COA hears free speech Facebook post case involving police threats

Arguments concerning a mother’s free speech rights on Facebook after she was convicted for harassing a police officer opened discussion about the uncharted waters of social media in court before an Indiana appeals court Wednesday.

Indiana Court of Appeals judges Patricia Riley, L. Mark Bailey and Rudolph Pyle III heard oral arguments Wednesday in the case of Constance J. McGuire v. State of Indiana, 18A-CR-2554. Constance McGuire ran into trouble with the law after making a post on her private Facebook account that accused Kokomo Police Department officer Jeramie Dodd of killing her son.

McGuire’s son died after consuming methamphetamine during a traffic stop in which Dodd was involved. Upon her son’s death, McGuire made the social media post that included several threats against Dodd and other member of the KPD, saying they “better watch out” and that “this mother is on a rampage and ready to shoot and kill.”

The message also made pointed comments toward Dodd, stating that he should have killed his own son instead of her’s and that the KPD “messed with the wrong kid this time.” After the post was reported to law enforcement, McGuire was charged and later convicted of Class B misdemeanor harassment under Indiana Code Section 35-45-2-2(a)(4)(B). McGuire has also filed a wrongful death lawsuit against Dodd and other KPD members for failing to monitor him when he overdosed, as reported by the Kokomo Tribune.

Representing McGuire in an appeal of her conviction was Kokomo attorney Derick Steele, who challenged the sufficiency of evidence supporting her conviction. The posts, Steele argued, were legitimate free speech and her conviction was unconstitutional in view of protections afforded to speech and free expression under the First Amendment to the United States Constitution and Article 1, Section 9 of the Indiana Constitution.

Steele first addressed the issue of transmission, and said he believes there is a difference between sending a message via phone or email, versus posting an electronic message on Facebook.

“When we get to the transmission issue, we have to address not only what is said — ‘Everyone share’ — but in the manner in which it is said,” Steele argued.

McGuire’s suggestion that her Facebook “friends” share the post with others, Steele contended, was not with the subjective expectation that it would reach Dodd’s attention, but rather so that the community would be alerted to what she considered as corruption within the KPD.

The panel questioned that reasoning when compared to McGuire’s statement that Dodd should “go kill himself,” asking whether she did want the message to reach him.

Steele disagreed, pointing the panel back to the context of the underlying issue that prompted her post in the first place. The post frequently refers to Dodd in the third person, Steele added, and McGuire later said in her post that “there is no threaten here.”

“What she’s doing is putting Jeramie Dodd on notice that he’s wronged her in his official capacity as a police officer,” Steele said. “She’s filed a lawsuit and she’s putting everyone on notice that this is a problem that she’s not going to stand by and let happen continually.

“I do not believe it rises to the level of a transmission of the subjective intent that it reached Officer Dodd,” he added.

Additionally, Steele offered that the legislature might have “dropped the ball” on the issue of defining indecent, as opposed to “profane” or “obscene.”

“I have no problem with anyone finding Ms. McGuire’s speech to be distasteful and that which they would not want to hear, but it was her private Facebook page,” he said.

But, Judge Pyle questioned, what if McGuire’s statements that Dodd should be killed were carried out to fruition?

“Why can’t the state use this statute to say, ‘Hold on a minute, you’re calling for the death of a law enforcement officer?’” Pyle asked.

McGuire’s counsel defended that her statement to “share” the post was similar to the effects of political speech in the free marketplace of ideas, which he added, are “vital the development of our democracy.”

Arguing on behalf of the state, Supervising Deputy Attorney General Ian McLean said McGuire’s statements of being a “mother … on a rampage and ready to shoot to kill” were death threats, not serious political discourse.

“These are repeated death threats to Jeramie Dodd, his child, his entire family, the Kokomo police department, and so forth. Under no exception of the First Amendment is that acceptable, Article 1, Section 9 (of the Indiana Constitution),” McLean said. The state also argued in briefs that even if McGuire’s Facebook account was private, her posts could be seen by her many Facebook friends and others.

The context, he added, made it very clear that McGuire’s words were a serious threat to Dodd. McLean added that McGuire’s statements that Dodd should kill himself were “exactly analogous” to telling him face to face while holding an AK-47.

“If it was that serious, they surely would not have been concerned with giving her a warning,” Pyle said. “…They would have come at her with everything they had.”

Steele argued that McGuire’s statement that she was ready to “shoot and kill” and that everyone “better watch out” was a political hyperbole taken in context of the situation.

“You have to take into account the manner in which it’s said and how it’s said,” Steele said. “So, in this case, it was said on a private Facebook page. The courts have acknowledged that social media is a new animal. It’s been around for a while, but the courts are still dealing with it in its infancy.”

The full argument can be viewed here.