Mimesis Law
26 April 2017

Revenge Porn Law To The Rescue! Of A Cop

May 31, 2016 (Mimesis) — Sorry, police officers. Sometimes, people say mean things about you. We get miffed when you shoot family pets. We get aggravated at the apparent hypocrisy of putting tens of thousands of people in jail each year on misdemeanor pot charges and then, when you think the cameras aren’t rolling, stealing yourself some weed brownies. And would it kill you to leave a few more mentally ill people alive?

But we understand. Sometimes feelings get hurt and you just have to act out. So of course you had to arrest Edward Forchion for posting a video where he called an officer a pedophile. If you didn’t, how would people know to respect your courage?

First, a little background on Forchion, as per US News:

Edward Forchion operates a restaurant called NJ Weedman’s Joint across the street from City Hall in Trenton, New Jersey’s capital. Next door is his “temple,” where state-legal medical marijuana patients and other congregants use cannabis.

Naturally, with a nickname like “NJ Weedman,” the guy attracted some unwanted attention. People in city government were a little uncomfortable with the perception that they might be associated with drugs. So they started finding ways to mess with his restaurant. Regular health and safety inspections. Finding reasons to arrest customers as they walk out the door. Applying the thousand small technicalities that we expect citizens to know by heart, and officers by vague recollection.

In the middle of one of these routine pop-ins, Forchion got a little upset. He started calling Officer Herbert Flowers (one of a few officers at the scene) a “pedophile” and “big boy,” and asking him what he had done to “that little girl.” It’s not clear why he chose those terms. Maybe he has some sort of inside knowledge. More likely, he just thought it would be an upsetting thing to say. He was not arrested at the scene.

But a few days later, he posted a video of the encounter online. And officers stopped by to take him to jail. The charges? Disorderly conduct and cyber harassment. And, naturally, marijuana found incident to arrest.

The cyber harassment charge reads like this:

Defendant did commit the act of crime of cyber harassment by making communications in a [sic] online capacity via any electronic device or through a social networking site (Facebook & YouTube) and with the purpose to harass Officer H. Flowers, knowingly posts and comments intent to emotionally harm a reasonable person specifically stating directly at Officer H. Flowers while in public “Flowers your [sic] a pedophile and everybody out here knows you are a fucking pedophile.

The disorderly conduct charge came from using the word “fuck” in public. It probably isn’t going to hold up too well in court, since that law was struck down in 1985.

As for the harassment charge, it seems nonsensical. First off, it’s barely English. It’s difficult to see exactly what intent Forchion is accused of having. As near as I can tell, the claim is that he intended to hurt Officer Flowers’ feelings when he posted mean things about him online.

Eugene Volokh argues that the statute as written doesn’t even cover this sort of behavior, allowing a charge only for a defendant who:

knowingly sends, posts, comments, requests, suggests, or proposes any lewd, indecent, or obscene material to or about a person with the intent to emotionally harm a reasonable person or place a reasonable person in fear of physical or emotional harm to his person.

Now here, I have to disagree with Volokh. A video accusing someone of having sex with children might be “lewd” or “indecent” in the mind of some potential finder of fact, even if those terms aren’t laid out clearly in the statute. Bear in mind, we live in a country where many libraries do without Huckleberry Finn due to some period appropriate racial slurs, and where Ted Cruz not so long ago had to fight tooth and nail to preserve a state ban on dildos.[1] “Indecent” is an awfully broad brush to paint with.

Assuming that the law applies, it has major constitutional problems. For one thing, because it appears to be a “revenge porn” law, it doesn’t allow truth or public interest as a defense. Posting a picture of Anthony Wiener’s junk to his Facebook page in response to an unwanted text or providing video evidence that a police officer raped a citizen would be no more protected than sending naked photos of an ex-wife to her place of work. It isn’t content neutral, and it doesn’t travel solely within an unprotected category of speech, so it probably wouldn’t survive a First Amendment challenge.

It’s here that we start to see the real irony of these sorts of laws, pushed by certain debate-shy academics whose purity of vision has not been marred by exposure to judges and juries. In an effort to protect women and teenagers from emotionally harmful online conduct (the bill was passed in the wake of several “cyber-bullying” suicides), the legislature created an additional tool for powerful people to escape public scrutiny. It is only through prosecutorial discretion that a woman who accused a public servant of harming her sexually could not be charged. And prosecutorial discretion is not a reliable source of justice.

It seems likely that Forchion chose the words he did to get the maximum reaction from the police, in the hopes that they would do something stupid. And when it comes to police, such hope springs eternal. But even if Forchion said something knowingly false about Officer Flowers to get a rise out of him, that isn’t a crime. And it probably shouldn’t be.

But by giving officers the discretion to enforce such laws as they see fit, New Jersey has created a new power to use and abuse. Rather than serving to protect women and teenagers, the law will serve the interests of those who would rather not be insulted. Only time will tell whether that is a bug, or a feature.

 

[1] Volokh also suggests that if the marijuana was found incident to arrest, then that may be a good basis for suppression. But usually, the government may use evidence secured during an arrest from an unconstitutional law. And even if the officers were reasonably mistaken about whether the pedophilia accusation was “indecent,” that alone might not lead to suppression. Then again, the man’s pretty damn smart and was a pleasure to watch at oral argument here in Georgia, so I may have missed some New Jersey specific rule of suppression.

2 Comments on this post.

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  • Scott Neuman
    31 May 2016 at 11:26 am - Reply

    Ed is a cancer sufferer and uses cannabis as treatment for his cancer.

  • EDWARD FORCHION
    31 May 2016 at 10:22 pm - Reply