After a jury “found Mark Wooden guilty of two counts of
harassment,” one under Missouri Revised Statutes § 565.090.1(2) and the other under Missouri Revised Statutes §
565.090.1(5) (plus one count of possessing marijuana), he appealed. State
v. Wooden, ___ S.W.3d ___, 2013 WL 85688 (Missouri Supreme Court
2013). Before we get to his arguments on
appeal, I need to outline the facts in the case, according to this opinion.
State v. Wooden,
supra.
The opinion explains that between February 19, 2011 and
February 24, 2011, Wooden,
a resident of the city of St. Louis,
sent a number of emails to various St. Louis area public officials. The emails
contained text, audio attachments, or both. An alderwoman for the Sixth Ward of
St. Louis was one of the recipients of these emails. Wooden did not send any
email to the alderwoman exclusively, and each email included as many as 40
recipients. The alderwoman received the emails at an address displayed on her
official website.
On
February 19, 2011, the alderwoman received an email from Wooden with a 19
minute long audio attachment. The attachment specifically referenced the
alderwoman and compared her to the biblical character Jezebel who, Wooden
stated, abused her weaker subjects. Wooden asserted that, like Jezebel, the
alderwoman spent too much time caring for the powerful and rich in her community
and did not visit or care for the poorer neighborhoods in the Sixth Ward. Wooden
repeatedly used the word `bitch’ and referred to the alderwoman as a `bitch in
the Sixth Ward.’
In the audio attachment, Wooden made
reference to dusting off a sawed-off shotgun and indicated that, at one point
in life, he had personally sawed off the barrel of a shotgun and sanded down
the edges. Wooden stated he was going to make `a mess of everything with his
sawed-off.’
Additionally, Wooden referred to
himself as a domestic terrorist and referred to the John F. Kennedy
assassination, the murder of a federal judge, and the shooting of a
congresswoman, presumably the shooting of Congresswoman Gabrielle Giffords and
murder of United States District Court Judge John Roll. Wooden's tone
throughout a majority of the recording was menacing and, at times, maniacal.
State v. Wooden,
supra.
The opinion also explains that the alderwoman
received four emails
between February 19 and February 21. On February 21, after receiving the fourth
email, she emailed Wooden and asked him to stop emailing her.
Between February 21 and February 24,
Wooden sent three additional emails. At some point, the alderwoman contacted
the police because she felt threatened by the emails. She also sought a
restraining order because, as she testified at trial, she feared for her safety
due to the threatening nature of the emails and the references to the sawed-off
shotgun.
State v. Wooden,
supra.
On appeal, Wooden argued that his harassment conviction under
Missouri Revised Statutes § 565 .090.1(2) should be reversed because (i) the
statute “punishes him for exercising his right to free speech guaranteed under
the 1st Amendment” and/or (ii) the evidence was not sufficient to “support his
conviction.” State v. Wooden, supra. As
to his harassment conviction under Missouri Revised Statutes § 565 .090.1(5),
he argued that it “constitutes plain error because this Court overturned that
provision in State v. Vaughn, 366 S.W.3d 513 (Missouri Supreme Court en banc 2012).” He does not seem to have challenged the marijuana
conviction.
The Supreme Court began its analysis of Wooden’s 1st
Amendment argument by noting that the statute under which he was convicted, §
565 .090.1(2), states that one commits the crime of harassment
`if he or she . . . . [w]hen communicating
with another person, knowingly uses coarse language offensive to one of average
sensibility and thereby puts such person in reasonable apprehension of
offensive physical contact or harm[.]’
State v. Wooden, supra
(quoting Missouri Revised Statutes § 565 .090.1(2)).
The court also explained that the 1st Amendment
`means that government has no power to
restrict expression because of its message, its ideas, its subject matter, or
its content.’ Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972).
The ability to criticize the government and public officials are undeniably
privileges that are afforded to all citizens under the 1st Amendment. . . . See Cohen
v. California, 403 U.S. 15 (1971); N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964). Significantly, `[t]he constitutional guarantees of freedom of
speech forbid the States to punish the use of words or language not within narrowly
limited classes of speech.’ State v. Vaughn, supra (quoting Hessv. Indiana, 414 U.S. 105 (1973)).
State v. Wooden,
supra.
But, as the Supreme Court also noted, the right to free speech
`is not absolute at all times and under all circumstances.’
circumstances.” Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). `There are certain well-defined and narrowly limited classes of speech,
the prevention and punishment of which have never been thought to raise any
Constitutional problem.’ Chaplinsky
v. New Hampshire, supra. Unprotected speech includes `the lewd and obscene,
the profane, the libelous, and the insulting or “fighting” words -- those which
by their very utterance inflict injury or tend to incite an immediate breach of
the peace.’ Chaplinsky v. New
Hampshire, supra.
`It has been well observed that such utterances are
no essential part of any exposition of ideas, and are of such slight social
value as a step to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morality.’ Chaplinsky v. New Hampshire, supra. . . . `Resort to epithets or personal
abuse is not in any proper sense communication of information or opinion
safeguarded by the Constitution, and its punishment as a criminal act would
raise no question under that instrument. Cantwell v. Connecticut, 310 U.S. 296 (1940).
State v. Wooden, supra.
The Supreme Court then took up Wooden’s 1st Amendment
challenge to Missouri Revised Statutes § 565.090.1(2), noting that while his
communications
with the alderwoman involved criticism of her work
as alderwoman, Wooden has not carried his burden of demonstrating that §
565.090.1(2), as applied to him, clearly contravenes a constitutional
provision. In addition to the criticism of the alderwoman and other St. Louis
area public officials, Wooden discussed using a sawed-off shotgun, domestic
terrorism, and the assassination or murder of politicians.
He did so while likening the alderwoman to the
biblical character, Jezebel, who was eaten by dogs as punishment for her abuse
of power, and referring to the alderwoman as a `bitch in the Sixth Ward.’ These
communications are words that, taken together, `through their very utterance
inflict injury or tend to incite an immediate breach of the peace’ and are not
protected by the 1st Amendment. . . . Chaplinsky
v. New Hampshire, supra.
State v. Wooden, supra.
Wooden argued that the Missouri Supreme Court should follow the U.S.
Supreme Court
case of Cohen v. California. Cohen
was convicted of disturbing the peace for wearing a jacket bearing the words
`F___the Draft.’ Cohen v. California, supra. Cohen was convicted under
a statute that prohibited `maliciously and willfully disturb(ing) the peace or
quiet of any neighborhood or person . . . by . . . offensive conduct. . . ‘ Cohen v.
California, supra. The Supreme Court found the conviction was
unconstitutional because it clearly rested on the offensiveness of the word
used. . . . Wooden argues that his conviction, similar to Cohen, rests
solely on the offensiveness of the word `bitch’ used in his communications.
Cohen is
distinguishable from Wooden's case. Wooden's argument that his conviction rests
solely on the offensiveness of the language he used completely ignores his
references to dusting off his shotgun, domestic terrorism, and the
assassination of a number of politicians. Unlike in Cohen, where
the statute criminalized only `offensive conduct,’ here § 565.090.1(2) required
the jury to find Wooden used `coarse language offensive to one of average
sensibilities' and that such communication `put[ ] [the
alderwoman] in reasonable apprehension of offensive physical contact or harm.’
Speech that causes a fear of physical
harm is not speech protected by the United States . . . Constitution. Rather,
it falls into the category of words `[that] by their very utterance inflict
injury or tend to incite an immediate breach of the peace’ and do not receive
constitutional protection. Chaplinsky
v. New Hampshire, supra.
The Constitution does not afford the
luxury of allowing an individual to send threatening communications to
politicians, pepper them with political speech, and then hide behind the
individual rights he or she has maliciously abused. While portions of Wooden's
messages constituted actual criticism of the alderwoman, there is nothing
unconstitutional about punishing Wooden for those unprotected portions that
placed the alderwoman in `reasonable apprehension of offensive physical contact
or harm.’ Because § 565.090.1(2) punished Wooden for his unprotected
communications, it is not unconstitutional as applied.
State v. Wooden,
supra.
The court then took up Wooden’s argument that the evidence
was not sufficient to support his conviction under Missouri Revised Statutes §
565 .090.1(2), which
has three elements: 1) the defendant makes
a communication with another person, 2) during that communication the defendant
uses “coarse language offensive to one of average sensibility,” and 3) “thereby
puts such person in reasonable apprehension of offensive physical contact or
harm.” Wooden admits he made a communication, but he asserts that there
was insufficient evidence for a juror to reasonably find the final two elements
of the crime.
State v. Wooden,
supra.
More precisely, Wooden argued that there was insufficient
evidence to support a
finding that he used coarse language
offensive to one of average sensibility in his communications. This Court
in State v. Koetting, 691 S.W.2d 328, 331 (Missouri Supreme
Court en banc 1985), held that `[c]oarse language directed specifically to an
average person is likely to be offensive.’ Wooden claims that he never directed
any coarse language at the alderwoman.
This contention is undercut by the
audio attachment in which Wooden called the alderwoman the `bitch in the Sixth
Ward,’ made reference to making a mess of everything with his sawed-off
shotgun, and discussed John F. Kennedy getting his `cherry popped.’ Moreover,
Wooden directed these remarks at the alderwoman merely by sending her the email
containing the attachment. Taken together, there was sufficient evidence from
which a juror could reasonably find that Wooden used `coarse language offensive
to one of average sensibility.’
State v. Wooden,
supra.
Wooden also argued that there was insufficient evidence to
find that the alderwoman’s
fear was unwarranted because he did
not make any specific threats of harm and his statements were `metaphoric.’ As
has been noted repeatedly, Wooden singled out the alderwoman in his audio
attachment, he discussed the assassination of politicians, referred to himself
as a domestic terrorist, and stated he would make a mess of things with his
shotgun. Wooden's claims that the statements were metaphoric is irrelevant.
There was no way for the alderwoman, or
a reasonable juror, to know Wooden's subjective intent simply by listening to
the audio attachments or reading the email. The lack of specific threats is
also unpersuasive. Section 565.090.1(2) does not require specific threats
against a person, only a reasonable apprehension of harm. Nothing in this
Court's precedent or the plain meaning of the statute indicates that the only
way a person can be put in reasonable apprehension of harm is through specific
threats. Reviewing all the evidence on the record, there was sufficient
evidence from which a juror could reasonably find that the alderwoman was
placed in reasonable apprehension of offensive physical contact or harm by the
coarse language used by Wooden.
State v. Wooden,
supra.
The court therefore affirmed Wooden’s convictions under
Missouri Revised Statutes § 565.090.1(2).
State v. Wooden, supra.
As to his conviction under Missouri Revised Statutes § 565
.090.1(5), Wooden argued that he had “suffered a manifest injustice because
this Court in State v. Vaughn, supra ruled that § 565.090.1(5) was
unconstitutionally overbroad.” State v. Wooden, supra. And since the
prosecution conceded “that allowing Wooden's conviction” under this statute “to
stand would constitute a manifest injustice”, the Supreme Court reversed his
conviction on that charge. State v.
Wooden, supra.
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