Not-Harassment (2)

Not long ago, I did a post (“Not-Harassment”) on a New York case in which the court threw out harassment charges against an 18-year-old boy who used MySpace to declare his love for a 14-year-old girl.

This post is about a somewhat similar decision from an Ohio Court of Appeals. I focus on the decision not so much for its substance, as for what I think are some very good observations about the law’s limits in controlling what we say about each other online.

The case is State v. Ellison, 2008 WL 4531860 (Ohio Court of Appeals 2008). You can find the opinion online here: Search for Ellison or for the docket number: C-070875. The decision issued on October 10, so you can find it that way, as well.

Here are the facts that led to Ripley Ellison’s being charged with, and convicted of, telecommunications harassment:

Ellison and Savannah Gerhard were childhood friends but had a falling out during seventh grade. According to Ellison, the fallout occurred when her younger brother accused Gerhard of molesting him. The Hamilton County Department of Job and Family Services (JFS) investigated the claim and determined that it did not have enough evidence to substantiate that the abuse had occurred.

As teenagers, Ellison and Gerhard attended the same high school. During the summer of 2007, Ellison posted on her Internet `MySpace’ page a picture of Gerhard that was captioned `Molested a little boy,’ and she stated in her personal profile that she hated Gerhard. Ellison allowed for public, rather than private, viewing of her MySpace page.

After hearing about the posting . . . Gerhard used the Internet to view Ellison's MySpace page. Gerhard had previously observed a short remark by Ellison on a contemporary's MySpace page that also referred to the molestation accusation. But Ellison never directly communicated these postings to Gerhard, who also had a MySpace account.

Gerhard complained to authorities at her school about the postings. Ellison removed them from her MySpace page at the request of the school's resource officer investigating Gerhard's complaint. Ellison was then charged criminally for telecommunications harassment under R.C. 2917.21(B).

At a bench trial, Gerhard confirmed that Ellison had never directly communicated with her over the Internet and that she had sought out the postings. She added, however, that she had felt `harassed’ by the postings and that she had overheard Ellison make a similar remark about her at school.

Ellison testified that she believed her brother's accusations against Gerhard were true. And she gave the following explanation for posting the offensive material: `I think that other people need to know how she is. And she denies everything, but a lot of people believe that she did it. And I was told that she did it. And so I think that other people have a right to know.’

State v. Ellison, supra.

Ellison appealed her conviction, and the Court of Appeals threw it out. The Court of Appeals began its analysis by pointing out that the Ohio telecommunications statute – which makes it a crime to “make . . . a telecommunication . . . with purpose to abuse, threaten, or harass another person” – required what the law calls a “specific intent” to harass. State v. Ellison, supra (citing Ohio Revised Code § 2917.21(B)).

As the court explained, this meant the prosecution had to prove it was Ellison’s “specific purpose to harass. The burden is not met by establishing only that the defendant knew or should have known that her conduct would probably cause harassment. The legislature has created this substantial burden to limit the statute's scope to criminal conduct, not the expression of offensive speech.” State v. Ellison, supra. The court then held that the prosecution had not discharged this obligation:

[T]he state had the burden of establishing beyond a reasonable doubt that Ellison's specific purpose in making the telecommunication was to harass Gerhard. The state argued that Ellison's posting the `rumor’ after JFS found the allegation unsubstantiated showed a purpose to harass. But JFS's conclusion did not mean that dissemination of the allegation could not serve the legitimate purpose of warning others of what Ellison believed to be criminal behavior. Moreover, it was undisputed that Ellison never directed a telecommunication to Gerhard despite the opportunity to do so. These facts rendered the state's position untenable. No rational trier of fact, viewing the evidence in the light most favorable to the state, could have been convinced of Ellison's specific intent to harass Gerhard when she made the telecommunication.

State v. Ellison, supra. So the court reversed her conviction and “discharge[d] Ellison from further prosecution.” State v. Ellison, supra.

I think the Court of Appeals was absolutely correct in the conclusions it reached and in throwing out the conviction. But what I found particularly interesting and insightful were the comments Court of Appeals Judge Painter offered in a concurring opinion:

It is a scary thought that someone could go to jail for posting a comment on the Internet. If so, we could not build jails fast enough.

The statute on telecommunications harassment is the successor to the former telephone-harassment law. It is designed to prohibit harassing or threatening calls. Of course the calls may now be made over a traditional phone line, a cellular phone, or the Internet. But posting an annoying -- but nonthreatening -- comment on a website is not a crime under this statute. It might well be a civil wrong, but it is not jailable. The First Amendment would not allow punishment for making a nonthreatening comment on the Internet, just as it would not for writing a newspaper article, posting a sign, or speaking on the radio.