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Free speech and the loudmouth

It's fair to say that Johnathan Fonte was a pain in the ass for Julia Ruane, an assistant dean at Cuyahoga Community College.  He'd been dismissed on academic grounds, then contacted her in February of 2012 about readmission.  He needed to start full-time in the spring semester to qualify for student aid, but it was the school's policy to limit students seeking readmission to two courses, and neither of the ones Fonte wanted to take were being offered in the spring.  Fonte yelled into the phone that she was a "freaking idiot," used profanity, and told her that if she didn't help him, he'd "make her sorry" or "make her pay" because he was a "mentally ill person."  He told her that he was going to call the governor, the president, the TV news, and a lawyer, and sue the college and her personally.

He didn't do any of those things.  And he didn't get into the spring semester.  Or go full time.  In fact, all the exchange accomplished was to get him convicted of menacing.

Yesterday, I talked about the 8th District's decision in Parma v. Fonte affirming his conviction.  His attorney had apparently found Fonte's persona no more appealing than did Dean Ruane, and the appeal centered on the court's refusal to remove the attorney after the latter candidly told the judge that he didn't like his client.  That didn't go far, but there are some other issues here that deserve discussion.

The menacing statute prohibits someone from putting another person in fear of bodily harm.  The victim's subjective belief is what controls.  Indeed, Fonte cites a number of cases where there wasn't sufficient evidence of a belief that the victim didn't feel threatened.  Early this year in State v. Beckwith (discussed here), for example, the court reversed a menacing conviction, finding that the victim's statements that Beckwith's actions caused her to feel "uncomfortable" didn't equate to a belief that she was going to suffer harm.

This brings up a problem the menacing statute:  the case law, for the most part, focuses solely on the victim's perception, but there's an intent element, too; the defendant must act "knowingly."   Did Fonte's raising his voice and using profanity indicate an intent to put Ruane in fear, especially given that the actual content of his comments was that he was going to contact various authorities and sue her and the school?  If I threaten to sue you in a loud voice, does your subjective belief that I'm really going to physically hurt you instead convert that into a menacing conviction?  Isn't there some limit to the "subjective" belief of the victim?  Obviously, there is:  the victim's subjective belief has to be objectively reasonable.

And let's go back to the "actual content" of what Fonte said.  Fonte argued that his conviction for menacing penalized his First Amendment rights, and that his lawyer was ineffective for not raising it.  The court decides that it wasn't worth raising, and its work here is problematic.  Actually, the work of other courts; the opinion relies wholly on the analysis supplied by cases from other districts.

The opinion on this score begins by asserting the "strong presumption in the constitutionality of statutes," and that "the party challenging a statute must prove that it is unconstitutional beyond a reasonable doubt."  But that skips over the initial question with constitutional challenges:  what standard is applied?  The "presumption of constitutionality" and the requirement of "proof beyond a reasonable doubt" that it is unconstitutional might be appropriate for rational basis review, but it's completely inappropriate for strict scrutiny, which is the standard to be applied when there's a constitutional right (or suspect classification) at issue. 

Fonte then disposes of the First Amendment claim by quoting three paragraphs from the 11th District's 2003 decision in State v. Friesenhengst.  The defendant in that case, like Fonte, apparently had some "anger issues":  upset by a parking ticket, he'd placed a package near a campus mail bin; it had no return address and was addressed in large black letters to the "bungling, bureaucratic, incompetent idiots at parking services."  This probably attracted more attention than it might have otherwise, had it not occurred only a few months after 9/11, and at the height of the anthrax scare:  a hubbub ensued, and the police were called.   They opened up the package and found a check for "10.00 and not a stinking cent made payable to the "Crummy Parking and Traffic" for payment of a KSU parking fine. Also, "stupid ass operation" was written in the memo portion of the check.  Subtlety was apparently not Freisenhengst's long suit.

The court gave short shrift to his argument that his conduct was protected by the First Amendment, holding that the menacing statute "is a criminal statute aimed at prohibiting harmful conduct rather than the expression of ideas or beliefs.  Appellant did not have a constitutionally protected right to knowingly cause two victims to believe that his suspicious package would cause physical harm."  But this is a tautology:  the defendant's constitutional rights aren't implicated because he doesn't have a constitutional right.  To be sure, there are any number of cases holding that an actual threat of personal harm isn't protected by the First Amendment, but that doesn't take the statute entirely out of a constitutional analysis, especially here:  it seems plausible that Freisenhengst's intent was to express his frustration with bureaucracy, not to place anyone in fear.  The problem was timing, but frankly, a conviction of Friesenhengst for causing a panic might have been more appropriate than one for menacing. 

And this brings us back to the subjective belief of the victim, and Fonte.  There wasn't a whole lot to go on here, as far as the State's case is concerned:  Juane hadn't been the one to call the campus security -- it was her co-worker, who overheard the conversation, which was on Juane's speakerphone.  The best the prosecutor could summon from Juane was that she notified her local police department of the incident, and had "few sleepless nights" and was still "just a little nervous about things."  One might argue that it was the subjective beliefs of the co-worker and the police department which served as the basis for Fonte's conviction.

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