The Superior Court of Pennsylvania issued an opinion earlier this month in the matter of Commonwealth v. Cox. The issue was “whether comments made in an on-line forum can constitute a criminal offense.” Here’s what happened:
Cox’s conviction arose from an incident in which she posted the following comment on her Facebook page: “[Victim] has herpes. Ew, that’s gross. She should stop spreading her legs like her mother.” At the time of this incident, Cox was 18 years old and Victim was 15 years old. Cox posted this comment the day before Victim’s first day of 10th grade, and the internet posting received comments and “likes” from multiple people. Victim and her mother reported this posting to the police, who subsequently filed charges against Cox. Cox was convicted of harassment following a jury trial, and she was sentenced to six months of probation.
For this appeal, Cox argues that there was insufficient evidence to support her conviction. So, the Superior Court looks to the state statute under which she was convicted. It provides that:
“A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person: … (4) communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures[.]” 18 Pa.C.S.A. § 2709(a)(4).
In her defense, Cox argues that “[t]he Commonwealth and society should have no interest in criminally vindicating this matter. [Her] actions were wrong but not criminal.” She also claims that “her own interpersonal issues and trouble dealing with changes in her familial relationships caused her to unwisely “[take] the matter out on [Victim].”” The court is unmoved, though, referring to Cox’s “misuse of the internet and social media”, quickly affirming the conviction. From excerpts of the trial court’s opinion, it looks like the victim’s age was a big factor – it’s mentioned several times.
Other commentators have observed that this is a problematic verdict – Professor Eric Goldman calls it “a ridiculous conviction”, and on the same page, Venkat Balasubramani writes:
Here we’re talking about a single statement that was posted and then taken down. There’s no way this would constitute harassment and be unprotected on this basis. Nor is it threatening. It’s simply annoying, and that’s still protected speech.
…[T]o impose criminal liability based on this speech. That should not have gotten past a basic gut check, much less core First Amendment principles. (Needless to say, the fact that this prosecution was brought and a conviction obtained illustrates the—hopelessly problematic—breadth of the statute.)