I was delighted to sign on to this brief in State v. McMenamy (Mo. Ct. App.) just filed by the ACLU of Missouri Foundation and the Wash. U (St. Louis) First Amendment Clinic, on behalf the ACLU of Missouri and Profs. Jane Bambauer and Lyrissa Lidsky and me.
asserted
I → sign → Missouri
The Introduction:
The First Amendment and article I, § 8 of the Missouri Constitution broadly protect the right to speak to the public about other people.
asserted
Amendment → protect → people
This is true even when the speech "is intended to trouble or annoy, or to make another timid or fearful."
asserted
another → intend → ?
And it is true even when speech uses "social pressure and the 'threat' of social ostracism … to embarrass others or coerce them into action."
asserted
speech → use → action
While individuals who are the subjects of unwanted speech may be able to limit some speech directed to them, they cannot limit offensive speech about them directed to others.
uncertain
they → limit → others
Contrary to this established law, Matthew McMenamy was convicted and sentenced to 10 years in prison for openly and vigorously criticizing a local police detective he believed had engaged in misconduct.
asserted
he → establish → misconduct
Mr. McMenamy used his public social media accounts and publicly distributed flyers to attempt to draw the community's attention to the detective's actions.
asserted
McMenamy → use → actions
He expressed his hope that his revelations would result in the officer's removal.
asserted
revelations → express → removal
While Mr. McMenamy's speech was certainly concerning to the detective, the circuit court did not make any finding that either the flyers or any one of the dozens of social media posts submitted as evidence fell within any category of unprotected speech, such as true threats.
asserted
flyers → concern → threats
Nor could the circuit court have done so, as none of Mr. McMenamy's speech was outside the bounds of the First Amendment's protection.
uncertain
none → do → protection
His convictions for harassment and stalking violate the First Amendment and should be reversed.
asserted
convictions → violate → Amendment
The opening paragraph of the section on the facts (for the full discussion of the facts, read the brief):
In August 2023, Matthew McMenamy began posting on social media about what he viewed as misconduct and racism by a local police detective, who years before had been involved in Mr. McMenamy's involuntary commitment.
asserted
who → read → commitment
Mr. McMenamy sought to publicize one of the detective's public Facebook posts, where the detective wrote: "If black lives matter then why are they shooting and killing each other at an alarming rate."
asserted
they → seek → rate
State's Ex. 60B ("Let's make this racist post go viral … #BLM #RacistCop ….); State's Ex. 60A ("The people want answers.
asserted
people → let → answers
Does he feel that people of color do not matter because of an idea that they murder each other at an alarming rate?").
asserted
they → feel → rate
Many of Mr. McMenamy's posts were aimed at sharing with the public his concerns about the detective's fitness for his position.
asserted
Many → aim → position
For example, Mr. McMenamy posted he was "in talks with a billboard company to put [detective's] racist quotes up next to a picture of him in uniform" because "[s]omeone like that shouldn't be a detective, an election [sic] official, or let alone anything near public service."
asserted
s]omeone → post → service
Mr. McMenamy's posts also described his feelings about his prior involuntary commitment and thoughts about hurting his parents before getting help.
asserted
posts → describe → help
See State's Ex. 60E (Mr. McMenamy's post that he "had a bad day last Sunday … I still need time to heal but … I am going to counseling and I will be looking for support groups").
asserted
I → see → groups
And the opening material in the legal argument (again, read the brief for much more):
All of Mr. McMenamy's social media posts and his distribution of flyers were protected by the First Amendment.
asserted
All → read → Amendment
Harassment and stalking laws may, in some circumstances, be constitutionally applied to protect unwilling listeners from unwanted, one-to-one speech directed to that listener.
uncertain
laws → apply → listener
The government's power to protect an unwilling listener from speech about them directed to the public, on the other hand, is sharply limited, even when that speech is annoying, offensive, or alarming.
asserted
speech → protect → hand
Unless such speech falls within one of the narrow, historically recognized categories of speech that the U.S. Supreme Court has held may be regulated without violating the First Amendment, such as "true threats," it is presumptively protected.
uncertain
it → fall → threats
Here, Mr. McMenamy spoke to the public, and his speech did not fall within any unprotected category.
asserted
speech → speak → category
This Court should reverse Mr. McMenamy's convictions.
asserted
Court → reverse → convictions
Even if this Court does not find that all Mr. McMenamy's speech is protected from criminal prosecution by the First Amendment, he is at least entitled to a new trial.
asserted
he → find → trial
The circuit court allowed the State to present evidence of more than four months' worth of social media posts to the jury and then instructed the jury it could find Mr. McMenamy guilty based on unidentified "alarming content" in these posts.
uncertain
McMenamy → allow → posts
This means a juror could have convicted Mr. McMenamy based on speech protected by the First Amendment.
uncertain
juror → mean → Amendment
[I.] The State's prosecution of Mr. McMenamy for harassment and stalking based on unwanted speech about individuals directed to the public violates the First Amendment.
asserted
prosecution → base → Amendment
Speech directed to the public at large is presumptively protected unless it falls into one of the narrow, historic exceptions to the First Amendment.
asserted
it → direct → Amendment
This is because even if some listeners are likely to be offended, others may be willing listeners who find the speech valuable.
uncertain
speech → offend → ?
For this reason, while harassment and stalking statutes may, in some instances, be constitutionally applied to repeated unwanted communications to an individual, they cannot be constitutionally applied to communications to the public about an individual.
uncertain
they → apply → individual
[A.] Stalking and harassment statutes were originally intended to limit unwanted communications directed to a specificperson.
asserted
statutes → intend → specificperson
For decades, laws have "restricted certain kinds of unwanted speech said to a particular person."
asserted
laws → restrict → person
For example, state and federal criminal harassment statutes were enacted to prohibit unwanted telephone calls to a particular person.
asserted
statutes → enact → person
Similarly, the federal government and some states have banned certain unwanted mailings into the home.
asserted
government → ban → home
These laws reflect an intention to protect individuals from repeated, unwanted communications to them, particularly in the home.
asserted
laws → reflect → home
More recently, states enacted stalking laws to proscribe behaviors such as physically following, surveilling, or engaging in repeated unwanted personal contacts with a particular person.
asserted
states → enact → person
Courts have relied on stalking laws or restraining order laws to ban repeated or annoying letters, phone calls, or personal contact from a particular person.
asserted
Courts → rely → person
While some of these laws have been struck down in some states, "they have generally been upheld by lower courts; and the U.S. Supreme Court has upheld the federal ban on repeated unwanted mailings.
asserted
Court → strike → mailings
…and 29 more, not listed.
The Aporia