Stalking Conviction For Friending a Prosecutor’s Facebook Friends?–State v. Moller

Online stalking and threats are hot topics today, especially in light of the Supreme Court granting cert in US v. Elonis (we plan to recap that case before oral arguments).

Today’s case highlights the grey area between veiled threats and invasion of privacy on the one hand, and legitimate criticism of a public official on the other. Moller, the defendant, was unhappy that his wife, a day-care provider, was convicted of child abuse. K.C. prosecuted the case. Several months after the trial ended, K.C. learned that “images relating to [her] were appearing on multiple websites.” She checked out the sites and was shocked at the quantity and subject matter:

[the earlier posts] seemed to be an attack on me . . . but it began to develop and grow more specific. . . . . There seemed to be an ongoing increasing focus on me and my family and my children. And – and this intense scrutiny went from my professional life to my personal life to my family.

Specifically, defendant’s posts included:

- a photo of K.C.’s house that was taken by the defendant or someone on his behalf, a fact supported by data from a GPS tracker attached to defendant’s vehicle

- images of a Barbie doll wearing a low-cut shirt in a court room (a barrette in the doll’s hair had K.C.’s husband’s name, and K.C.’s son’s name was tattooed above the doll’s left breast)

- a booking photo of the Barbie doll, “who appears to have a black eye”, holding a sign with K.C.’s name and birth date and the words “solicitation” and “Dane County Jail” (file name: [K.C.]Mug2.jpg)

- a Barbie doll with her hands down the pants of a shirtless male Barbie doll, with text saying “Dane County, Wisconsin—Assistant D.A. [K.C.] working Her, quote, job?” (file name: Hooker D.A. [K.C.].jpg)

- a still photo of K.C. taken from a live interview; superimposed on this image is a white mask with a five-pointed star on its forehead (superimposed inside the mask is [K.C.]’s daughter’s face)

- a photo of K.C. and her daughter

- a photo of K.C.’s daughter, manipulated to appear as if the daughter was shaken to the point of abuse

- the same photo of K.C.’s daughter, posted above an article about a baby who was “shaken so hard his brain swelled, wiping out his cognitive functioning and severely disabling him”

- photograph of K.C.’s daughter with the file name “abused child.jpg”

K.C. testified that she did not post the photo of her home to the Internet, and she estimated that this photo was taken a few months following the trial, around the time the photos started appearing on Moller’s sites. She also testified that two of the photographs from Moller’s sites must have come from her Facebook page. She recalled posting the photos there. While she endeavored to set her Facebook account’s privacy settings to “as private as possible,” two of her cousins appeared to be Facebook friends with Moller, around the time her Facebook photos made their way to Moller’s websites.

Separately, a co-worker testified that he saw Moller in court, observing K.C., while she prosecuted another child abuse case.

Moller admitted he maintained the sites out of anger. He also said he felt his wife was “unfairly targeted.”

A jury convicted Moller of stalking, which in Wisconsin requires: (1) a course of conduct directed at a person; (2) that would cause a reasonable person to suffer “serious emotional distress”; (3) which in fact causes such distress; and (4) where the defendant knew or should have known the distress would result. “Course of conduct” has a statutory definition, which includes two or more acts from a statutory list which includes things such as repeated phone calls, physical proximity, appearing at the victim’s home or workplace, etc. One of the possible ways to satisfy a “course of conduct” is by “sending material . . . to the victim or, for the purpose of obtaining information about, disseminating information about, or communicating with the victim, to a member of the victim’s family or household or an employer, coworker, of friend of the victim.”

Moller challenged the conviction based on sufficiency of the evidence. The court says that the state presented adequate evidence of a “course of conduct”: (1) Moller appeared at K.C.’s workplace (when he observed her in court); (2) Moller sent material to a member of K.C.’s family “for the purpose of obtaining information about or disseminating information about K.C.” (the Facebook infiltration via her cousins’ accounts); and (3) Moller appeared at K.C.’s home (in the course of taking the photo he posted). When viewed in the light most favorable to the state, the court says the evidence is adequate. Moller also argued that the jury instruction, which defined course of conduct to include statutorily specified acts or “similar acts”, was improper. The court applies a harmless error standard and says that the jury would have convicted anyway, if given the proper instruction.

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Is this a privacy case or a threat case?: Where to begin? Is this really a case about threats, or an invasion of privacy, or one where an invasion of privacy evolved into a threat? K.C. testified that she felt threatened, but it appears that what really disturbed her is Moller’s ability to gather personal information about her, and shift the focus of his commentary from the professional to the personal and family. Some of the images had a threatening overtone (the black eye, and the five pointed star on the mask), but the court does not delve into this, or cite any testimony from K.C. to the effect that she felt particularly threatened by these photos. Again, what seemed to disturb K.C. is that Moller was able to access images of her and her family in the first place. Moller’s targeting of her children is completely unacceptable. However, he was complaining about K.C.’s conduct in a child abuse case, and his post seemed to say that K.C. was a child abuser (as opposed to being any sort of threat from him to K.C.’s kids, or to K.C.). There is an argument, perhaps a slim one, that Moller’s references to K.C.’s family were not gratuitous.

Should K.C. be given special protection?: It’s temping to say that, as a public official, K.C. deserves special protection from threats, so we should take anything that remotely smacks of a threat against her that much more seriously. This is especially true of prosecutors, who are subject to defendant intimidation by nature of their job, so they ought to get an extra zone of protection. On the other hand, prosecutors wield significant power in the form of prosecutorial discretion, so their choices should subject to more thorough public scrutiny and criticism.

It’s easy to see how any extra zone of protection would have a chilling effect on people who wish to criticize public officials. Moller should be able to complain that the prosecution of his wife was improper, and he should be able to criticize the prosecutor in the process. In the context of a defamation claim, the First Amendment grants public officials less (not more) protection. See, e.g., Garrison v. Louisiana, 379 U.S. 64, 77 1964 (“The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants.”). From a privacy standpoint, courts have also been skeptical of efforts to grant the personal information of public officials special protections (see, e.g., Sheehan v. Gregoire), and here, it does not appear that Moller publicly disseminated any truly private information. While it may make sense to grant them an extra zone of protection vis-a-vis threats, public officials understandably have less protection when it comes to privacy and criticism.

What exactly is the conduct here?: So, what exactly is the course of conduct at issue, apart from disseminating content, which is protected unless it falls within one of several narrow exceptions? Moller posted a photo of K.C.’s house, observed her in the courtroom, and obtained pictures of her through her Facebook friends. The fact he drove by K.C.’s house and took a photo is somewhat disconcerting, but it’s likely a similar picture of K.C.’s house is online, whether through Google Earth, real estate websites, or county property records. Her address is probably a matter of public record as well. Should the fact that Moller drove past K.C.’s house really tip the balance? The idea that Moller engaged in a course of conduct by observing K.C. in a courtroom is similarly unsatisfactory. Courtrooms are public spaces, and Moller obviously has a right to observe the proceedings. Perhaps he can be kicked out the courtroom is extreme circumstances, but the record does not mention anything supporting this.

The secondhand Facebook stalking is the most interesting. K.C. understandably is equivocal about her privacy settings and the effect of these settings on whether a stranger can access her content. The real explanation is the obvious and simple one: Moller befriended one of K.C.’s friends (in this case, her cousins) and obtained access to K.C.’s Facebook’s feed through them. Colloquially known as “Facebook stalking,” this happens every single day for both banal and malevolent reasons. I’m pretty sure we do not want stalking statutes to cover this activity standing alone. I’m also not sure what the legislature intended with its garbled language in 940.32(1)(a)(7), but I don’t see a great fit.

Liability for emotional distress to public officials?: The statute targets serious emotional distress, something that can probably targeted in certain narrow circumstances. Interestingly, it does not contain an intent requirement. All that’s necessary is for Moller to knew or have known that one of his acts would result in serious emotional distress. This raises some possible First Amendment problems. But even with an intent standard, liability for causing emotional distress is incompatible with the First Amendment when the conduct consists of speech directed at a public figure. I don’t think the result should be different if we’re talking about public official.

Of course, an implicit assumption made by the court here is that this case is about conduct and not speech. But this case, like Osinger, a revenge porn case I blogged about recently, relies on a conduct/speech distinction that feels circular, or vague at best. The court also does not do a good job of evaluating the different acts on their own or asking whether they are protected or actionable. Without explicitly staying it, the court seems to take a totality-of-facts approach. (Compare the result here with State v. Brewington, another recent case involving criticism of a public official following a custody dispute.)

Was this one-to-one speech?: Going beyond the course-of-conduct issue, another thing that’s worth flagging is that Moller never contacted K.C. directly. He wasn’t pinging her on social media or making her aware of his posts in any way. (Cf. US. v. Cassidy.) K.C.’s co-worker alerted her. Sure, you could make the argument that she probably would have come across his posts, but this is not one-to-one speech, and for this reason presents tough facts for a legitimate stalking charge.

Are “photos different”?: Perhaps one explanation here is that “photos are different”. A useful thought exercise is to imagine how this would have played out if Moller had not used any photos but merely had written blog posts voicing his criticism. I think a much tougher case, perhaps even a clear defense win. If K.C.’s key complaint is that her Facebook photos were obtained, doctored, and disseminated by Moller, it’s questionable as to whether that should be criminally actionable under a stalking statute. Virtually all of us have photos of us and our families online. Tracking these photos down and using them to criticize someone—in the public eye—should not be criminal activity, much less subject one to civil liability. (See, for example, a case Eric just blogged about, where a court said using a photo in the course of criticizing a public figure was fair use for copyright purposes: “Griping Blogger Can Show Photo Of Griping Target–Katz v. Chevaldina“.)

(Interestingly, the presiding judge must not have thought the conduct was that egregious. He or she sentenced Moller to probation.)

Overall, I don’t like Moller’s speech and targeting of K.C.’s family, but I also don’t see a great fit with the statutory elements. There are also looming First Amendment issues that the opinion does not satisfactorily address. Moller engaged in arguably ambiguous acts—he drove by K.C.’s house; he observed K.C. in court; he Facebook stalked K.C.’s friends. Nothing he did was threatening and he was not subject to a court order, or even a request that he cease the conduct. I don’t see anything that crosses a clear line. Perhaps this ruling will get revisited on further appeal. It should.

[I did a quick search to see how stalking/privacy claims involving public officials have played out in cases. None of the cases were particularly on point. There are a smattering of cases, some of which say that liability for emotional distress can only be premised on false statements made with actual malice, and a few other cases say that as long as liability is premised on conduct, this is OK. US v. Cassidy, involving the federal anti-stalking statute contains a good discussion of the First Amendment issues at play, although it involved a public figure.]

Added: a loosely related post at Techdirt here: “Legislators In North Carolina Want To Let Law Enforcement Hide Personal Info From Public Records“. Also, comments from Rebecca Tushnet:

My reaction is completely the opposite, and I think it is likely influenced by gender. My guess is that the vast majority of female professionals would feel physically threatened by a drive-by of their houses in combination with this other conduct, including the symbolic violence against the doll. (Abusers often engage in symbolic violence first. It is a very good way of communicating “I could hurt you.”) I know I would fear for my physical safety and that of my children. The reasonable person is allowed to be a woman, it seems to me. And I don’t think dissecting each incident and saying “this one wasn’t enough on its own” makes sense. The point of having a course of conduct offense is that each act adds up. I can’t see how the First Amendment precludes that, especially given the silencing effects on women of *not* prosecuting such conduct.

Case citation: State v. Moller, No. 2013AP2147-CR (Wisc. Ct. App. June 26, 2014)

Related posts:

Police Officers Aren’t Liable For Investigating Cyberstalking and Revenge Porn–Keaton v. Hannum

Conviction for Cyberstalking & Revenge Porn Survives First Amendment Challenge

Contacting a Person’s Facebook Friends Isn’t Stalking–People v. Welte

Dead Sea Scrolls Impersonation Case Convictions Partially Affirmed

Ill-Advised Student YouTube Video Leads to Conviction For Misusing Computerized Communication System–In re Kaleb K.

California’s New Law Shows It’s Not Easy To Regulate Revenge Porn (Forbes Cross-Post)

Facebook Posting That Someone Has Herpes Is Criminal Harassment–Pennsylvania v. Cox

Court Denies Restraining Order Against Ex-Boyfriend Who Threatened to Post Revenge Porn — EC v. CBT

New Jersey Appeals Court Reverses Anti-Harassment Order Based on Emails – E.L. v. R.L.M

Court Finds Juvenile Delinquent Based on Allegedly Offensive Instant Messages — In re Alex C.

Sending Politically Charged Emails Does Not Support Disturbing the Peace Conviction — State v. Drahota

Sixth Circuit: Email and Phone Advocacy Campaign Can Violate the Computer Fraud & Abuse Act — Pulte Homes v. LIUNA

Court Finds That Threatening Video Posted to YouTube and Facebook Can Constitute a “True Threat” — US v. Jeffries

Federal Prosecution Over “Threats” on Craigslist – US v. Stock