The First Amendment and Consumer Criticism

Eugene Volokh is the Gary T. Schwartz Distinguished Professor of Law at UCLA School of Law, where he teaches and writes about First Amendment law. He also directs the UCLA First Amendment Amicus Brief Clinic, which has filed briefs in over 100 cases throughout the country. Here, Professor Volokh confronts attempts to outlaw criticism as supposed “harassment” or “cyberstalking.”

Professor Volokh,…Your Witness

Gina Criscione is being prosecuted under Ohio law for “telecommunications harassment” and “menacing by stalking.”

Her crime? Posting sharp criticism of a retirement community at which her mother lived shortly before her death. Criscione particularly singled out a manager at the community: According to the harassment complaint, Criscione “did knowingly post several text and video/audio messages to a social media website with the purpose to harass and annoy” the manager. She also picketed outside the community (and apparently once drove on the grounds of the retirement community, likely in the parking lot).

The case is an excellent illustration of how vague terms—“harassment” and “stalking”—can grow into broad, and unconstitutional, speech restrictions. Historically, “stalking” has referred to following people in a way that threatens them with violence, which is constitutionally unprotected conduct (and often not even accompanied by speech). Criminal “harassment” has historically referred to telephone harassment, which involves unwanted speech to a person; that too is constitutionally unprotected: As the Supreme Court held in 1970, “no one has a right to press even ‘good’ ideas on an unwilling recipient.”[i]

But in many states, “harassment” and “stalking” statutes have also evolved to punish unwanted speech not just to a person, but to the public about the person. Thus, for instance, in Ohio,

  • The telecommunications harassment statute bars knowingly posting anything “on an internet … web page for the purpose of abusing, threatening, or harassing another person”—criminalizing any online statement that is seen as being ill-intentioned.[ii]
  • The menacing by stalking statute bars people from making multiple posts online if they know that their pattern of conduct would cause another “mental distress.”[iii]

In my view, that can’t be constitutional, because public criticism is protected by the First Amendment, even when it’s distressing and even when it’s perceived as ill-intentioned. Some narrow categories of speech, such as defamation (false factual claims that damage reputation) and true threats of violence, are excluded from First Amendment protection. But these statutes go far beyond those narrow categories.

Under both of these statutes, public posts criticizing government officials or other important figures could be criminally punished. For example, the statutes encompass harsh ridicule or parody of public figures, which are clearly protected forms of expression.[iv] Likewise, as the Criscione case shows, the statutes cover consumer criticism of businesses that hold people’s lives in their hands.

And the statutes encompass a wide range of everyday speech as well. Imagine a woman breaks up with an unfaithful boyfriend, and repeatedly posts on her Facebook page her real feelings about him. A prosecutor could conclude that the woman posted her Facebook message intending to “abuse” her ex-boyfriend or cause him “mental distress.” Yet such speech about the details of one’s daily life is constitutionally protected. As the Supreme Court has held, even “[w]holly neutral futilities” that lack political, artistic, or similar value are “still sheltered from government regulation.”[v]

Nor can such statutes be saved by being limited to speech said “for the purpose of abusing … or harassing another person” (a requirement present in the telecommunications harassment statute but absent in the menacing by stalking statute). As the Supreme Court has held, a “speaker’s motivation” for expressing her opinion or conveying true statements of fact is generally “entirely irrelevant to the question of constitutional protection.”[vi]

Speech is valuable to public and private discussions regardless of its motives; and restricting speech based on its bad motive risks chilling even well-motivated speech. “No reasonable speaker would choose to [speak] if its only defense to a criminal prosecution would be that its motives were pure. An intent-based standard blankets with uncertainty whatever may be said, and offers no security for free discussion.” “First Amendment freedoms need breathing space to survive,” and “[a]n intent test provides none.” [vii]

Likewise, the menacing-by-stalking statute cannot be saved by the requirement that the speech “knowingly causes mental distress to its subject.”  For example, the following constitutional communications would be potentially encompassed by the statute (if said more than once, so they are a “course of conduct”):

  • Accurately publicly accusing someone of committing a crime.
  • Accurately publicly accusing someone of sexual harassment.
  • Accurately informing friends, for instance on a Facebook page, that one’s spouse has been unfaithful, if it knowingly causes mental distress to the spouse.
  • Accurately informing fellow community members that someone is refusing to comply with a popular boycott, or with a strike, and may thus be seen by some as a traitor to one’s community.

Moreover, the mental distress would be magnified if the accusations come in online newspaper columns or in other publications with a large circulation. Unlike the tele­communications harassment statute, the menacing by stalking statute has no exception for professional journalists.

For these reasons, courts in Illinois, New Jersey, New York, North Carolina, and Ohio have recently struck down such overbroad criminal prohibitions; and many state legislatures have carefully framed their laws to be considerably narrower than the Ohio law. Some law professors and I have filed a friend-of-the-court brief asking the Ohio court in the Criscione case to hold the Ohio law unconstitutional as well.[viii]

Free speech means people are entitled to say even offensive things about us; calling the speech “harassment,” “cyber-stalking,” or “bullying” doesn’t strip it of constitutional protection. If the speech includes true threats of violence, it can be criminally punished. If it contains false allegations, it could lead to a defamation lawsuit (or even a prosecution, in about a dozen states that still have criminal libel laws). And telephone harassment laws, plus similar laws that can apply to mail or e-mail, let people stop others from unwanted speech to them. But people can’t have the legal power to stop others from talking about them.

  • [i] Hill v. Colorado, 530 U.S. 703 (2000)(internal citations omitted)
  • [ii] O.R.C. 2917.21(B)(2).
  • [iii] O.R.C. 2903.211(A)(1).
  • [iv] Hustler Magazine, Inc., v. Falwell, 485 U.S, 46 (1988).
  • [v] United States v. Stevens, 559 U.S. 460 (2010).
  • [vi] Federal Election Comm’n v. Wisconsin Right to Life, 551 U.S. 449 (2007).
  • [vii] Id. These quotes are from the lead opinion, but the concurrence took a similar view; the lead opinion plus the concurrence added up to a majority of the Court.
  • [viii] Disclosure: David F. Forte and Kevin O’Neill, co-editors of the Your Witness forum, are participants in the brief.