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Harassing Speech Not Protected By Constitution

Tuesday, May 1, 2018  
Posted by: Laura Fenstermaker
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From Minnesota Lawyer

When high school student A.J.B. posted tweets to the account of a classmate who had been diagnosed with autism, he went too far and left the penumbra of First Amendment protection, the Court of Appeals held last week.

Among other things, the tweets urged the classmate to commit suicide and try a new cologne called Anthrax. They also ridiculed persons with autism.

The court affirmed adjudications of A.J.B. for stalking and harassment, turning back assertions that the statutes at issue are unconstitutionally overbroad both facially and as applied. A.J.B.’s speech was criminal and therefore unprotected, the court said in an opinion written by Judge Renee Worke. (See sidebar for text of statutes.)

“[E]ngaging in a pattern of harassing conduct is not protected by the First Amendment simply because it is carried out by means of speech,” the court said in In the Matter of the Welfare of A.J.B., Child.

Some courts feel that social media is so powerful that there have to be controls on its use, said Minneapolis attorney Marshall Tanick. That kind of speech is sometimes seen as “different,” he said, from speech made elsewhere

Tanick noted that in Tatro v. University of Minnesota, the Minnesota Supreme Court allowed the university to impose disciplinary sanctions on student Facebook speech, but only when the speech violates academic program rules that are narrowly tailored and directly related to established professional conduct standards. He also pointed out that in Packingham v. North Carolina, Justice Anthony Kennedy wrote for the majority, “the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.”

The defense would have had a stronger First Amendment case is A.J.B. hadn’t tagged the victim directly, thus making sure he knew the things that were said, said Assistant Scott County Attorney Todd Zettler. The tag weakens the defense argument that A.J.B. was just exercising his right to free speech without intending any harm, he said.

The plaintiff’s attorney, John Arechigo, said his client will petition for review. While the Court of Appeals gave weight to the fact that A.J.B. tagged the student, he maintains that the Twitter post is public speech.  “Maybe the Legislature should look at some kind of cyberbulling statute,” he suggested, although that would also implicate free speech concerns.

Twitter tags

Some high school students, including the defendant, were aware that M.B. had posted some tweets discussing some girls at the school. The defendant created a Twitter account and posted several messages, some relating to autism, that tagged the student, M.B. Some were taunting and mean while others were threatening, urging M.B. to consider suicide and a picture of Pepe the Frog hanging by the neck on a rope. When questioned at the school, A.J.B. admitted posting the tweets.

The defendant was charged with gross misdemeanor stalking and misdemeanor harassment, and the state later added a charge of felony stalking because of disability. He was adjudicated on the stalking and harassment charged, but the felony stalking adjudication was stayed.

Specific conduct

The defendant challenged the constitutionality of the statutes both facially and as applied. A facial challenge requires the court to determine that First Amendment concerns are implicated and if so, whether the law prohibits constitutionally protected activity in a substantial number of its applications. The state did not contest that the statutes implicate the First Amendment and the court agreed because the laws implicated expressive activity.

But the court was not persuaded that the statutes prohibit a substantial amount of protected speech. The stalking and harassment statutes referred to specific conduct—mailing or delivering something to the victim—and also to repeated conduct. The stalking statute also requires that the offender know or have reason to know that the victim will feel frightened or intimidated as a result.

“Because the stalking and harassment statutes penalize only specific, repeated conduct done with intent, knowledge, or reason to know that the conduct will elicit a particular response, we conclude that these statutes are not facially overbroad,” Worke said.

Not like a bulletin board

The court then turned to the as-applied challenge.

A.J.B. compared sending a tweet to passing out flyers or posting information on a bulletin board and said that his actions were not fighting words or true threats. The state argued that the defendant’s First Amendment protection is diminished because Twitter is not a public forum, his statements were threatening and his speech was integral to criminal conduct.

The court first concluded that A.J.B. did engage in expressive conduct that was “inextricably intertwined” with the content of the messages.

But the court rejected the bulletin board analogy, noting that when A.J.B. tagged M.B.’s Twitter account, he intended that M.B. would see it. Tweets tagging a specific individual are both public and specifically targeted, and A.J.B. is not entitled to greater protection because his tweets were visible to the public, the court said.

Integral to criminal conduct

A.J.B.’s speech was unprotected because it was integral to criminal conduct, the court then concluded, while noting that this exception to the First Amendment is unsettled and controversial.

But, the court said, a pattern of harassment is not protected by the First Amendment simply because it is carried out by means of speech.

“The fact that speech was employed as the mechanism for causing the victim distress does not insulate the actor from punishment if the speech was integral to the commission of the crime itself,” the court said.


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