's colleagues.
Two more emails were sent on March 19, 2023. Cacioppo stated that he was embarrassed because the emails were also received by the Chief of Staff, Cacioppo's boss.
On March 21, 2023, Ocampo sent Cacioppo an email with the subject line "white collar criminal." The body of the email stated that Cacioppo "might deny that he is part of the KKK, but he can't deny that he is part of a gang that thinks they are better than the street gangs of Chicago, Illinois, because they are white collar criminals."
Cacioppo testified that the emails made him feel embarrassed because they were sent to his colleagues in State government who do not know his reputation.
Ocampo also attached images to many of his emails. One depicted Cacioppo as "some sort of gargoyle." Another depicted Cacioppo with "some gentleman that looks like he is in some kind of Ku Klux Klan outfit." Other emails contained pictures of KKK members, and Cacioppo's and others' faces photoshopped onto birds sitting on top of a burning state capitol building. Cacioppo found these images to be obscene, embarrassing, intimidating, and harassing.
David Mack, a labor relations administrator for the IDOR since 2001, testified that he received emails from Ocampo beginning in 2020. From January 1, 2022, to March 31, 2023, Ocampo sent Mack several hundred emails, sometimes sending him multiple emails a day. He found these emails "harassing in nature, accusatory things that [he had] never done in [his] entire life."
Patrick Ross, Chief of Internal Affairs at IDOR, testified that Ocampo sent him several hundred emails over the course of several years. The emails were "relentless" and made it hard for Ross to work. The emails were "accusatory, harassing, demeaning-type emails and pictures." The emails were sent to State legislators, and people with whom Ross had a professional relationship.
Ross found the pictures attached to the emails to be embarrassing and humiliating. He testified that Ocampo was linking him to a terrorist group, the KKK, in the images attached to the emails, which was highly offensive….
A person commits harassment through electronic communications when he uses electronic communications for the purpose of "[m]aking any comment, request, suggestion or proposal which is obscene with an intent to offend." … Ocampo only takes issue with the second element of the offense, arguing that the State failed to prove that his emails were obscene. The statute at issue does not define the word "obscene." … [I]n People v. Kucharski (Ill. Ct. App. 2013), [this court] held that the definition of "obscene" [as meaning hard-core pornography] does not apply to the offense of harassment through electronic communications. In Kucharski, the court … found that the Illinois obscenity statute's purpose is to control the commercial dissemination of obscenity, while the electronic harassment statute's purpose is to prevent the personal invasion into people's homes and lives by harassing communications via electronic devices. The court found that … "obscene" as used in the electronic harassment statute "should be afforded its ordinary dictionary definition" of "disgusting to the senses" or "abhorrent to morality or virtue." …
[T]he electronic communications Ocampo sent were disgusting to the senses and abhorrent to morality and therefore "obscene" within the meaning of the harassment statute. The recipients of the emails testified that Ocampo's emails accused them of being members of the KKK, of being members of the mob, and of being racists. The emails included graphic pictures of the recipients dressed as KKK members and the State Capitol on fire with the recipients around it. The recipients also testified that Ocampo sent them hundreds of these emails, sometimes several times a day. Certainly, looking at this evidence in a light most favorable to the State, we find that a rational trier of fact could have found the email messages and accompanying pictures to be obscene, and we will not disturb such finding on appeal….
To the extent Ocampo is making a constitutional argument that the harassment through electronic communications statute violates the first amendment …, we have previously rejected that argument and do so again here. "'Speech may not be proscribed because of the ideas it expresses, but may be restricted because of the manner in which it is communicated or the action that it entails.'" Here, criminalizing obscene communication, with an intent to offend, is not content-based discrimination, but rather an attempt to regulate conduct that accompanies the proscribed speech. An obscene electronic communication made with an intent to offend "is restricted by the statute not because its content communicates any particular idea; rather, it is restricted because of the purpose for which it is communicated." …
Justice Clare Quish concurred in the judgment. Justice Ramon Ocasio dissented:
There are a lot of words you might use to characterize the contents of Ocampo's communiqués—obnoxious, obsessive, and offensive come to mind, as do disturbing, distressing, and defamatory—but obscene is not one of them. The offense at issue is the online equivalent of making dirty phone calls which obviously is not what he was doing. If Ocampo is guilty of a crime, it is not the one charged, and it is not our job to rescue the State from its poor charging decisions….
The Illinois interpretation of the statute, as set forth in Kucharski and applied here, strikes me as unconstitutional. Certainly precisely crafted laws that ban continued unwanted speech sent to a person may be permissible, on the theory that "no one has a right to press even 'good' ideas on an unwilling recipient." But a law that asks juries and judges to decide which messages are "disgusting to the senses" or "abhorrent to morality or virtue" is unconstitutionally vague, and unconstitutionally open to viewpoint-based application.
