Indiana Appeals Court Decides Badmouthing A Cop On Facebook Is A Crime

from the more-authoritarianism-please dept

The Indiana Court of Appeals has handed down an opinion that says criticizing a police officer — at least in this case — is a criminal offense.

Constance McGuire’s son died in police custody after his arrest, apparently of a meth overdose. (That lawsuit can be read here.) Shortly after this, McGuire posted several comments about the arresting officer. They were unpleasant and crude, but they were also the sort of anger you often see following the death of a loved one while they were in the nominal care of others.

The appeals court opinion [PDF] opens with direct quotes of McGuire’s posts.

At some point, McGuire posted several statements on Facebook mentioning Officer Dodd. These statements were visible to over 1,000 people who were “friends” with McGuire on the social media platform. Officer Dodd was not within that group of people. However, a concerned citizen contacted Officer Dodd and passed along the statements. In those statements, McGuire asserted that Officer Dodd killed her son. She also said: “Yes he set my son up to die. He did do it and so did KPD so y’all better watch out for me cuz I’m coming for all of younand if u work n that Jail I’m comn for u to so u better watch out this mother is on a rampage and ready to shoot to kill.” Ex. 1.3 In one post, McGuire wrote: “Fuck Jeremy Dodd like I said he a whole bitch kill urself u bastard.” Id. At the end of the post, McGuire wrote: “Everyone share.” Id. McGuire also wrote: “FUCK KPD OFFICER JERemy DODD yes I said it loud and proud FUCK U PIG DO SUMTHN BITCH if u don’t know now u kno.” Id. McGuire also mentioned Officer Dodd and said that “when it comes to my kids anyone can get it.”

For this, she was charged and convicted of Harassment. The state statute defines that as:

“A person who, with intent to harass, annoy, or alarm another person but with no intent of legitimate communication . . . uses a computer network . . . or other form of electronic communication to . . . transmit an obscene message or indecent or profane words to a person . . . commits harassment, a Class B misdemeanor.”

McGuire argued she did not “transmit” her communications to Officer Dodd. He was never tagged in any posts and was only made aware of them when someone who had read the posts passed them on to the officer. While the posts contain some violent imagery (“kill urself,” “this mother is on a rampage and ready to shoot to kill”), there’s no evidence McGuire ever directly threatened Officer Dodd or ever intended to do anything more than vent on Facebook.

So, what she said wasn’t a “true threat,” which would have placed her speech outside of the First Amendment’s protections. The state conceded as much. Not directly, but through its decision to pursue harassment charges, rather than intimidation charges.

The state’s broadly-written harassment statute made this possible. The Indiana Appeals Court, unfortunately, sees nothing wrong with applying an overly-broad statute to protected speech. First, the court says the posts were indeed obscene because they contained profanity and the suggestion Officer Dodd end his own life. If the Appeals Court is going to consider profanity a violation of the state’s harassment statute, social media users in this state are going to find it very hard to avoid breaking the law when complaining about other people online.

The court then applies a standard the state itself didn’t use to find McGuire’s speech unprotected by the First Amendment. McGuire wasn’t charged with intimidation, which involves the use of threats. She was charged with harassment, which is a completely different thing. Despite that, the court finds the posts unprotected by declaring her speech threatening.

Here, McGuire engaged in some political expression in that parts of the posts concerned tragic events arising from a traffic stop involving Officer Dodd. Yet, McGuire also said she was “coming for” law enforcement and was “on a rampage and ready to shoot to kill.” Ex. 1. Moreover, McGuire repeatedly directed posts toward Officer Dodd and suggested that he commit suicide. We conclude, when viewed in context, the instant speech was not unambiguously political. This conclusion aligns with that of the trial court, which remarked that “there is a fine line between a [constitutional] right and harassment” and McGuire had “cross[ed] that line.” Tr. Vol. II at 32. Because the speech was not unambiguously political, we apply standard rationality review. See Whittington, 669 N.E.2d at 1370. Upon such review, we conclude the State—in electing to prosecute McGuire—could have reasonably concluded that the speech posed a threat to peace, safety, and well-being. See id. at 1371. Thus, the speech could be regulated without running afoul of Article 1, Section 9.

This is all completely backwards, according to the dissenting opinion. The application of a different standard to work around the state’s overly-broad harassment statute does the state’s work for it, allowing it to keep its harassment conviction while applying a “true threat” standard to McGuire’s speech.

My colleagues assert that there is sufficient evidence that McGuire had “no intent of legitimate communication.” IND. CODE § 35-45-2-2(a). They also attempt to apply the “true threat” analysis to the facts of this case. However, I believe the State has fallen short of proving beyond a reasonable doubt that McGuire’s intent to communicate was not legitimate or that they were “indecent” or “profane.” I.C. § 35-45-2-2(a)(4)(B). In addition, the “true threat” analysis does not apply to this case because it applies to cases of intimidation, a statute which prohibits threats. Throughout this short bench trial, the State presented a case focused on proving that McGuire threatened Officer Dodd and that it was concerned that the “threats” might be carried out. While the concern may very well have been warranted, the State had a statute available to it designed to punish “true threats” against Officer Dodd. It could have charged McGuire with intimidation. I.C. § 35-45-2-1. Indiana’s intimidation statute prohibits persons from communicating threats. In fact, it specifically defines eight separate types of threats that may be prosecuted. I.C. § 35-45-2-1(d)(1)-(8). Instead, the State chose to prosecute McGuire under Indiana’s harassment statute; a statute that does not mention anywhere in its text the word “threat,” and a statute that does not define the statutory elements concerning what is “legitimate communication,” “indecent,” or “profane words.” I.C. § 35-45-2-2(a)(4)(B).

The dissent then points out the state’s conviction relies on a broad statute that criminalizes a lot of protected speech. That it chose to go this route with criminal charges indicates it knew it couldn’t actually make a case using the more narrowly-crafted law.

It is clear from the record that the State sought to prosecute McGuire because it was worried about whether her Facebook posts naming Officer Dodd would result in violence. While the State’s concern was warranted, we must still follow the law concerning First Amendment rights. It is well settled that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg, 395 U.S. at 447 (emphasis added). There was simply no evidence introduced at trial that McGuire’s Facebook posts were directed at producing imminent lawless action and that it was likely to occur.


If my colleagues believe that McGuire’s comments were a “true threat,” then they must acknowledge that the State’s concern was the intimidating nature of McGuire’s Facebook posts; in other words, the likelihood that she or someone else would carry out those threats. See Brandenburg, 395 U.S. at 447 (requiring proof that the threat of imminent lawless action was also likely to occur). Yet, the State’s decision to charge McGuire with harassment and not under Indiana’s intimidation statute is extremely telling about its own belief in the lack of evidence surrounding McGuire’s intent.

In short, the state knew it likely couldn’t make intimidation charges stick, so it went with a law the dissent calls out as unconstitutional. The correct thing for the court to do was toss the charges and criticize the law. Instead, the majority decided to apply a standard lifted from another law to make the charges stick. Because it has done so, there’s precedent on the books that will encourage government employees and officials to pursue harassment charges because someone has said mean things about them on social media. That may not have been the court’s intent, but that’s the outcome.

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Comments on “Indiana Appeals Court Decides Badmouthing A Cop On Facebook Is A Crime”

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That One Guy (profile) says:

Having it both ways

The judges involved should look into circus work, as they seem to be extremely practiced at contortionism. Her posts were threats when it came to the standard applied, except they weren’t threats when it came to what she was charged with, whatever it took to find her guilty and avoid those pesky first amendment protections.

Hopefully the judgement can be appealed to a higher court and struck down, because as it stands it is practically made to be abused by thin-skinned government employees who might be upset someone said something mean about them.

Bruce C. says:

Re: Having it both ways

I’m torn on this one. First of all, I agree that the state and the appeals court are pulling a switcheroo here. If she was charged under the harassment law, the standards of that law should be applied, and they weren’t. So for this particular case, at this particular time, I think the appeals court got it wrong.

The flip side is that the intimidation law seems a tad too narrow to achieve its purpose.

He did do it and so did KPD so y’all better watch out for me cuz I’m coming for all of younand if u work n that Jail I’m comn for u to so u better watch out this mother is on a rampage and ready to shoot to kill.

This is a fairly specific threat, made in front of a large group of people, with some credibility behind it based on motive — hence the report by the "concerned citizen". Is it protected speech? Or just unprotected speech that doesn’t properly fit into either of the two statutes involved in this case?

Anonymous Coward says:

Re: Re: Re: Having it both ways

And someday you might get that these kinds of threats often precede mass shootings and need to be dealt with before the shooting occurs. A mother’s grief is far more acute than that of being rejected by the opposite sex. There has to be a line in the sand which when crossed results in suppressive action.

Like filters for anything else, how do you choose which credible threats you take action on? Or do you take action on all of them to prevent deaths?

This cop probably deserves the most severe of punishments but threatening to take vigilante justice is a pretty obvious way to end up in a courtroom.

Anonymous Coward says:

Re: Re: Re:2 Having it both ways

You and the GP are taking polarizing positions on this though. This goes beyond someone venting their anguish and anger — "I hope you die a long and painful death for what you did to my son" would be venting. Threatening to come and shoot the person is indeed a threat.

However, in this situation, nobody appears to have considered it a credible threat. So the result should have been a visit to the mother from someone to assess her mental state, see if she was a risk, and possibly provide some constructive grief counseling.

Seems like both prosecuting her and ignoring her in the circumstances are extremely bad form — and somehow they managed both, to a degree.

That One Guy (profile) says:

Re: Re: Having it both ways

That particular comment does seem to toe the line between venting and a threat, the problem is that based upon how they responded and what they actually charged her with even they didn’t seem to consider it a credible threat or one they could actually punish her for, hence the switch.

If it was seen as a real threat and they have a law on the books to handle that(or even if they don’t, as far as I know ‘true threats’ aren’t covered by the first amendment and I’d be surprised if there wasn’t a federal law that would cover them), then they should have used that law with that standard. The fact that, as pointed out by the dissent, they didn’t even try makes pretty clear that even they knew that wasn’t going to work, whether because the law is ‘too narrow’, or as I suspect because they’d have a hard time making it stick between the usual internet hyperbole and grief making people say stupid things.

Is it protected speech? Or just unprotected speech that doesn’t properly fit into either of the two statutes involved in this case?

With the first amendment unless it falls into a very narrow list of categories it’s protected. Assuming for a moment that the statutes are on the right side of constitutional limits if the speech doesn’t fit in one or the other, even if accidentally, then it would still be protected speech.

Stephen T. Stone (profile) says:

The Indiana Court of Appeals has handed down an opinion that says criticizing a police officer — at least in this case — is a criminal offense.

Correction: The Indiana Court of Appeals dropped a load of shit disguised as a judicial opinion out of its collective ass that says what would normally be protected speech is, in this case, a criminal offense.

Anonymous Coward says:

After this is overturned, does she get to sue the state?

This decision is going to be overruled based on the unconstitutional aspects alone. After her conviction is vacated, will she be able to pursue charges against all of the people who violated her rights by charging and convicting her? This would be intimidation by state employees at least. They killed her son, now they are trying to harm her as much as possible. Doubling down on stupidity seems to be the rule of the day.

Anonymous Coward says:

Re: After this is overturned, does she get to sue the state?

After her conviction is vacated, will she be able to pursue charges …

Probably not. The judge will rule the clock for that started when she was charged, regardless that the conviction and appeal came years later, thus "too late, so sorry".

James Burkhardt (profile) says:

Re: Re: After this is overturned, does she get to sue the state?

A) That there is a statute of limitations that is running out is not in evidence. Those convicted as a result of malfeasance often have been able to get settlements if not verdicts in their favor when that malfeasance is laid bare even decades later. And 42 USC §1983 (where civil right violations come into play) has no statute of limitations.

B) The real issue is that most of the people involved are likely to be held not personally liable – various forms of immunity protect prosecutors and judges from lawsuits related to their jobs, often an absolute immunity. The jurisdiction – the city or county or state – might be held liable. But given it was law, the government could also potentially skate.

A civil rights lawsuit would not hinge on a statute of limitations. It could however die due to a perceived reasonableness to apply the law. Most likely though? Undisclosed settlement.

Tanner Andrews (profile) says:

May Be the End of the Line

Remember, you normally only get one level of appeal as a matter of right. She got her appeal, but she got a substandard panel in that at least two of them would have needed to have the briefs printed on drool-proof paper in order to read all the way through.

There may be an optional level of further appeal in the state courts. Failing that, be one of the ~90 chosen from some thousands by the US Supreme Court each year.

James Burkhardt (profile) says:

Re: May Be the End of the Line

Actually, The first step is state supreme court. Then, if the state rules against her or refuses to take up the appeal, because the claims implicate her federally granted rights, she could file an appeal to the federal district court, before the SCOTUS get involved.

If this wasn’t an appeal based on federally granted rights, the federal district courts couldn’t come into play, but they can enforce federally granted rights onto the states.

Tanner Andrews (profile) says:

Re: Re: May Be the End of the Line

> "you normally only get one level of appeal"

Where is this written in law?

In Federal, the judiciary acts tell you that you can appeal from the trial court (district courts) to the circuit (appeals) courts. After that, your only chance is a petition for cert, in which your case may or may not be considered by the U.S. Supreme Court. Actual consideration is unlikely because they receive far more petitions than they can handle.

In state courts, it varies somewhat. The practice here is that you get one appeal to the next level, then you can petition for cert above that. Petitions for cert are usually but not always denied, so effectively you get one level of appeal.

As an added bonus, here, we have four levels of court. So, if you start in county court, appeal to circuit court, and fail, you may be able to bring a petition for cert to the next level. If that fails, in some exceedingly rare cases, you may be able to bring "second cert" to the top level.

If you cannot go to a higher level in state court, then you still have the option of petitioning for cert to the U.S. Supreme Court. Thus, Los Angeles v. David, 538 U.S. 715 (2003) (upholding parking ticket against due process challenge).

Pixelation says:

Free pass?

It is interesting that they didn’t try and prosecute this as a direct threat.

"…this mother is on a rampage and ready to shoot to kill"

Does she get a pass on it because she is a woman? If this was a father or brother, he would have been hauled off immediately in cuffs. Unless I’m missing something, being upset and threatening to kill someone is not protected speech. Does it rise to the level of threat? I would feel threatened.

Anonymous Coward says:

Re: Free pass?

I think the state should have tried to use the intimidation statute instead of harassment. Based on her language it would indeed be a threat. But because she didn’t send it directly to the officer and she was mourning the loss of her son she might be seen as not actually guilty of intimidation by a jury. So instead the state abused the existence of the badly written harassment law to pursue charges. Even though that law shouldn’t have been applied because ahe didn’t meet the requirement set by the statute.

Yet, McGuire also said she was “coming for” law enforcement and was “on a rampage and ready to shoot to kill.” Ex. 1. Moreover, McGuire repeatedly directed posts toward Officer Dodd and suggested that he commit suicide. We conclude, when viewed in context,

I think the majority opinion did take the words out of context and were probably influenced by the uptick of officers being shot on the job in the news.
Based purely on what I’ve read here I would say she is not guilty on all charges. So unless there was other evidence of intent to harm instead of just grieving she did not receive justice.

tom (profile) says:

She is lucky they didn’t charge her with some type of threatened domestic terrorism. She didn’t just threaten the officer that arrested her son but everyone that works in the jail. Some poor janitor that works there could read that threat and feel some degree of concern. Same for a contract electrician there to fix a problem.

In today’s world, you can’t assume that this is the harmless rantings of a pissed off grieving mother.

Anonymous Coward says:

That is why you want to be very careful about using social media in the USA

When I have gone on road trips, I have used DailyMotion, which is located in Paris, because Californias distracted driving laws actually make it a tickatable offense to record videos, or at least talk on them while driving.

To avoid problems, I upload such videos to DailyMotion, in case the CHP should ever be watching, becuase DailyMotion cannot be subpoenaed by the CHP, becuase DailyMotion, and their servers, are located in Paris, France.

Dailymotion is only subject to French and EU laws, and is not subject to any laws in California. They are in France, they only have to obey French and EU laws.

I also use a VPN to hide the originating IP, because their is one way they could still get the information they want. They could break into the database backend. Governments have done that before. And if they did that, they would only get the IP address of the VPN, and by usign a true no log VPN, I cannot be traced.

Now, I don’t have my face, I just have a camera pointed out the windshield. I just point out things as I drive along the road.

DailyMotion cannot be compelled by any court in California, to reveal any info who posted a video to the site.

Anon says:

Wow this story hurt to read and actually made me cry a little. My heart breaks for this woman who lost her kid and who was understandably lashing out in anger and grief online.

This is where holding individuals liable for angry internet comments gets overly harsh and abusive – this lady is rightfully gutted over the situation and honestly deserves compassion. It’s disgusting that are treating her like a real threat when she’s hurting and obviously in too much of a traumatized mindset to navigate legal liability for posting while grieving.

Anonymous Coward says:

Corruption And tyrannical tyranny of our civil & constitutional

These judicial judges in Indiana are all corrupt due to DCS they are violating our civil and constitutional rights plaguing our great nation with their self profiting lies and judications of what they don’t even know which is the law. I bet you they are getting paid why is Indiana building more jails? Why are they talking about forever homes which stripes children from loving and caring parents? For money brothers and sisters look up your constitutional and civil rights they are being demolished and what are any of us doing about it? What’s the federal government doing about it? Nothing because this state has fallen from its former glory. They are taking your freedom and your children from you throwing you in jail for a long amount of time ruining your lives and it’s all for a profit! Take this time to take action to these suppressors that are trying to heard us cattle into a small pin. They are using picking and choosing what laws benefit them while contradicting and breaking other laws. If we do not follow in our fore fathers foot steps and quash this corruption that has ensnared our state fighting for our rights and civil liberties and constitutional and civil rights they will use them to take your children all the mean while throw you in jail. It’s already happening I implore you to take a look look through records just for you that for right now are public knowledge to see what they are doing. What they don’t want you to know this is why DCS has asked the federal government to seal any and all documents with their corrupt dealings through taking people’s children and the civil and constitutional rights they are violating. These people are an affliction in our society whom are criminally using what laws benefit them to feed off of society like a sickness and persecute the innocent for their own gain. Indiana will become a policed state and soon none of you will have the freedom you think you had if we do not take action they will win they have already started. It’s your choice for now but soon they have already taken/ weed out any possible way for you to be free. I implore you to stand up don’t fall victim to their corrupt ways protest and fight to be free and keep the way our fore fathers wanted alive and those of our brothers and sisters whom have sacrificed so much not be in vein and what they are doing is a abomination to those whom have died and are fighting to protect this country every day they do not honor them but spit on the constitution and everything America stands for. The biggest question is are you the people going to stand for this?

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