Before a progressive blogger calling himself “The Rooster” got arrested earlier this month in Ohio, the statute used against him–the telecommunication harassment statute–was being used against another Ohioan because he wouldn’t stop emailing a woman about her treasurer role. Seriously.
A Cincinnati-area Republican political operative recently convinced a federal court that Ohio’s telecommunications harassment statute is unconstitutional, at least as applied to his case. But the court refused to throw out the statute entirely.
Plaintiff Christopher R. Hicks is a member of the central and executive committee of the Clermont County Republican party. This case concerns email communications sent to Jeannie Zurmehly, who holds public office as the Clermont County treasurer.
Hicks sent emails to Zurmehly’s government email address raising concerns about Zurmehly’s role as treasurer of the Clermont County Republican party.
Zurmehly objected to Hicks using her government email for matters that she deemed unrelated to her public office and asked him to stop. Hicks persisted.
In April 2020, Zurmehly filed an offense report with the Clermont County sheriff’s office, seeking to press criminal charges for telecommunications harassment under Ohio law. Based on a clear conflict of interest, the Clermont County prosecutor’s office referred the matter to a special prosecutor with the Ohio attorney general’s office.
Getting charged with “telecommunications harassment” is a serious misdemeanor in Ohio, and will earn you a felony for a second offense. Here’s more context on the evolution of harassment law in Ohio, and its expanded application in this particular scenario against a constituent by a public official who didn’t like the emails she was getting:
In 1999, the title of the statute was changed to “Telecommunications [H]arassment,” and the word “telecommunication” was substituted for “telephone call.” An initial violation of § 2917.21(A)(5) constitutes a criminal misdemeanor in the first degree, but a subsequent violation is a fifth-degree felony punishable by a fine up to $2,500.00 and imprisonment of between six and twelve months.
Hicks argued that the statute was unconstitutional as applied to his case, because the state sought to apply §2917.21(A)(5) based solely on the content of Hicks’ emails; and the state sought to expand the use of a “harassment” law to shut down email communication from a constituent to his elected official at her government email address that is not threatening, abusive, intimidating or otherwise “harassing” in any traditional sense of the word.
The court agreed. It noted first that the enforcement of the statute in this case was based on the content of the emails. As it noted, “[the state] puts an unmistakable content-based gloss on the application of § 2917.21(A)(5) to the emails at issue, declaring them as violative of § 2917.21(A)(6) by reference to whether they concern ‘nongovernment business,’ as defined by Zurmehly . . .”
The court was also troubled by the fact that the email was a government email address used by a governmental official. As the court noted, “[the] cases do not support applying the statute to a government email that, by all accounts, is regularly used by Zurmehly and constituents alike to communicate about matters of public concern and/or to petition the county treasurer.” In short, it would not serve the interests of the First Amendment to allow an elected official to make the rules about what someone could talk about on an official account, and criminally prosecute people who failed to abide.
But the court declined to find that the statute was “facially” unconstitutional. In the court’s view, the statute did not violate the Constitution in all circumstances. In considering a facial challenge, the court should strike down a statute that proscribes a substantial amount of protected speech.
Ok, now that you know the kind of telecommunication behavior deemed NOT harassment after public dollars were wasted in the failed criminal prosecution of a male constituent because a female treasurer was eager to claim victimhood and use lawfare to destroy him, let’s check out the legal fallout from the criminal Shrek dick pic that initiated the most recent deployment of Telecommunication Harassment in Ohio.
The founder of The Rooster, a prominent progressive newsletter that regularly criticizes Ohio’s political establishment, was arrested at the Statehouse on Monday.
Officials charged Donald “DJ” Byrnes with a misdemeanor charge of telecommunications harassment. Ohio State Highway Patrol Sgt. Tyler Ross, a patrol spokesperson, said Byrnes was arrested at the Statehouse on a warrant entered by the police department in Kirtland, a small city in Lake County, near Cleveland.
Records show Byrnes is being held in jail by the Franklin County Sheriff’s Office as of 6 p.m. Monday on a misdemeanor offense. The records indicate he’s being held on behalf of officials in Lake County, near Cleveland.
Specifics about the charges are not available on the Willoughby Municipal Court’s website as of Monday evening.
For more on the alleged text exchange that provided the justification for the arrest warrant, here’s an excerpt from The Columbus Dispatch:
The Ohio State Highway Patrol arrested him June 1 at the statehouse on an outstanding warrant for a misdemeanor. The warrant was signed by Willoughby Municipal Court Judge Marisa L. Cornachio, who is running for an appeals court seat and has been endorsed by State Sen. Jerry Cirino, R-Kirtland.
Littman said he believes the case stems from Byrnes texting Cirino a photo of cartoon character Shrek’s penis. The warrant says Byrnes allegedly texted
Littman shared what he said was a text exchange between Byrnes and Cirino that included a naked Shrek. Cirino’s alleged reply was “I don’t know who this is but I’m certain you’re a moron.”
Cirino declined to comment on the case.
While Cirino declined to comment, the same can’t be said for Ohio’s Governor, Vivek Ramaswamy, who suggested this blogger has mental health issues, as reported by Signal Cleveland:
This case should be interesting to follow as the tactics of lawfare become more and more common across the country. Hopefully, if I don’t get too bogged down with my own First Amendment challenges, I’ll remember to check back in on this case in a few months.
If you would like to help a much less partisan (but no less prosecuted) blogger, like myself, here’s the GoFundMe link I’m using to raise funds now that I’m facing another criminal charge of violating an order of protection:
Thanks for reading!