IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2328 September Term, 2016 AARON J. WALKER, ESQ., Appellant v. STATE OF MARYLAND, ET AL, Appellees Appeal from the Circuit Court of Montgomery County, Maryland (Hon, Michael D. Mason, Judge) BRIEF OF AMICUS CURIAE PROF. EUGENE VOLOKH Michael F. Smith smith@smithpllc.com The Smith Appellate Law Firm 7566 Main Street Suite 307 Sykesville, MD 21784 (202) 454-2860 For Amicus Curiae Prof. Eugene Volokh* Date: June 15, 2017 Counsel would like to thank Elizabeth Arias, a UCLA School of Law student who worked on this brief.TABLE OF CONTENTS Page Table of Contents... Table of Authorities ... Interest of Amicus Curiae. Argument...... I. Section 3-805(b)(2) is a content-based speech restriction. IL. Section 3-805(b)(2) prohibits or deters a broad range of speech about people’s daily lives IIL. The restricted speech is protected by the First Amendment. IV. The analogy to the intentional infliction of emotional distress tort does not save § 3-805(b)(2) from overbreadth. Certification of Word Count & Compliance with Rule 8-112 Rule 8-504(a)(9) Statement... Certificate of Service.TABLE OF AUTHORITIES Cases Brown v. Entm’t Merchants Ass’n, 564 U.S. 786 (2011)... Citizens United v. FEC, 558 U.S. 310 (2010) FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007). Florida Star v. B.J.F., 491 U.S. 524 (1989).... Galloway v. State, 365 Md. 599 (2001)... Garrison v, Louisiana, 379 US. 64 (1964).. Ginsberg v. New York, 390 U.S. 629 (1968) Hamilton v. Ford Motor Credit Co., 66 Md. App. 46 (1986)... Harris v. Jones, 281 Md. 560 (1977)... Hines v, French, 157 Md. App. 536 (2004)... Holder v. Humanitarian Law Project, 561 U.S. 1 (2009). Hustler Magazine, Inc. v, Falwell, 485 U.S. 46 (1988) Lasater v. Guttman, 194 Md. App. 431 (2010). Oklahoma Pub. Co. v. Dist. Court, 430 U.S. 308 (1977) .. Reno v. ACLU, 521 U.S. 844 (1997) Smith v. Goguen, 415 U.S. 566 (1974) ... Snyder v. Phelps, 562 U.S. 443 (2011) State v. Bishop, 368 N.C. 869; 787 S.E.2d (N.C. 2016)... United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217 (1967) .. United States v. Stevens, 559 U.S. 460 (2010)... iiW.C.L. v. Bd. of Educ. of Borough of Tenafly, #15-13 (N.J. Comm’r of Ed. Jan. 10, 2013). Statutes ~- § 3-805(b)(1)... ~ § 3-805(b)(2).... ~ §3-805(d)... ~-§ 6-101. Other Authorities Eugene Volokh, Freedom of Speech and Bad Purposes, 63 UCLA L. REV. 1366 (2016). . . Eugene Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyberstalking,” 107 NW. U. L. REV. 731 (2013).. iiiINTEREST OF AMICUS CURIAE Professor Eugene Volokh teaches and writes about First Amendment law at UCLA School of Law. He is the author of a First Amendment textbook and many articles on First Amendment law, including two articles highly relevant to this case, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyberstalking,” 107 Nw. U. L. REV. 731 (2013), and Freedom of Speech and Bad Purposes, 63 UCLA L. REV. 1366 (2016). ARGUMENT L.__ Section 3-805(b)(2) is a content-based speech restriction. All or nearly all of what Maryland Code, Criminal Law Article (“Crim. Law”) § 3 805(b)(2) restricts is speech: blog posts, social media posts, e-mail messages about class- mates, Snapchats, and the like. And the statute’s reference to a “course of conduct” cannot keep it from being a speech restriction, as the Supreme Court’s decision in Holder v. Hu- ‘manitarian Law Project, 561 U.S. 1 (2009), makes clear. In Holder, the Court considered a statute aimed at the conduct of providing “material support to terrorist organizations.” Id. at 7. Unlike the Maryland law, the “material support” statute applied mainly to conduct, such as the provision of funds, military services, and the like. Id, at 26. And the government argued that the law “should . .. receive [only] interme- diate scrutiny because it generally functions as a regulation of conduct.” Jd. at 27.But the Court held that, even though the law “may be described as directed at conduct,” when “the conduct triggering coverage under the statute consists of communicating a mes- sage,” the law should be viewed as a speech restriction. Id. at 28, The Maryland statute is even more clearly a speech restriction: virtually everything that “trigger{s] coverage under the statute consists of communicating a message.” The Holder Court also held that the “material support” statute was content-based: “[The statute] regulates speech on the basis of its content. Plaintiffs want to speak . .. and whether they may do so... . depends on what they say.” /d. at 27. And when a “generally applicable law” is applied to speakers “because of what [their] speech communicate[s}”—for instance, “because of the offensive content of [a speaker’s] particular message”—the law must be subjected to the strict scrutiny applicable to content-based restrictions. Jd. at 28. ‘The Maryland statute is similarly content-based. Whether people in Maryland can speak lawfully depends on what they say: A scathing review of a teen idol’s newest single might seriously distress the singer, and thus trigger the statute, but a positive review will not; a harsh condemnation of a cheating ex-boyfriend might be seriously distress the ex, but praise of the ex will not. The law is applied to speakers “because of what [their] speech communicate[s],” including because of its “offensive content.” It must therefore be treated as a content-based speech restriction. Indeed, the North Carolina Supreme Court has recently held that a similar North Caro- lina statute, which banned posting “[any] private, personal, or sexual information pertain- ing to a minor” “[w]ith the intent to intimidate or torment a minor” was likewise a speech 2restriction, and not just a restriction on conduct. State v. Bishop, 368 N.C. 869; 787 S.E.2d 814 (2016). “Posting information on the Internet—whatever the subject matter—can con- stitute speech as surely as stapling flyers to bulletin boards or distributing pamphlets to passersby—activities long protected by the First Amendment.” Jd., 368 N.C. at 873; 787 S.E.2d at 817. ‘As North Carolina’s Supreme Court noted, “{s]uch communication does not lose pro- tection merely because it involves the ‘act’ of posting information online, for much speech requires an ‘act’ of some variety—whether putting ink to paper or paint to canvas, or hoist- ing a picket sign, or donning a message-bearing jacket.” Id., 368 N.C. at 874; 787 S.B.2d at 818. And because the North Carolina statute “makes it impossible to determine whether the accused has committed a crime without examining the content of his communication,” the court held, it constitutes a content-based speech restriction, despite the state’s aim of protecting minors. Id., 368 N.C. at 876; 787 S.E.2d at 819. Likewise, because it is impos sible to determine whether a speaker has violated § 3-805(b)(2) without considering whether the content of the speech was seriously distressing, Crim. Law § 3-805(b)(2) is a content-based speech restriction. IL. _ Section 3-805(b)(2) prohibits or deters a broad range of speech about peo- ple’s daily lives. Consider a high-school girl who wants to write a Facebook post revealing the details of her breakup with a cheating ex-boyfriend. She may well be subject to criminal prosecutionunder the statute, even if what she says is true. It is certainly possible that the ex will suffer “serious emotional distress” from being condemned as a cheater to his friends. Indeed, a recent New Jersey decision went so far as to conclude that a classmate’s ac- curately saying that a fourth-grader had head lice could constitute “harassment, intimida- tion, or bullying.” W.C.L. v. Bd. of Educ. of Borough of Tenafly, #15-13 (N.J. Comm’r of Ed. Jan. 10, 2013), http://www.nj.gov/education/legal/commissioner/2013/jan/15-13.pdf. If such speech among classmates can be labeled harassment, then speech revealing a teen- ager’s infidelity could likewise be seen as seriously distressing. ‘And the ex-girlfriend might be found to have had the intent to harass or to seriously distress, given her understandable anger at her ex-boyftiend. Moreover, because “harass” simply means “to annoy persistently,” Galloway v. State, 365 Md. 599, 627-28 (2001), then a sequence of posts talking about her ex-boyfriend’s cheating might qualify as intended to “harass” even if the git] intended only to make him feel ashamed (and thus annoy him) and not to seriously distress him. But even if the girl’s intentions are good—if she just wants to warn her acquaintances so that they will not be fooled by the ex in the future, or she just wants to truthfully explain to her friends why she is feeling depressed—she may worry that a prosecutor, judge, and jury will mistakenly assume that she is motivated by a desire to seriously distress. Indeed, in FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), the U.S. Supreme Court rejected a similar attempt to regulate speech based on the speaker’s intentions, precisely because such intent-based tests tend to deter even well-intentioned speech. 4In Wisconsin Right to Life, the government urged the Court to uphold a statute restrict- ing corporate election-related speech by reading the statute as limited to speech that is in- tended to influence an election. Id. at 465. But the Court rejected such an intent-based test, because “[n]o reasonable speaker would choose to [speak when] covered by [an intent- based statute] if its only defense to a criminal prosecution would be that its motives were pure. An intent-based standard ‘blankets with uncertainty whatever may be said,’ and ‘of- fers no security for free discussion.” Jd. at 468 (Roberts, C.J., lead op.); id. at 492 (Scalia, J, concurring in part and in the judgment) (similarly concluding that “test[s] that [are] tied to... a court’s perception] of .... intent” are “ineffective to vindicate the fundamental First Amendment rights” of those against whom the intent-based law is applied). See Eu- gene Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyberstalking,” 107 Nw. U. L. REV. 731, 773-83 (2013) (further discussing why criminal harassment laws that ban speech about a person cannot be saved by having an improper-purpose element); Eugene Volokh, Freedom of Speech and Bad Purposes, 63 UCLAL. REV. 1366, 1385-1414 (2016) (more generally analyzing why restrictions on oth- exwise protected speech generally cannot be saved by having an improper-purpose ele- ment). The same applies to the high-school girl in the hypothetical, and to many other speakers. Section 3-805(b)(2) “blankets with uncertainty” whatever the girl might say online that condemns her ex-boyfriend and that might seriously distress him. The statute “offers no security” for her to freely discuss her life with her classmates and friends. And the U.S. 5Supreme Court has recognized that whether a law chills speech (even when it does not unambiguously forbid the speech) counts in determining whether the law is unconstitution- ally overbroad, because such a chill “silences some speakers whose messages would be entitled to constitutional protection.” Reno v. ACLU, 521 U.S. 844, 879 (1997). Nor does the § 3-805(b)(2) requirement that the defendant act “maliciously” add any protection for speakers. Presumably an intent to seriously distress or even to harass would be seen as sufficient to satisfy the “maliciously” requirement. Indeed, the only Maryland criminal statute that defines “maliciously,” Md. Code Ann., Crim. Law § 6-101 (which deals with arson), defines the term to simply mean “acting with intent to harm a person or property,” which would presumably cover an intent to distress or harass. A speaker who is condemning her classmate, even out of the best intentions, might indeed worry that prose- cutors, judges, and juries will think she is speaking “maliciously” and with an intent to “harass” or “seriously distress.” IIL. The restricted speech is protected by the First Amendment. Section 3-805(b)(2) thus punishes or deters a wide range of speech. This speech is con- stitutionally protected, and § 3-805(b)(2) is thus unconstitutionally overbroad on its face. Speech about people’s daily lives—about their romantic breakups, tensions with class- mates, and other such matters—is fully protected by the First Amendment, even when it lacks a political dimension. “Most of what we say to one another lacks ‘religious, political, scientific, educational, journalistic, historical, or artistic value’ (let alone serious value), but it is still sheltered from government regulation.” United States v. Stevens, 559 U.S. 460, 6479 (2010). “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and bene- fits. .. . Our Constitution forecloses any attempt to revise that judgment simply on the basis, that some speech is not worthy.” Id. at 470. “The First Amendment does not protect speech and assembly only to the extent that it can be characterized as political ....” United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 223 (1967). See Volokh, supra, 107 NW. ULL. REV. at 783-88 (discussing in more detail why speech about people’s daily lives is fully protected by the First Amendment). Nor does such speech lose protection simply because it may psychologically harm mi- nors. A limited category of materials—obscene-as-to-minors material—may indeed be criminalized under “variable obscenity” statutes on the grounds that such speech may harm minors. Ginsberg v. New York, 390 U.S. 629, 673 (1968). But the U.S. Supreme Court has rejected attempts to expand this narrow category of restrictable speech. For example, the goal of protecting minors did not save a restriction on drive-in theaters displaying movies that depict nudity. See Erznoznik v. City of Jacksonville, 422 US. 205, 213-14 (1975). More recently, this goal failed to save a restriction on the sale of violent video games to minors. Brown v. Entm’t Merchants Ass'n, 564 U.S. 786, 791-93 (2011). It likewise cannot save a law that suppresses (among other things) minors conveying facts and opinions about their ex-boyftiends or their classmates. Indeed, the North Carolina Supreme Court’s recent Bishop decision expressly rejected criminal liability for speech that intentionally “torment[s]” a minor, even when that statute 7was limited (as § 3-805(b)(2) is not) to speech that reveals “private, personal, or sexual information pertaining to a minor.” 368 N.C. at 878-79; 787 S.E.2d at 820-21. “[RJeading the motive [to torment] and subject matter requirements in tandem here does not suffi- ciently narrow the extensive reach of the cyberbullying statute,” because the law “could criminalize behavior that a robust contemporary society must tolerate because of the First Amendment, even if we do not approve of the behavior.” Id., 368 N.C. at 879; 787 S.E.2d at 821. Section 3-805(b)(2) is also broad enough to punish even speech about matters of public concern, stich as © ablog post, whether by an adult or a minor, revealing a criminal sexual relationship between a student and a teacher (which may intentionally distress the student and not just the teacher), © an email thread among classmates discussing a sixteen-year-old’s DUI conviction, © an email from one parent to another warning about a high-school student who gave alcohol or drugs to a classmate, and sharply condemning the student in the process, * aFacebook post criticizing a student government candidate for cheating on an exam, ‘© an online newspaper article sharply condemning some alleged misconduct (or even just artistic failings) on the part of a teen actor, musician, or athlete, an online Yelp review sharply but accurately condemning a teenage employee of a babysitting, dog-walking, or lawn-mowing company for providing poor service.The First Amendment protection especially clearly safeguards this type of speech, re- gardless of the speaker’s purposes. “{JJn the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amend- ‘ment. . .. [E]ven when a speaker or writer is motivated by hatred or ill will his expression [is] protected by the First Amendment.” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 53 (1988) (citing Garrison v. Louisiana, 379 U.S. 64, 73 (1964)); see also Snyder v. Phelps, 562 U.S. 443, 452 (2011) (applying Hustler to speech on matters of public concern, whether or not it involves public figures). Indeed, because crime is an issue of public concen, the First Amendment protects a newspaper’s right to publish the name of a rape victim (even though such speech can deeply distress the victim), and the name and picture of a criminal suspect, even when that suspect is only eleven years old. See Florida Star v. B.J.F., 491 U.S. 524, 541 (1989); Oklahoma Pub. Co. v. Dist. Court, 430 U.S. 308, 311-12 (1977). Likewise, the First Amendment protects ordinary citizens discussing similar matters of public concern, even when that dis- cussion distresses a minor. See Citizens United v. FEC, 558 U.S. 310, 341 (2010) (reaf- firming that the First Amendment protects all speakers equally, whether or not they are members of the institutional media). Section 3-805(b)(1), which applies to speech that seriously annoys adults, expressly exempts speech that has a “legal purpose,” and § 3-805(d) makes clear that § 3-805(b)(1) “does not apply to a peaceable activity intended to express a political view or provide in- formation to others.” The Court of Appeals held that such exclusion of protected speech is 9what made § 3-805(b)(1) constitutional: “[The statute] expressly eliminates constitution ally protected speech from its ambit. [The statute] ‘does not apply to any peaceable activity intended to express political views or provide information to others’ and the conduct to be prohibited must have no ‘legal purpose.’” Galloway v. State, 365 Md. 599, 644 (2001). But § 3-805(b)(2) lacks any exclusion for speech that has a “legal purpose,” and § 3+ 805(d) carves out an exception for information or political speech only from (b)(1), not to (b)(2). Under the logic of Galloway, § 3-805(b)(2) thus lacks the protections that would make the provision constitutional. IV. The analogy to the intentional infliction of emotional distress tort does not save § 3-805(b)(2) from overbreadth. Section 3-805(b)(2) also cannot be justified by analogy to the intentional infliction of emotional distress tort. 1. The emotional distress tort is limited to “extreme and outrageous” behavior. When the Court of Appeals recognized the emotional-distress tort, it expressly endorsed the Re- statement of Torts language describing the “extreme and outrageous” element: “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Harris v. Jones, 281 Md. 560, 567 (1977). Following this, many Maryland decisions have held that even highly distressing behavior is generally not extreme and outrageous. See, e.g., Lasater v. Guttman, 194 Md. App. 431, 443 (2010) (holding that a husband’ pattem of lying about his income, engaging 10in extramarital affairs, losing his temper, and publicly embarrassing his wife was not ex- treme and outrageous); Hines v. French, 157 Md. App. 536, 546 (2004) (holding that a police officer’s laughing while slamming the plaintiff's recently-operated-on face into the side of a car, and handcuffing the plaintiff so tightly that the cuffs made lacerations, was not extreme and outrageous); Hamilton v. Ford Motor Credit Co., 66 Md. App. 46, 59 (1986) (holding that the defendant’s incessant and hostile calling of the plaintiff at all hours to collect a debt “was unquestionably rude, insensitive, callous, and in poor taste,” but not extreme and outrageous). Yet § 3-805(b)(2) is not confined by an “extreme and outrageous” speech requirement. It thus criminalizes speech that would not even create civil liability under the emotional- distress tort. A high-school gir!’s post angrily denouncing her ex-boyfriend for cheating on her is not “extreme in degree”; indeed, such speech is likely quite common. Nor is it “atro- cious, and utterly intolerable in a civilized community.” It is thus immune even from tort liability. But § 3-805(b)(2) would criminalize it, so long as a prosecutor and a judge finds that it was intentionally “seriously distressing.” 2. While the emotional-distress tort creates only civil liability, § 3-805(b)(2) subjects the speaker to criminal liability. Criminal laws especially chill speech: “The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images.” Reno v. ACLU, 521 U.S. 844, 872 (1997). And the “extreme and outrageous” test, even if constitutionally permissible in a civil case, is likely unconstitutionally vague when applied to deprive someone of his liberty. Cf, €.g., iSmith v. Goguen, 415 U.S. 566, 575-78 (1974) (holding that a ban on “contemptuous[]” treatment of the American flag was unconstitutionally vague, 15 years before the Court held that there was a substantive constitutional right to desecrate the flag). 3. The emotional-distress tort must exempt speech on matters of public concern, even when the speech is seen as “outrageous” and intended to seriously distress. In Snyder v, Phelps, 562 U.S. 443 (2011), the U.S. Supreme Court held that members of the Westboro Baptist Church protesting the Westminster funeral of a fallen soldier could not be liable for intentional infliction of emotional distress under Maryland law because their signs—some of which read “Thank God for IEDs,” “Fag Troops,” “God Hates Fags,” and “Thank God for Dead Soldiers”—addressed matters of public concern. Jd, at 458. The First Amendment. protection offered to such speech “cannot be overcome by a jury finding that the picketing ‘was outrageous.” Jd. at 458. To be constitutional, the intentional infliction of emotional distress tort thus must exempt speech on matters of public concern. Id. at 458-59. ‘Yet § 3-805(b)(2) expressly rejects any exception for speech on matters of public con- cern (as opposed to §§ 3-805(b)(1) and 3-805(d), which provide such an exception for distressing speech about adults). Because the statute criminalizes a substantial amount of protected speech, it is overbroad, and thus unconstitutional. CONCLUSION Maryland Crim. Law § 3-805(b)(2) is a content-based restriction on speech that pun- ishes or deters a wide range of fully protected speech. Nor can § 3-805(b)(2) be justifiedby an analogy to the emotional-distress tort. Section 3-805(b)(2) is thus overbroad and vi- olates the First Amendment. Respectfully submitted, el (te Michael F. Smith smith@smithplle.com The Smith Appellate Law Firm 7566 Main Street Suite 307 Sykesville, MD 21784 (202) 454-2860 For Amicus Curiae Prof. Eugene Volokh June 15, 2017CERTIFICATION OF WORD COUNT & COMPLIANCE WITH RULE 8-112 This brief contains 3,191 words, excluding the parts of the brief exempted from the word count by Rule 8-503. RULE. )4(A)(9) STATEMENT. This brief was printed using Microsoft Word 2010 and a proportionally spaced font: Times New Roman, 13 point.