The Volokh Conspiracy - First Amendment Precludes "Ethnic Intimidation" Prosecution for Letters to Columnist:

I just got the text of an interesting and nearly unreported-on decision from an Ohio trial court. Michael Coon wrote three e-mails to Amjad Hussain, a Muslim columnist for the Toledo Blade, who was apparently born in Pakistan. (Hussain is a heart surgeon at the University of Toledo, where he has worked for over 30 years.) The e-mails were insulting, ranting, and vitriolically hostile to Muslims and, at times, Middle Easterners. But as I read them, they did not contain any overt threats to Hussein. Nor did the prosecution's brief point to any specific supposed threats, though it often spoke of Coon's "motive to harass, abuse, and threaten Dr. Hussain."

Nonetheless, Coon was prosecuted for telecommunications harassment, aggravated by its being ethnic intimidation. The prosecution seems to have at first argued that Coon violated 2917.21(A)(5) by communicating with Hussain after Hussain had told him to stop e-mailing him; but that line of reasoning was apparently dropped, seemingly because Hussain had never made such a demand personally (though apparently the Sheriff's Office did make such a demand, perhaps at Hussain's behest). The prosecution instead focused on 2917.21(B), which bars communicating with a person (via e-mail, phone, and the like) "with purpose to abuse, threaten, or harass another person."

The judge rejected this theory, on the grounds that "although angry and intolerant, read in context, the intent established is one of political discourse," and the speech was thus "protected political speech." I think the courts should go further, and conclude that otherwise protected speech — i.e., speech that doesn't fit within an exception such as that for true threats, or for fighting words — can't be punished even if a judge or jury finds that the speaker had the "purpose to abuse ... or harass." (Note that this speech can't be fighting words because it wasn't face-to-face, and was thus extremely unlikely to lead to an immediate fight between the target and the speaker. The fighting words exception is generally limited to such speech, because the justification of the exception is preventing such fights.) But at least the judge reached the right result, and perhaps this was the best the judge could do given the posture of the case.

I should add that I think a statute that generally lets people demand that others stop e-mailing them (perhaps with some exception for situations where the e-mail is necessary for some sorts of business or government service purposes), and punishes those who continue e-mailing after the demand is received, would indeed be constitutional. It would be much like the statute upheld as to traditional mail in Rowan v. U.S. Post Office Dep't (1970). And it would be justifiable because it would leave the writer free to correspond all he wants with willing or potentially willing readers, and only block communications to people who have clearly expressed their lack of interest in the writer's messages. It would also avoid (if properly drafted) courts deciding whether the speaker's intent was really "to abuse ... or harass" (both vague terms rife with the possibility of viewpoint discrimination in application) or to engage in "political discourse."

But the state's theory in this case was indeed focused on the statute barring abusive/harassing messages, and I'm glad that the court rejected that theory. I should add, by the way, that in my view the defense memorandum in this case struck me as much better written and argued than the prosecution memorandum (though I recognize that the prosecutor might not have had a lot of time to invest in his memorandum).

	[Eugene Volokh, October 31, 2008 at 6:17pm] Trackbacks First Amendment Precludes "Ethnic Intimidation" Prosecution for Letters to Columnist: I just got the text of an interesting and nearly unreported-on decision from an Ohio trial court. Michael Coon wrote three e-mails to Amjad Hussain, a Muslim columnist for the Toledo Blade, who was apparently born in Pakistan. (Hussain is a heart surgeon at the University of Toledo, where he has worked for over 30 years.) The e-mails were insulting, ranting, and vitriolically hostile to Muslims and, at times, Middle Easterners. But as I read them, they did not contain any overt threats to Hussein. Nor did the prosecution's brief point to any specific supposed threats, though it often spoke of Coon's "motive to harass, abuse, and threaten Dr. Hussain." Nonetheless, Coon was prosecuted for telecommunications harassment, aggravated by its being ethnic intimidation. The prosecution seems to have at first argued that Coon violated 2917.21(A)(5) by communicating with Hussain after Hussain had told him to stop e-mailing him; but that line of reasoning was apparently dropped, seemingly because Hussain had never made such a demand personally (though apparently the Sheriff's Office did make such a demand, perhaps at Hussain's behest). The prosecution instead focused on 2917.21(B), which bars communicating with a person (via e-mail, phone, and the like) "with purpose to abuse, threaten, or harass another person." The judge rejected this theory, on the grounds that "although angry and intolerant, read in context, the intent established is one of political discourse," and the speech was thus "protected political speech." I think the courts should go further, and conclude that otherwise protected speech — i.e., speech that doesn't fit within an exception such as that for true threats, or for fighting words — can't be punished even if a judge or jury finds that the speaker had the "purpose to abuse ... or harass." (Note that this speech can't be fighting words because it wasn't face-to-face, and was thus extremely unlikely to lead to an immediate fight between the target and the speaker. The fighting words exception is generally limited to such speech, because the justification of the exception is preventing such fights.) But at least the judge reached the right result, and perhaps this was the best the judge could do given the posture of the case. I should add that I think a statute that generally lets people demand that others stop e-mailing them (perhaps with some exception for situations where the e-mail is necessary for some sorts of business or government service purposes), and punishes those who continue e-mailing after the demand is received, would indeed be constitutional. It would be much like the statute upheld as to traditional mail in Rowan v. U.S. Post Office Dep't (1970). And it would be justifiable because it would leave the writer free to correspond all he wants with willing or potentially willing readers, and only block communications to people who have clearly expressed their lack of interest in the writer's messages. It would also avoid (if properly drafted) courts deciding whether the speaker's intent was really "to abuse ... or harass" (both vague terms rife with the possibility of viewpoint discrimination in application) or to engage in "political discourse." But the state's theory in this case was indeed focused on the statute barring abusive/harassing messages, and I'm glad that the court rejected that theory. I should add, by the way, that in my view the defense memorandum in this case struck me as much better written and argued than the prosecution memorandum (though I recognize that the prosecutor might not have had a lot of time to invest in his memorandum).