Friday, July 22, 2016

The "Internet Troll" and "Knowingly Offering to Purchase Official Ballots"

This post examines a recent opinion from the Court of Appeals of Oregon:  State v. Hirschman, 2016 WL 3675617 (2016).  The court begins by explaining that
[a]cting as a self-described `Internet troll,’ defendant posted an advertisement on Craigslist, stating that he would give $20 to a person who would bring the person's official ballot to defendant, let defendant complete it, then sign the person's own name and submit the ballot to an elections volunteer. It is undisputed that defendant did not intend to actually vote using another person's ballot. To the contrary, the state acknowledged that defendant's motives were `political shenanigans * * * on the Internet’ and `entertainment.’ Nonetheless, the state charged defendant with knowingly violating Oregon Revised Statutes §260.715(9), which prohibits making an `offer to purchase, for money or other valuable consideration, any official ballot.’ The trial court convicted defendant after rejecting his arguments that Oregon Revised Statutes §260.715(9) unconstitutionally abridges expression and that his actions had not violated the statute.
State v. Hirschman, supra.
The court went on to explain that
[o]n appeal, the parties dispute the meaning of certain terms used in §260.715(9). They also disagree about whether the statute, as properly construed, violates various constitutional provisions, including Article I, section 8, of the Oregon Constitution.  We conclude, as explained below, that defendant's actions violated Oregon Revised Statutes §260.715(9). That is, by making the Craigslist posting, defendant did `offer to purchase’ a ballot, because his words communicated that he was proposing to acquire another person's ballot in exchange for money. However, we also conclude that the statutory prohibition on making an `offer to purchase’ a ballot is facially unconstitutional because, by its terms, it criminalizes expression and is not wholly contained within a well-established historical exception to the protections of Article I, section 8. Accordingly, the trial court should have granted defendant's demurrer. Because it did not, we reverse and remand.
State v. Hirschman, supra.
The Court of Appeals began its analysis of the issues in the case by explaining that
[t]he facts are not in dispute. A few days before the 2010 general election, defendant posted on the Craigslist political forum website. The posting stated,

`Wanna make an easy $20 for voting? (Downtown Bend)’

`Are you interested in making a quick and easy $20? Meet us in the parking lot downtown near the drop off voting booth this weekend. All you need to do is bring your UNFILLED clean voting ballot and let us fill it out then you sign, and we hand it to the volunteer in the voting booth. Its [sic] that simple! Then you get $20. We'll be there all weekend through [T]uesday.’

(Boldface in original.) Craigslist deleted the post within half an hour. Although the posting included a link allowing people to reply to defendant's message, he did not get any responses during the brief time the message was posted.

A Bend police officer investigated defendant's posting. He went to the ballot drop off site but did not see any suspicious activity. The Oregon Secretary of State's office then opened an investigation and referred the matter to Oregon Department of Justice Special Agent Todd Gray. Gray traced the posting to defendant. During defendant's subsequent interview with Gray and another agent, he was `compliant and cooperative.’ Gray testified that defendant seemed `shocked that what he had done had risen to the level to have two special agents from the Attorney General's Office interviewing him.’

During the interview, defendant acknowledged that he had created the Craigslist posting. Defendant maintained, however, that he had not purchased or attempted to purchase official ballots. Instead, he contended that he `was basically making a mockery of the system, and more so than anything, playing around, goofing around on the Internet.’ Further, defendant stated, `There's a lot of vulgarity there, and then people's political opinions, and I felt like I needed to chime in.’
State v. Hirschman, supra (emphasis in the original).
The opinion goes on to explain that the
state charged defendant by district attorney's information with knowingly offering to purchase official ballots in violation of Oregon Revised Statutes §260.715(9). Defendant demurred to the information before trial, contending that Oregon Revised Statutes §260.715(9) facially violates the free speech protections of the state and federal constitutions. In arguing that Oregon Revised Statutes §260.715(9) violates Article I, section 8, of the Oregon Constitution, defendant asserted, among other things, that the statute directly regulates speech and is not wholly contained within a well-established historical exception to section 8's protections.

The trial court denied defendant's demurrer. Specifically, the court concluded, in part, `that Oregon Revised Statutes §260.715(9) is directed at harmful effects. * * * The statute is not directed at the content of speech; the statute prohibits conduct, specifically a type of commerce rather than speech itself.’ Additionally, the court concluded that the statute is not overbroad or unconstitutionally vague. In so deciding, the court accepted the state's definition of `offer’ as being `a proposal to enter into a bargain wherein a ballot is exchanged for consideration,’ regardless of whether the person making the offer subjectively intended to complete the transaction.

During a discussion of proposed jury instructions, the parties again debated the meaning of the word `offer.’ In that context, the trial court rejected defendant's argument that a communication qualifies as an `offer’ only if the offeror `actually intend[s] to enter into the contract.’ To the contrary, the court reasoned that `offer’ means `a proposal communicated by either words, conduct, or both that would reasonably lead the party to whom it is made to believe that the proposal is intended to create a contract, if accepted,’ without regard to the offeror's subjective intent.
State v. Hirschman, supra.
The Court of of Appeals also pointed out that,
[d]uring the subsequent bench trial, the state stipulated that defendant's `motive’ was `political shenanigans’ and to be an `internet troll,’ `meaning a person who takes contrarian positions online in an effort to agitate others.’ The state also stipulated that there was no evidence that defendant actually tried to purchase an official ballot. Moreover, the state recognized that `people do post crazy political satirical things to the Internet, and they do so on the same page in which [defendant] posted this advertisement.’ Defendant testified at trial that he did not believe that a reasonable person would understand his post as making a serious offer to purchase a ballot. He also stated that, in hindsight, he wished his post had specified that it was satirical, but hedged: `obviously it's not a good joke if you put that at the end, because then you don't get the response.’

After the state rested, defendant moved for judgment of acquittal, contending, in part, that he `did not offer to purchase an official ballot for money.’ (Emphasis in original.) In essence, defendant contended that he had not offered to `purchase’ a ballot, but had offered money only for the privilege of completing the ballot. Additionally, defendant argued that he had not knowingly or intentionally made an `offer,’ because no reasonable person would believe that his post manifested an actual intent to purchase a ballot and because a person does not `offer’ to purchase a ballot, as that term is used in Oregon Revised Statutes §260.715(9), unless the person intends to complete the transaction. The court denied defendant's motion. Defendant raised similar points, again unsuccessfully, during his closing argument. The court again rejected those arguments, found defendant guilty, and sentenced him to 12 months of bench probation.
State v. Hirschman, supra (emphasis in the original).
The Court of Appeals then summarized the issues raised by Hirschman’s appeal:
Defendant appeals, renewing his challenges to the trial court's interpretation of `purchase’ and `offer’ and, alternatively, his challenges to the constitutionality of Oregon Revised Statutes §260.715(9). Specifically, defendant asserts that the trial court erred in three respects: (1) in disallowing defendant's demurrer, which challenged the facial constitutionality of Oregon Revised Statutes §260.715(9); (2) in permitting `the state to elect a theory of Oregon Revised Statutes §260.715(9) that interpreted “offer” to have the same definition as the Uniform Civil Jury Instructions’; and (3) in denying defendant's motion for judgment of acquittal, particularly referencing the court's interpretation of `purchase’ and `offer.’ We begin our analysis by considering the statutory-interpretation issues raised in defendant's challenge to the denial of his motion for judgment of acquittal. See State v. Rodriguez-Moreno, 273 Or. App. 627, 633 n.6, 359 P.3d 532 (2015), rev. den, 358 Or. 611, 369 P.3d 386 (2016) (courts generally address statutory arguments before constitutional arguments, and address state constitutional arguments before those based on the federal constitution). We then address defendant's contention that the trial court should have granted his demurrer.
State v. Hirschman, supra.
The court began its analysis of the issues in the case by explaining that
`[w]e review the denial of a motion for judgment of acquittal to determine whether, ‘after viewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’  State v. Pedersen, 242 Or. App. 305, 311, 255 P.3d 556, rev. den., 351 Or. 254 [264 P.3d 556, rev. den, 351 Or. 254 [264 P.3d 1285] (2011) (internal quotation marks omitted). However, when ‘the dispute * * * centers on the meaning of the statute defining the offense, the issue is one of statutory construction,’ which we review for legal error.  State v. Hunt, 270 Or. App. 206, 210, 346 P.3d 1285 (2015) (internal quotation marks omitted).’

State v. Summers, 277 Or. App. 412, 371 P.3d 1223 (2016). We review a trial court's denial of a demurrer for legal error. State v. Woodall, 259 Or. App. 67, 69, 313 P.3d 298 (2013), rev. den., 354 OR. 735, 320 P.3d 567 (2014).  
State v. Hirschman, supra.
The Court of Appeals then took up Hirschman’s motion for a judgment of acquittal:
Again, defendant was charged with knowingly violating Oregon Revised Statutes §260.715(9), which provides in, pertinent part: `A person may not * * * offer to purchase, for money or other valuable consideration, any official ballot * * *.’ Defendant first argues that he was entitled to a judgment of acquittal because his Craigslist posting did not offer to `purchase’ a ballot. In defendant's view, to `purchase’ a ballot means `to acquire or take ownership of’ that tangible object. He contends that his posting suggested only that defendant wanted to use another person's ballot, for a short period of time, by completing it and giving it back to that person, who would then sign the completed ballot. Such an action does not, according to defendant, amount to a `purchase.’

The state acknowledges that the term `purchase’ can, as defendant asserts, mean the acquisition of a tangible object. The state argues, however, that the term also encompasses the act of buying the intangible right to use an object.

We need not resolve the parties' disagreement about the extent to which the word `purchase,’ as used in Oregon Revised Statutes §260.715(9) may (or may not) extend to acquiring intangible rights to use a ballot or one of the other items listed. As the parties agree, the plain meaning of `purchase’ includes the act of paying money to acquire an object. See State v. Briney, 345 Or. 505, 511, 200 P.3d 550 (Oregon Supreme Court 2008) (courts give an undefined term of common usage a `plain, ordinary meaning’). Here, the evidence is sufficient to support a finding that defendant offered to make just that kind of purchase. Again, his Craigslist posting stated, in part:

`Meet us in the parking lot downtown near the drop off voting booth this weekend. All you need to do is bring your UNFILLED clean voting ballot and let us fill it out then you sign, and we hand it to the volunteer in the voting booth. Its [sic] that simple! Then you get $20.’

(Emphases added.) That posting proposed that an elector give defendant and some unknown other person (`us’) a ballot to fill out, that the elector then sign the ballot, and that defendant and his accomplice (`we’) then hand in the ballot. Thus, the posting suggested that defendant wished to pay $20 to divest an elector of a ballot and acquire it himself, albeit for a short period of time, before he and an accomplice would hand it over to an elections volunteer. That acquisition of a tangible ballot in exchange for money would constitute a `purchase’ within the plain meaning of that term, even though defendant stated that he planned to keep the ballot only temporarily. The trial court did not err by denying defendant's motion for judgment of acquittal to the extent it was based on defendant's contention that what he proposed was not a `purchase.’
State v. Hirschman, supra.
The opinion went on to explain that
Defendant also contends that the state failed to prove that he made an `offer’ at all. In his view, the phrase `offer to purchase,’ as that phrase is used in Oregon Revised Statutes §260.715(9), carries a requirement that the state prove that the offeror intend to follow through with the purchase. The state contends that `offer’ carries its plain meaning and it therefore suggests that Oregon Revised Statutes §260.715(9) `prohibit[s] any statement that a reasonable person would understand to be a proposal to buy or sell a ballot.’ The state argues in its brief that giving the word `offer’ that meaning—which does not require proof that the offeror intended to carry through with the purchase—reflects legislative intent `to prevent not only realized misconduct, but also the enabling of misconduct (such as the creation of a marketplace for ballots) as well as the public perception that election results are untrustworthy because ballots are for sale.’ (Emphases in original.)
State v. Hirschman, supra (emphasis in the original).
The court then explained that it was going to begin its analysis of the issues in the case
with the words of the statute itself. See Bundy v. NuStar GP, LLC, 277 Or. App. 785, 793, __P.3d __ (2016) (in construing a statute, `we give primary weight to the text and context of the provision”). The term `offer’ is not statutorily defined for purposes of Oregon Revised Statutes §260.715(9) so we consider its dictionary definition. Webster's defines `offer’ as `to present for acceptance or rejection * * * an action or movement indicating a purpose or intention of doing something.’ Webster's Third New Int'l Dictionary 1566 (unabridged ed. 1993). That definition looks only to what the offeror's actions would objectively indicate to another person, not to what the offeror may subjectively intend. Similarly, Black's Law Dictionary 1189 (10th ed. 2014) defines `offer’ as

`1. The act or an instance of presenting something for acceptance; specif., a statement that one is willing to do something for another person or to give that person something * * * 2. A promise to do or refrain from doing some specified thing in the future, conditioned on an act, forbearance, or return promise being given in exchange for the promise or its performance; a display of willingness to enter into a contract on specified terms, made in a way that would lead a reasonable person to understand that an acceptance, having been sought, will result in a binding contract.’

Like Webster'sBlack's definition of `offer’ focuses on the offeror's actions and what they “would lead a reasonable person to understand,” and does not reflect anything about the offeror's subjective intent. Thus, the dictionary definitions of the word are consistent with the trial court's determination that `offer,’ as used in Oregon Revised Statutes §260.715(9), relates to the message that the offeror has conveyed, and that it does not require the state to prove that a person charged with offering to purchase a ballot actually intended to follow through with the purchase. We conclude that the word `offer’ means, in this context, a communication that would objectively be understood as proposing to engage in a described transaction. . . .

In sum, the trial court did not err when it rejected defendant's contention that the phrase `offer to purchase,' as used in Oregon Revised Statutes §260.715(9), encompasses a requirement that the person charged with violating the statute have subjectively intended to follow through on that offer if it were accepted. The trial court correctly denied defendant's motion for judgment of acquittal to the extent it was premised on that interpretation of the statute.
State v. Hirschman, supra.
Next, the Court of Appeals explained that
[t]o recap: in rejecting defendant's challenge to the denial of his motion, we have concluded that a person `offer[s] to purchase * * * any official ballot,’ for purposes of Oregon Revised Statutes §260.715(9), if the person communicates a message that objectively would be understood as proposing to purchase the right to use another person's ballot. With that understanding in mind, we turn to defendant's argument that the trial court should have granted his demurrer because the statute abridges expression in violation of Article I, section 8.
State v. Hirschman, supra.
The court pointed out that that Article I, section 8, of the Oregon Constitution, provides: `No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.’  It also explained that “[u]nder the analytical framework described in State v. Robertson, 293 Or. 402, 649 P.2d 569 (Oregon Supreme Court 1982), we determine into which of three categories the challenged statute falls.” State v. Hirschman, supra.
The Court of Appeals went on to describe the three Robertson categories:
`Under the first category, the court begins by determining whether a law is ‘written in terms directed to the substance of any opinion or any subject of communication.’ . . . State v. Robertson, supra. If it is, then the law is unconstitutional, unless the scope of the restraint is ‘wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach.’. . . If the law survives that inquiry, then the court determines whether the law focuses on forbidden effects and ‘the proscribed means [of causing those effects] include speech or writing,’ or whether it is ‘directed only against causing the forbidden effects.’ . . . If the law focuses on forbidden effects, and the proscribed means of causing those effects include expression, then the law is analyzed under the second Robertson category. Under that category, the court determines whether the law is overbroad, and, if so, whether it is capable of being narrowed. State v. Robertson, supra. If, on the other hand, the law focuses only on forbidden effects, then the law is in the third Robertson category, and an individual can challenge the law as applied to that individual's circumstances. State v. Robertson, supra.
State v. Hirschman, supra.
The court went on to explain that
[f]or two reasons, we readily conclude that the statutory provision is, by its terms, directed toward the content of expression. First, as noted, we have construed the term `offer to purchase’ to mean a communication that objectively conveys a proposal to purchase another person's ballot. Thus, by prohibiting the making of such an offer, the legislature has criminalized the act of communicating a certain message. Because a person can violate the pertinent part of Oregon Revised Statutes § 260.715(9), only through expression—by communicating the prohibited message—that part of the statute appears, by its terms, to fall within the first Robertson category. See State v. Moyer, 348 Or. 220, 232, 230 P.3d 7 (2010) (statute prohibiting making a campaign contribution in a false name fell within the first Robertson category because `the falsity that the statute prohibits can only be achieved through expression—through one person's communication of a falsehood to another person’).

Second, Oregon Revised Statutes § 260.715(9), is not specifically directed against any harmful effects of the prohibited communication in a way that would bring the statute within the second Robertson category. Even assuming that the state has accurately characterized the harms that the legislature may have hoped to prevent, a person's communications can violate Oregon Revised Statutes § 260.715(9), whether or not the targeted harms occur. Thus, defendant's Craigslist posting violated the statutory prohibition against offering to purchase a ballot without regard to whether, in fact, that posting created public doubt in the validity of elections or the appearance of fraud. . . .
State v. Hirschman, supra (emphasis in the original).
Therefore, the court explained because the State, i.e., the prosecution, had not
suggested any other well-established historical exception to Article I, section 8,  protections that might apply to the restriction on expression that Oregon Revised Statutes § 260.715(9), imposes, and we are not aware of one.  Nonetheless, the state argues more broadly that `a historical exception exists authorizing the government to closely regulate the electoral system in order to ensure the accuracy and validity of its results, as well as public trust in the accuracy and validity of those results.’ The state's argument reduces to a contention that any election law designed to promote public trust in the state's election system must be constitutional, even though it restricts speech.

That argument . . . cannot withstand Vannatta v. Keisling, 324 Or. 514, 931 P.3E 770 (1997), in which the Supreme Court rejected an analogous argument offered in support of statutes restricting campaign contributions. In that case, an amicus had argued `that the harm targeted by the contribution limitations is the existence of undue influence in the political process, or at least the appearance thereof.’ Id. at 539, 931 P.2d 770 In dismissing the argument as having `select[ed] a phenomenon and label[ed] it as a ‘harm,’ the court observed that,

`if the purpose of the limitation simply is to improve the ‘tone’ of campaigns, as [the amicus] seems at bottom to be arguing, the constitutional answer must be even clearer: The right to speak, write, or print freely on any subject whatever cannot be limited whenever it may be said that elimination of a particular form of expression might make the electorate feel more optimistic about the integrity of the political process. A contrary result would make illusory the protections afforded by Article I, section 8.’  

Id. The same is true here. No matter how much one might wish to reduce cynicism about elections (and any justifications for that cynicism), the legislature cannot accomplish that goal by suppressing expression because of the `supposed harm that the message itself might be presumed to cause to the hearer or to society.’ State v. Ciancelli, 339 Or. 282, 318, 121 P.3d 613 (2005).   But that is exactly what the pertinent part of Oregon Revised Statutes § 260.715(9) does.

In sum, the statutory prohibition on making an `offer to purchase’ a ballot, contained in Oregon Revised Statutes § 260.715(9), violates Article I, section 8, of the Oregon Constitution.  The trial court erred when it denied defendant's demurrer to the information, which charged him with violating that statute.
State v. Hirschman, supra.
The court therefore reversed Hirschman’s conviction and remanded the case to the trial court for further proceedings.  State v. Hirschman, supra.


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