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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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Filed Under: 1st amendment, constance mcguire, free speech, indiana, jeremy dodd

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  1. icon
    Stephen T. Stone (profile), 3 Sep 2019 @ 6:06am

    this is what the USA calls JUSTICE is it?

    Not really. Only people who blindly support the police in all situations, even ones where cops clearly broke the law, would dare to call this “justice”.

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