[Eugene Volokh] Mother Convicted of "Unlawful Posting of a Message" for Website Sharply Criticizing Woman Who Accused Mother's Son of Rape

From People v. Dingee, decided Friday by Michigan Court of Appeals Chief Justice Michael Gadola and Justices Kirsten Frank Kelly and Robert Redford:

This case has its origins with two young adults—SK [defendant's son] and the victim—who were close friends in high school and for a time after high school…. In June 2020, the victim confronted SK at [a] party and loudly and repeatedly yelled that he had raped her [at an earlier party]. According to SK, a crowd of people chased him back to his friend's car, and his friend drove him away. Approximately two months later, a former girlfriend contacted SK and arranged to meet with him at night in a secluded park. The former girlfriend allegedly lured SK to the park so that a group could ambush him. At this arranged meeting, SK was attacked. Defendant blamed the victim for the attack on her son, even though there was no evidence that the victim planned, encouraged, or participated in it.

Defendant created a website, titled "[Redacted by court]Lies.com," through which she accused the victim of lying. On that website, defendant attacked the victim's reputation and posted images of the victim that included details that would allow others to identify the victim's social media accounts.

Defendant also posted what she deemed to be evidence that the victim fabricated her claim against SK. Defendant asserted that the victim was responsible for the attack on her son and posted images of his injuries. In addition to the website, defendant posted numerous messages and comments on Facebook targeting the victim and referring people to the website she had created. She also eventually made TikTok videos about the victim.

After the victim began receiving numerous threats and comments from third parties on her social media accounts, the victim was forced to close the accounts. She testified that she also quit school and work, and she moved back home for her own safety.

Dingee was convicted for violating the "unlawful posting" statute, MCL 750.411s, which reads, in relevant part:

(1) A person shall not post a message through the use of any medium of communication … without the victim's consent, if all of the following apply:

(a) The person knows or has reason to know that posting the message could cause 2 or more separate noncontinuous acts of unconsented contact [by third parties] with the victim.

(b) Posting the message is intended to cause conduct that would make the victim feel terrorized, frightened, intimidated, threatened, harassed, or molested.

(c) Conduct arising from posting the message would cause a reasonable person to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

(d) Conduct arising from posting the message causes the victim to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested….

The court upheld the conviction, reasoning that such speech was punishable as "speech integral to criminal conduct." The court acknowledged that, under People v. Burkman (Mich. 2024),

[T]he speech-integral-to-criminal-conduct exception cannot be triggered just by speech itself being a violation of a law, even a law that bans conduct as well as speech. Instead, for the exception to apply, the speech must be integral to some conduct or scheme that is illegal in nature and independent of the speech that might be used to facilitate or accomplish the conduct or scheme.

Yet despite that, the court concluded that this exception justifies punishing the speech when it's about a private figure and deals with what the court views as a matter of private concern (or a "private vendetta"):

The speech-integral-to-criminal-conduct exception generally applies to stalking and cyberstalking statutes, and, on that basis, this Court has rejected First Amendment challenges to those statutes, stating that "posting a message in violation of MCL 750.411s would not constitute protected speech because the message is integral to the harassment of the victim insofar as it leads to, and is intended to cause, unconsented contacts that terrorize, frighten, intimidate, threaten, harass, or molest the victim." Buchanan v. Crisler (Mich. App. 2018).

Although the speech-integral-to-criminal-conduct exception may properly apply to the messages prohibited under MCL 750.411s, this Court has nevertheless limited the application of that exception, which must be examined on a case-by-case basis. The exception does not apply if the person posted his or her message about a public figure and on a matter of public concern, because the First Amendment affords the highest protection for speech about public figures on matters of public concern. Buchanan. [Later in the opinion, the court phrases this rule as being that "MCL 750.411s(1) cannot be used to criminalize a message that targets a public figure or addresses a matter of public concern" (emphasis added), which Buchanan also at times mentions as the rule. -EV]

The trial court correctly determined that defendant's posts about the victim, which she posted on Facebook and her website, did not involve protected speech. Although there was evidence that defendant was angry about the handling of her son's assault case by the prosecutor and the police department, she did not create the website about the prosecutor or the police department—she created a website about the victim. The images and commentary posted on that website demonstrate that the purpose of the website was to demean and disparage the victim. There was nothing on the website that suggested that the goal of the website was to discuss, or bring to light, deficiencies in the police department or with the prosecutor's office, which only tangentially involved the victim. To the extent that defendant mentioned the prosecutor and police departments, she did so in the context of attempting to solicit aid in holding the victim to account for a purportedly false accusation against SK.

Defendant suggests that merely mentioning the prosecutor's office, the police department, or other persons who allegedly participated in the attack on her son in some social media posts was sufficient to invoke the protections of the First Amendment for all her comments and posts. We disagree. The context amply demonstrated that defendant focused her comments and posts on the victim as a private person over a private dispute, and any mention of public issues, public figures, or public entities within the posts directed at the victim was—at best—a "thinly veiled attempt to immunize a private harassment campaign as a matter of public concern." …

The victim was plainly not a public figure for purposes of the First Amendment and the evidence showed that defendant's comments were all about the victim or directed at the victim as a private person. To the extent that defendant made any comments about public figures—such as police officers or the prosecutor—the comments were tangential to her campaign to dehumanize and bully the victim, and the posts that defendant made about the victim did not relate to any "matter of political, social, or other concern to the community" and were not "a subject of legitimate news interest." Rather, defendant's posts were directed at the victim as a private person and as part of a private vendetta that defendant brought into public for personal reasons. Consequently, the trial court did not err when it determined that defendant was not entitled to an instruction concerning commentary on public figures or matters of public concern because the facts did not support such an instruction….

The evidence showed that defendant began her campaign by creating a website, through which she accused the victim of lying, and used her Facebook platform to direct followers and viewers to that website. On the website, defendant informed the viewer that she created the website because the victim refused to tell the truth about her "'rape,' about pretty much everything." Although defendant claimed that the website was not limited to discussing the victim, she made it clear that she was "done with pretty little liars making false allegations and ruining lives for sport." In the body of the website, defendant asserted that the victim's claims against SK were provably false, and she further claimed that the victim set in motion the vicious attack on SK that nearly caused his death. The content on the website demonstrates that defendant was focused on the victim and that her goal was to destroy the victim's credibility and to convince visitors to the site that the victim was responsible for the attack on SK.

A jury considering the evidence at trial could readily infer that defendant's goal was to get others to act to accost or harm the victim. Specifically, she wanted the victim's life to change "in a way that the darkness becomes scary in a very real way." Defendant makes much of the post in which she purportedly disclaimed the notion that she wanted to harm the victim; however, to the extent that defendant encouraged her followers not to threaten the victim, she nevertheless made it clear that she had no sympathy for anyone harmed by her posts….

In order to prove the charge at issue, the prosecutor had to prove that "[c]onduct arising from posting the message" both would cause a reasonable person "to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested" and did in fact cause the victim to feel those things. Viewing the evidence in the light most favorable to the prosecutor, there was substantial evidence to support the causal relationship. The victim read several messages that she received into the record at trial. One was from a student at a different high school, who confronted the victim in a post about "ruin[ing] that kid's life." Another messenger told the victim: "'You're what's wrong with society. They should have thrown you into the river and let you drown, whore.'" Examining these messages in the light most favorable to the prosecutor, a reasonable juror could infer from it that the sender had visited defendant's website and adopted her view that the victim was primarily responsible for what happened to SK….

For decisions holding that the "speech integral to criminal conduct" exception doesn't apply to such statutes (without regard to whether the speech was on matters of private concern or about private figures), see People v. Relerford (Ill. 2017), Matter of Welfare of A.J.B. (Minn. 2019), State v. Doyal (Tex. Crim. App. 2019), and State v. Shackelford (N.C. App. 2019). To quote A.J.B.,

The State argues that Minn. Stat. § 609.795, subd. 1(3), reaches only speech integral to criminal conduct because repeatedly delivering messages to the victim that the actor intends to cause the victim to feel abused, disturbed, or distressed is illegal in Minnesota. This argument, as noted above, is circular—the speech covered by the statute is integral to criminal conduct because the statute itself makes the conduct illegal. That is not the test for speech integral to criminal conduct.

For a decision rejecting the view that speech on matters of private concern can be restricted as "harassment," "stalking," and the like, see Bey v. Rasawehr (Ohio 2020), and State v. Tracy (Vt. 2015). I have written in more detail about these matters in Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases) and One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and "Cyberstalking".

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