Conviction for Posting Pages From Teenager’s Diary Via Mail and Facebook Partially Reversed
The defendant, Teri Buhl, was prosecuted under a bizarre set of facts. Buhl, a journalist, was in a relationship with P (the opinion does not identify him, but Buhl’s account of the case, linked below, does). P’s daughter kept a diary where she chronicled her thoughts and activities. Around the time of M’s graduation, she received a message that there was a Facebook profile with the name “Tasha Moore,” containing details that bore a resemblance to M. When M viewed the page, she saw a message that:
[M] . . . get so drunk at parties that boys know she is an easy hookup. In April at [A’s] house party she gave [O] a blow job and then threw up. [O] calls her deep throat JAP. [M] told her friends that . . . she thought giving the best BJ would help make [O] her boyfriend. You wonder why some . . . [high school] girls never learn to behave around boys.
M was upset. The Facebook profile also contained photographs of M’s diary entries, which contained the details mentioned above. M asked “Moore” to take down the page and threatened to go to the police. When Moore did not take down the page, M went to the police.
Later that day, P received an envelope containing copies of pages from M’s diary, along with a letter purporting to be from a friend of M’s. The friend supposedly told her mom about the story referenced in the letter and was sharing the story with P at the suggestion of her mom. P and M took the materials to the police.
The next day, P had dinner with the defendant and recounted the goings on. The defendant said that she was the one who had a conversation with a girl (presumably a friend of M’s) and she supposedly received the materials from the anonymous girl, which she then sent to P. Defendant promised to keep her “source” confidential and declined to disclose the source’s identity to P. In any event, there was no dispute that defendant sent copies of the pages from M’s diary to P.
The investigating officers served subpoenas on Facebook and Cablevision and supposedly received information linking the IP address used to register the Tasha Moore account with the defendant. She was charged with harassment and breach of the peace. (She was also charged with interfering with an officer, but she was not convicted of this charge.)
Harassment: the harassment statute reaches anyone who:
With intent to harass, annoy or alarm another person . . . communicates with a person by . . . mail, . . . computer network . . . or by any other form of written communication, in a manner likely to cause annoyance or alarm.
The acts underlying the harassment charge included: (1) mailing the materials to P, with the intent to alarm or annoy both P and M; and (2) communicating the diary pages via Facebook (with the intent to alarm or annoy M).
The court bypasses Buhl’s First Amendment arguments and arguments based on journalistic privilege (?) and instead focuses on sufficiency of the evidence. The court says there is no dispute she mailed the materials, and the manner in which she mailed the materials (anonymously and with a concocted explanation) is circumstantial evidence of her bad intent. The manner of disclosure of the diary pages also contributed to the alarm P and M must have felt in wondering how a random person could have obtained access to M’s private diary. M also testified that, although Buhl had a good relationship with P, she did not have a good relationship with M. The court says there is enough evidence to sustain a conviction on the harassment charge.
Breach of the peace: this claim required the state to show that defendant “publicly” posted “offensive, indecent or abusive matter concerning any person . . . with the intent to cause inconvenience, annoyance or alarm.” Buhl contested whether the postings on the Moore page were “publicly” exhibited. The court agrees, noting that the testimony from M was insufficient to establish that the Facebook page was open to the public. M testified that only limited numbers of people received invitations to the page, and she was able to view the page through a friend’s page (M’s testimony seemed vague on this point). The state argued that 8 people being invited to the page made it sufficiently public, but the court disagrees, noting that the statute uses the term “public” to mean “generally open to the public” as opposed to open to a certain number of people. The court also stated that the public-ness of the Facebook page in question was a topic could have benefited from expert testimony, because it was a topic that the judge was not familiar with (not being a Facebook user) and one that M was not qualified to opine on. In light of the court’s expressed unfamiliarity with Facebook and M’s inability to testify on the effect of the privacy settings, it was incumbent on the state to some additional testimony on this topic.
What a bizarre case. Interestingly, the defendant was a party in another case that made an appearance on the blog. That case stands for one of those propositions that is obvious but that can always benefit from a direct case citation: “Linking to Defamatory Content Protected by Section 230.”
From a First Amendment standpoint, this case is worrisome. The defendant is prosecuted under not one but two statutes that attempt to criminalize annoying and offensive communications. The court glosses over her First Amendment argument because it wasn’t teed up adequately, but the court should have no trouble and wouldn’t even be going out on a limb saying that a statute making it criminal to send “annoying,” “alarming,” or “harassing” communications does not pass First Amendment scrutiny. (I’ve seen some and perhaps even authored some blog posts that satisfy this standard.)
Buhl gets a break on her breach of the peace conviction. Again, the court could have nuked it on First Amendment grounds. The statute has vague overtones of fighting words but its reach is not restricted to this, which means it sweeps up both protected and unprotected speech. (See State v. Smith, a recent case, dealing with comments to a police department’s Facebook page, that discusses this issue.) Instead of addressing the First Amendment issue head on, the court tackles the always interesting topic of whether something posted online is private or public. Normally, defendants don’t get the benefit of the doubt when they claim that a posting is private because it’s posted to a small(er) group of people or because the privacy settings somehow restrict its access. In that regard, this is a rare case. The court actually credits Buhl’s argument that although the content was posted to Facebook, it wasn’t truly “public” (or at least that the state did not prove that it was sufficiently public). Perhaps this is a function of the statutory language, requiring the content to be posted in a “public place,” but the case is nevertheless an anomaly in this respect.
Another point of interest is that the trial court found that the Facebook account was never linked to Buhl’s IP address. The state tried to make a connection but the defense rejected on hearsay grounds, and the state never closed the loop on this evidentiary point.
Buhl’s conviction should have been thrown out. It’s part of a disturbing pattern of harassment and cyberbulling prosecutions for revealing the sexual dalliances of others. (See, e.g., In re P.T.; New York v. Marquan. We may want to penalize this behavior in certain circumstances, but I’m not convinced this is one such case.) Here, given that the only conduct Buhl was found to have committed was sending pages from the diary to P., this can be characterized more as a intra-family squabble than an incident of harassment. In that respect it’s closer to Olson v. La Brie, the case involving embarrassing Facebook photos posted by an uncle. A factual point worth highlighting is that the court says Buhl is not responsible for the Facebook page, and the Facebook page preceded the mailing of the diary pages to P and M. In other words, by mailing the pages from the diary, Buhl did not disclose anything that was not already known to P and M.
Perhaps Buhl should be held civilly liable for conversion or invasion of privacy? As with other cases of this nature, the trial judge must not have thought much of her crimes: Buhl was sentenced effectively to a month (15 days, since the breach of peace conviction was scuttled). That’s still 15 days too much but it’s some small solace.
Case citation: State v. Buhl, No. 35606 (Conn. Ct. App. Aug 12, 2014) [pdf]
Interesting (related) link: Buhl’s own account of the case, with some back-story here: “A malicious prosecution“.
Added: I had forgotten that in early 2013 Ms. Buhl threatened legal action against Techdirt and others over quoting her tweets: “Teri Buhl Threatens To Sue Us And Others; Still Seems Confused About The Law.” That’s certainly a strange claim for anyone, much less a journalist, to make, but it does not make her any less deserving of the protections of the First Amendment.