                                                                          FILED
                                                                      Aug 27 2019, 8:49 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                         Curtis T. Hill, Jr.
Derick W. Steele                                           Attorney General of Indiana
Kokomo, Indiana                                            Ian McLean
                                                           Supervising Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Constance J. McGuire,                                      August 27, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-2554
        v.                                                 Appeal from the Howard Superior
                                                           Court
State of Indiana,                                          The Honorable Douglas A. Tate,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           34D03-1801-CM-90



Bailey, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019                           Page 1 of 23
                                              Case Summary
[1]   Following a bench trial, Constance McGuire (“McGuire”) was convicted of

      Class B misdemeanor Harassment1 relating to statements she posted online.

      McGuire now appeals. She challenges the sufficiency of the evidence and

      alleges her conviction is improper because she was engaged in constitutionally

      protected speech. Because we identify sufficient evidence and conclude

      McGuire transmitted a constitutionally proscribable true threat, we affirm.



                               Facts and Procedural History                                 2




[2]   McGuire had a son who died after consuming methamphetamine during a

      traffic stop. Officer Jeramie Dodd (“Officer Dodd”) of the Kokomo Police

      Department was present at the stop. At some point, McGuire posted several

      statements on Facebook mentioning Officer Dodd. These statements were

      visible to over 1,000 people who were “friends” with McGuire on the social

      media platform. Officer Dodd was not within that group of people. However,

      a concerned citizen contacted Officer Dodd and passed along the statements.

      In those statements, McGuire asserted that Officer Dodd killed her son. She

      also said: “Yes he set my son up to die. He did do it and so did KPD so y’all

      better watch out for me cuz I’m coming for all of younand if u work n that Jail




      1
          Ind. Code § 35-45-2-2(a)(4)(B).
      2
          We held oral argument on July 24, 2019. We thank the advocates for their skilled presentations.



      Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019                               Page 2 of 23
      I’m comn for u to so u better watch out this mother is on a rampage and ready

      to shoot to kill.” Ex. 1.3 In one post, McGuire wrote: “Fuck Jeremy Dodd like

      I said he a whole bitch kill urself u bastard.” Id. At the end of the post,

      McGuire wrote: “Everyone share.” Id. McGuire also wrote: “FUCK KPD

      OFFICER JERemy DODD yes I said it loud and proud FUCK U PIG DO

      SUMTHN BITCH if u don’t know now u kno.” Id. McGuire also mentioned

      Officer Dodd and said that “when it comes to my kids anyone can get it.” Id.


[3]   The State charged McGuire with Class B misdemeanor Harassment. A bench

      trial was held in September 2018 at which McGuire represented herself and

      elected to testify. The trial court took the matter under advisement. At an

      ensuing hearing, the court found McGuire guilty and pronounced its sentence.


[4]   McGuire now appeals.



                                  Discussion and Decision
[5]   The State charged McGuire with Harassment under Indiana Code Section 35-

      45-2-2(a)(4)(B), which provides—in pertinent part—as follows: “A person who,

      with intent to harass, annoy, or alarm another person but with no intent of

      legitimate communication . . . uses a computer network . . . or other form of




      3
       Because Exhibit 1 consists of a series of screenshots, which are images showing content on a computer
      display—e.g., a smartphone screen—we transcribe the content verbatim, without denoting deviation from
      Modern English.

      Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019                           Page 3 of 23
      electronic communication to . . . transmit an obscene message or indecent or

      profane words to a person . . . commits harassment, a Class B misdemeanor.”


[6]   This statute regulates speech, which is afforded protection through the First

      Amendment to the United States Constitution and Article 1, Section 9 of the

      Indiana Constitution. See U.S. Const. amend. I; Ind. Const. art. 1, § 9. The

      First Amendment reflects the “bedrock principle . . . that the government may

      not prohibit the expression of an idea simply because society finds the idea itself

      offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989). Indeed,

      law that “discriminates on the basis of viewpoint . . . collide[s] with” the First

      Amendment. Iancu v. Brunetti, 139 S. Ct. 2294, 2299 (2019). Whereas the

      federal constitution is concerned with any viewpoint-based law—irrespective of

      whether the impaired speech is political—our Article 1, Section 9 focuses on

      protecting political speech. See Price v. State, 622 N.E.2d 954, 963 (Ind. 1993).


[7]   There are different types of constitutional challenges. For example, sometimes

      litigants directly challenge the constitutionality of a statute by alleging facial

      viewpoint bias. See, e.g., Iancu, 139 S. Ct. at 2298 (involving a facial challenge

      to a trademark law prohibiting registration of immoral or scandalous marks).

      Here, McGuire presents no challenge to the facial validity of the instant statute,

      and so we leave that type of statutory inquiry for another day. McGuire instead

      contends her specific Facebook posts were constitutionally protected, and that

      her conviction amounts to an unconstitutional impairment of speech. McGuire

      also alleges insufficient evidence supporting the conviction.



      Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019         Page 4 of 23
[8]   We approach a typical sufficiency challenge with “great deference” to the fact-

      finder. Brewington v. State, 7 N.E.3d 946, 955 (Ind. 2014). That is, “[w]e

      neither reweigh evidence nor judge witness credibility.” Gibson v. State, 51

      N.E.3d 204, 210 (Ind. 2016). Moreover, we view the “evidence and reasonable

      inferences drawn therefrom in a light most favorable to the conviction, and will

      affirm ‘if there is substantial evidence of probative value supporting each

      element of the crime from which a reasonable trier of fact could have found the

      defendant guilty beyond a reasonable doubt.’” Walker v. State, 998 N.E.2d 724,

      726 (Ind. 2013) (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)).

      However, to the extent the instant appellate issues implicate principles of

      freedom of speech, the Indiana Supreme Court has held that “[d]eferential

      review . . . creates an unacceptable risk of under-protecting speech.”

      Brewington, 7 N.E.3d at 955. Indeed, because of the importance of protecting

      free public discourse, we have a “constitutional duty,” id., to independently

      examine the record “to assure ourselves that the judgment does not constitute a

      forbidden intrusion on the field of free expression,” Journal-Gazette Co., Inc. v.

      Bandido’s, Inc., 712 N.E.2d 446, 455 (Ind. 1999) (quoting N.Y. Times Co. v.

      Sullivan, 376 U.S. 254, 285 (1964)). This rule of independent review—

      conducted de novo—“assigns to judges a constitutional responsibility that cannot

      be delegated to the trier of fact,” no matter whether the trier of fact is a judge or

      a jury. Brewington, 7 N.E.3d at 955 (quoting Bandido’s, 712 N.E.2d at 455). The

      de novo approach has been applied to claims under the First Amendment, see id.,

      and we see no reason it would not apply to claims under Article 1, Section 9.


      Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019         Page 5 of 23
                                  Sufficiency of the Evidence
[9]   Turning to the sufficiency challenge, McGuire asserts she failed to transmit

      messages to Officer Dodd. Yet, there is no question McGuire engaged in

      transmission. There was transmission the moment McGuire posted online,

      broadcasting to a virtual room containing more than 1,000 people. McGuire

      appears to be challenging the sufficiency of evidence on the basis that Officer

      Dodd was not inside the virtual room, and it was someone else who passed

      along the messages “without permission.” Br. of Appellant at 6. Yet, to be

      criminally liable under the statute, McGuire need not have directly transmitted

      the messages to the target of her harassment. Rather, McGuire must have

      transmitted the messages “to a person,” I.C. § 35-45-2-2(a)(4)(B), which she did.

      To the extent McGuire is alleging she lacked the intent to harass, annoy, or

      alarm Officer Dodd because the messages were not directly available to him,

      “[f]or a person to commit an act with the intent to harass, annoy, or alarm

      another person, common sense informs that the person must have a subjective

      expectation that the offending conduct will likely come to the attention of the

      person targeted for the harassment, annoyance, or alarm.” A.B. v. State, 885

      N.E.2d 1223, 1226 (Ind. 2008). Here, McGuire wrote “Everyone share” in a

      post suggesting Officer Dodd kill himself. Ex. 1. McGuire also addressed

      Officer Dodd: “DO SUMTHN . . . if u don’t know now u kno.” Id. She also

      wrote: “I’m sure I’ll get another visit from KPD over my post.” Id. Thus, in

      light of the content of the messages, there is sufficient evidence to conclude that




      Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019       Page 6 of 23
       McGuire had the expectation that the offending conduct would come to the

       attention of Officer Dodd when she transmitted the messages online.


[10]   McGuire also asserts her “Facebook postings do not qualify as obscene.” Br. of

       Appellant at 6. Yet, the instant statute, written in the disjunctive, criminalizes

       the transmission of “an obscene message or indecent or profane words to a

       person,” I.C. § 35-45-2-2(a)(4)(B)—and we discern no failure of proof

       concerning the transmission of indecent or profane words. Indeed, McGuire

       issued a profanity-laced threat and urged Officer Dodd to commit suicide.


[11]   Finally, to the extent McGuire challenges the sufficiency of evidence regarding

       intent to engage in “legitimate communication,” this inquiry collapses into the

       next issue—the constitutional challenge to the conviction. This is because we

       have interpreted the statutory phrase “no intent of legitimate communication”

       as creating a “specific intent requirement preclud[ing] the application of this

       statute to constitutionally protected legitimate communications.” Kinney v.

       State, 404 N.E.2d 49, 51 (Ind. Ct. App. 1980). We therefore turn now to the

       protections found in the First Amendment and Article 1, Section 9, while

       beginning our inquiry into whether the posts constituted proscribable speech.


                                            First Amendment
[12]   Upon a First Amendment challenge to a conviction, we evaluate whether the

       speech fell within an “unprotected category.” See Price, 622 N.E.2d at 965.

       Indeed, certain content is “constitutionally proscribable.” R.A.V. v. City of St.

       Paul, Minn., 505 U.S. 377, 383 (1992) (emphasis removed). One proscribable

       Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019       Page 7 of 23
category is that which constitutes a true threat, Virginia v. Black, 538 U.S. 343,

359 (2003), for which there are “two necessary elements: that the speaker intend

his communications to put his targets in fear for their safety, and that the

communications were likely to actually cause such fear in a reasonable person

similarly situated to the target,” Brewington, 7 N.E.3d at 964. Here, McGuire

repeatedly posted about Officer Dodd. She accused Officer Dodd of killing her

son, urged him to commit suicide, and suggested law enforcement “better

watch out this mother is on a rampage and ready to shoot to kill.” Ex. 1. This

speech amounted to a constitutionally proscribable true threat. See Brewington,

7 N.E.3d at 978 (noting the First Amendment “does not permit threats against

the safety and security of any American, even public officials, regardless of

whether those threats are accompanied by some protected criticism”). Thus,

we conclude the instant speech could be regulated consistent with federal

constitutional principles.4 Moreover, in view of the true threat contained in the

speech, there is sufficient evidence McGuire lacked the intent to engage in

“legitimate communication” with regard to the United States Constitution.




4
  Consistent with the First Amendment, threatening speech is also regulated under the Indiana statute
criminalizing Intimidation. See I.C. § 35-45-2-1. Indeed, under the Intimidation statute, where a true threat
involves “threat of force against a human being,” I.C. § 35-31.5-2-138, the threat is chargeable as a Level 6
felony, see I.C. § 35-45-2-1(b)(1)(A). Moreover, the Intimidation statute specifically contemplates threatening
messages posted “electronically, including on a social networking web site.” I.C. § 35-45-2-1(c). It appears,
then, that McGuire could have faced a charge of Level 6 felony Intimidation. Nevertheless, prosecutors have
discretion to choose their charges, see Hendrix v. State, 759 N.E.2d 1045, 1047 (Ind. 2001)—and, for whatever
reason, a decision was made to charge McGuire with a lesser misdemeanor offense.

Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019                               Page 8 of 23
                                          Article 1, Section 9
[13]   Courts employ a two-step inquiry for challenges under Article 1, Section 9.

       “First, a reviewing court must determine whether state action has restricted a

       claimant’s expressive activity. Second, if it has, the court must decide whether

       the restricted activity constituted an ‘abuse’ of the right to speak.” Whittington

       v. State, 669 N.E.2d 1363, 1367 (Ind. 1996). As to the first part, the State has

       restricted McGuire’s expression because she was prosecuted for Harassment

       based upon her online posts. See id. at 1370. As to the second part, the inquiry

       “hinges on whether the restricted expression constituted political speech.”

       Barnes v. State, 946 N.E.2d 572, 577 (Ind. 2011), adhered to on reh’g, superseded by

       statute on other grounds. Speech is political “if its point is to comment on

       government action, whether applauding an old policy or proposing a new one,

       or . . . criticizing the conduct of an official acting under color of law.”

       Whittington, 669 N.E.2d at 1370. If the expression was political speech, we

       apply a higher level of review. Barnes, 946 N.E.2d at 577. However, if the

       expression is ambiguous when viewed in context, we instead “evaluate the

       constitutionality of any state-imposed restriction of the expression under

       standard rationality review.” Whittington, 669 N.E.2d at 1370. Under this

       lower level of review, we “determin[e] whether the state could reasonably have

       concluded that [the] expressive activity . . . was an ‘abuse’ of the right to speak

       or was, in other words, a threat to peace, safety, and well-being.” Id. at 1371.


[14]   “[W]here the defendant’s speech was directed exclusively at state actors and

       focused exclusively on the actions or conduct of state actors, we have

       Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019           Page 9 of 23
       repeatedly concluded that the speech is political.” Williams v. State, 59 N.E.3d

       287, 294 (Ind. Ct. App. 2016) (collecting cases). However, “even when coupled

       with political statements,” speech is not necessarily unambiguously political.

       Id.; see, e.g., Anderson v. State, 881 N.E.2d 86, 90 (Ind. Ct. App. 2008)

       (concluding speech directed toward police officers was not unambiguously

       political where the defendant “assert[ed] a right to be where he was,” a

       statement that was “ambiguous as to whether [the defendant] was commenting

       on his own conduct or that of the officers”).


[15]   Here, McGuire engaged in some political expression in that parts of the posts

       concerned tragic events arising from a traffic stop involving Officer Dodd. Yet,

       McGuire also said she was “coming for” law enforcement and was “on a

       rampage and ready to shoot to kill.” Ex. 1. Moreover, McGuire repeatedly

       directed posts toward Officer Dodd and suggested that he commit suicide. We

       conclude, when viewed in context, the instant speech was not unambiguously

       political. This conclusion aligns with that of the trial court, which remarked

       that “there is a fine line between a [constitutional] right and harassment” and

       McGuire had “cross[ed] that line.” Tr. Vol. II at 32. Because the speech was

       not unambiguously political, we apply standard rationality review. See

       Whittington, 669 N.E.2d at 1370. Upon such review, we conclude the State—in

       electing to prosecute McGuire—could have reasonably concluded that the

       speech posed a threat to peace, safety, and well-being. See id. at 1371. Thus,

       the speech could be regulated without running afoul of Article 1, Section 9.

       Moreover, because the speech was not unambiguously political and posed a


       Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019         Page 10 of 23
       threat to safety, there is sufficient evidence McGuire lacked the intent to engage

       in “legitimate communication” with regard to the Indiana Constitution.


[16]   We discern no failure of proof. The conviction concerned proscribable speech.


[17]   Affirmed.


       Riley, J., concurs.
       Pyle, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019     Page 11 of 23
                                                    IN THE
           COURT OF APPEALS OF INDIANA

       Constance J. McGuire,                                       Court of Appeals Case No.
                                                                   18A-CR-2554
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellees-Plaintiff.




       Pyle, Judge, dissenting.


[18]   There is no question that McGuire’s Facebook posts are distasteful, crude, and

       worrisome. However, I respectfully dissent from my colleagues’ opinion

       affirming McGuire’s conviction for class B misdemeanor harassment. This

       dissent does not condone the disturbing, crass statements made by McGuire

       about Officer Dodd. However, our primary duty is to uphold the principles

       enshrined in the Federal and State Constitutions.5 When a statute falls short,

       this Court has a duty to reverse a conviction, even if it might leave a sour taste

       in one’s mouth.




       5
        Because I believe the harassment statute is unconstitutionally overbroad under the First and Fourteenth
       Amendments, I need not address any arguments raised under the Indiana Constitution.

       Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019                            Page 12 of 23
[19]   My colleagues assert that there is sufficient evidence that McGuire had “no

       intent of legitimate communication.” IND. CODE § 35-45-2-2(a). They also

       attempt to apply the “true threat” analysis to the facts of this case. However, I

       believe the State has fallen short of proving beyond a reasonable doubt that

       McGuire’s intent to communicate was not legitimate or that they were

       “indecent” or “profane.” I.C. § 35-45-2-2(a)(4)(B). In addition, the “true

       threat” analysis does not apply to this case because it applies to cases of

       intimidation, a statute which prohibits threats. Throughout this short bench

       trial, the State presented a case focused on proving that McGuire threatened

       Officer Dodd and that it was concerned that the “threats” might be carried out.

       While the concern may very well have been warranted, the State had a statute

       available to it designed to punish “true threats” against Officer Dodd. It could

       have charged McGuire with intimidation. I.C. § 35-45-2-1. Indiana’s

       intimidation statute prohibits persons from communicating threats. In fact, it

       specifically defines eight separate types of threats that may be prosecuted. I.C. §

       35-45-2-1(d)(1)-(8). Instead, the State chose to prosecute McGuire under

       Indiana’s harassment statute; a statute that does not mention anywhere in its text

       the word “threat,” and a statute that does not define the statutory elements

       concerning what is “legitimate communication,” “indecent,” or “profane

       words.” I.C. § 35-45-2-2(a)(4)(B). Because the State charged McGuire with

       harassment, it was required to prove these elements beyond a reasonable doubt.

       In large part, the State failed because the harassment statute is

       unconstitutionally overbroad. As a result, the State presented insufficient

       evidence proving that McGuire’s intent was not an effort at “legitimate
       Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019      Page 13 of 23
       communication” or that her words were “indecent” or “profane” under the

       First Amendment. As written, Indiana’s harassment statute’s failure to limit

       itself to unprotected categories of speech allows constitutionally protected

       speech, even though offensive, to be criminally prosecuted.


[20]   The First Amendment of our Constitution protects many forms of speech that

       are indecent and profane. “From 1791 to the present, . . . , our society, like

       other free but civilized societies, has permitted restrictions upon the content of

       speech in a few limited areas, which are ‘of such slight social value as a step to

       truth that any benefit that may be derived from them is clearly outweighed by

       the social interest in order and morality.’” R.A.V. v. City of St. Paul, Minn, 505

       U.S. 377, 383 (1992) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572

       (1942)). Examples of areas of speech which may be regulated are obscenity,

       Miller v. California, 413 U.S. 15 (1973), child pornography, New York v. Ferber,

       458 U.S. 747 (1982), fighting words, Chaplinsky, 315 U.S. 568, defamation, New

       York Times v. Sullivan, 376 U.S. 254 (1964), and incitement to violence,

       Brandenburg v. Ohio, 395 U.S. 444 (1969). But, the Supreme Court has

       repeatedly indicated that statutes seeking to restrict speech within these

       categories may not be complete bans on that type of speech. Gooding v. Wilson,

       405 U.S. 518, 521-522 (1972); R.A.V., 505 U.S. at 384. Statutes must allow for

       such speech to be considered in their context. Id. In addition, these statutes

       must be carefully drawn or construed to punish only unprotected speech and

       not speech that is protected expression. Id.




       Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019       Page 14 of 23
[21]   These principles were applied in Gooding, where a man named Johnny Wilson

       picketed a building located in Georgia and interfered with the recruitment of

       soldiers. When police officers sought to intervene, Wilson assaulted the

       officers. During the altercation, Wilson was heard to say to a police officer,

       “‘White son of a bitch, I’ll kill you’ and ‘you son of a bitch, I’ll choke you to

       death.’” Wilson v. State, 223 Ga. 531, 156 S.E.2d 446, 534 (Ga. 1967), reh’g

       denied, cert. denied. In addition, Wilson stated, “‘You son of a bitch, if you ever

       put your hands on me again, I’ll cut you all to pieces.’” Id. He was

       subsequently arrested and charged with assault and battery, but, relevant to this

       case, he was also charged under a Georgia statute which read as follows:


               [a]ny person who shall, without provocation, use to or of
               another, and in his presence . . . opprobrious words or abusive
               language, tending to cause a breach of the peace . . . shall be
               guilty of a misdemeanor.

       Gooding, 405 U.S. at 519. Wilson was convicted on all counts.


[22]   After a series of appeals, the United States Supreme Court held that the Georgia

       statute was unconstitutionally overbroad and vague under the First and

       Fourteenth Amendments. Specifically, the Court noted that the First

       Amendment prohibits states from punishing the use of words or language that

       are not within narrowly limited classes of speech. Further, within the classes of

       speech that may be prohibited, the efforts at prohibition must be narrowly

       drawn. “In other words, the statute must be carefully drawn or be

       authoritatively construed to punish only unprotected speech and not be

       susceptible of application to protected expression. ‘Because First Amendment

       Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019       Page 15 of 23
       freedoms need breathing space to survive, government may regulate in the area

       with narrow specificity.’” Id. at 522 (quoting NAACP v. Button, 371 U.S. 415, 433

       (1963) (emphasis added)).


[23]   These principles were again applied two years later in Lewis v. City of New

       Orleans, 415 U.S. 130 (1974). In that case, a woman by the name of Mallie

       Lewis became involved in a dispute with a New Orleans police officer over the

       arrest of her son. Lewis was subsequently alleged to have yelled at the police

       officer, “[Y]ou god damn m.f. police – I am going to Giarrusso (the police

       superintendent) to see about this.” Lewis, 415 U.S. at 138 (quoting Appellant’s

       Br. 8). Lewis was arrested and charged under a city ordinance which read as

       follows:


               It shall be unlawful and a breach of the peace for any person
               wantonly to curse or revile or to use obscene or opprobrious
               language toward or with reference to any member of the city
               police while in the actual performance of his duty.

       Lewis, 415 U.S. at 132. After a bench trial, Lewis was convicted, and she

       appealed.


[24]   The Supreme Court found that, while the Louisiana Supreme Court had

       construed the ordinance as applying to “fighting words,” the ordinance was

       susceptible of application to protected speech. Id. It found that the “fighting

       words” doctrine applies to words “‘which by their very utterance inflict injury

       or tend to incite an immediate breach of peace, . . . .’” Id. (quoting Chaplinsky,

       315 U.S. at 572). Specifically, the Supreme Court found that the word

       “opprobrious,” which embraced words “conveying or intended to convey
       Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019      Page 16 of 23
       disgrace,” embraces words that do not fall within the fighting words doctrine.

       Lewis, 415 U.S. at 133. It did not matter that the words Lewis uttered “might

       have been constitutionally prohibited under a narrowly and precisely drawn

       statute.” Id. (emphasis added). If the statute or ordinance, as authoritatively

       construed, is susceptible of application to protected speech, although vulgar and

       offensive, it is overbroad and facially invalid under the First and Fourteenth

       Amendments.


[25]   In this case, I believe that Indiana’s harassment statute is unconstitutionally

       overbroad and facially invalid because it is susceptible of prohibiting protected

       expression. Here, the State alleged in its charging information that McGuire,

       without any intent of legitimate communication, intended to harass, annoy, or

       alarm Officer Dodd by posting “an obscene message or indecent or profane words

       to Jeramie Dodd, . . . .” (App. Vol. II, pg. 7) (emphasis added). Except for

       obscenity,6 Indiana’s harassment statute fails to narrowly define the terms

       “legitimate communication,” “indecent,” or “profane words” in a way that

       does not include constitutionally protected speech. I.C. § 35-45-2-2(a)(4)(B).

       Concerning the word “indecent,” another panel of this Court, which was




       6
           Under Indiana’s Harassment statute, a message is obscene if:

                  (1) the average person, applying contemporary community standards, finds that the dominant
                      theme of the message, taken as a whole, appeals to the prurient interest in sex;
                  (2) the message refers to sexual conduct in a patently offensive way; and
                  (3) the message, taken as a whole, lacks serious artistic, literary, political, or scientific value.
       IND. CODE § 35-45-2-2(b).



       Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019                                     Page 17 of 23
construing the meaning of “indecent” within the context of the now repealed

indecent telephone call statute, determined that it “refers to nonconformance

with accepted standards of morality.” Hott v. State, 400 N.E.2d 206, 208 (Ind.

Ct. App. 1980) (offending communication made was via a telephone call to the

chief of police at his home at 11:00 p.m.). However, McGuire was not charged

under the telephone call portion of the harassment statute.7 Moreover, citing

Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978),

the Hott Court noted as follows:


         The Pacifica Foundation court, . . . , made a further distinction
         that whether a communication is protected under the First
         Amendment depends also upon where and how it is made. It
         noted that governmental entities may constitutionally act to
         prohibit unwanted intrusions into the privacy of the home of
         unwelcome views and ideas, which include harassing telephone
         calls, and the use of obscene or profane language on the telephone,
         the natural consequence of which is to abuse the hearer. Such
         conduct, while it may be protected elsewhere, will not be protected
         where there is a showing that substantial privacy interests are
         being invaded.

Hott, 400 N.E.2d at 208 (emphasis added). In other words, a message

communicated into a person’s home may be considered “indecent” partly

because it is transmitted into the privacy of one’s home. A situation that did not




7
  To the extent that Kinney v. State, 404 N.E.2d 49 (Ind. Ct. App. 1980) might be cited as holding that
Indiana’s harassment statute is not unconstitutionally overbroad, I would respectfully disagree. In that case,
Kinney argued that the statute was unconstitutionally vague, not overbroad. Id. at 50. These are separate and
distinct constitutional doctrines. Even if this were not so, Kinney would not be applicable to this case because
the subsection under which McGuire was charged did not exist at the time that case was handed down. In
1996, our General Assembly amended the statute to include speech communicated over a computer network.
1996 Ind. Legis. Serv. P.L. 216-1996 (H.E.A. 1005) (West).

Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019                               Page 18 of 23
       occur here. I am not aware of any other Indiana cases that define the statutory

       terms in the computer network subsection.


[26]   In this case, McGuire’s conviction runs afoul of the Constitution because the

       statute is overbroad; its lack of definition allows protected speech to be

       prosecuted. In addition, the State presented no evidence that McGuire’s speech

       fit within a category which permits restriction by the government. The State’s

       case consisted of two witnesses. The first was Joreda Maddox. She viewed

       McGuire’s posts on Facebook and reported them to the Kokomo Police

       Department because she was concerned about the threats that had been made.

       (Tr. 7). The second witness was Officer Dodd. He testified that he believed

       McGuire’s anger stemmed from the death of her son, who had consumed

       methamphetamine during a traffic stop at which Officer Dodd was present.

       (Tr. 10). Since that time, Officer Dodd testified he has been “plagued with

       threats and other incidents from Mrs. McGuire.” (Tr. 10) (emphasis added).

       McGuire, representing herself, presented the testimony of Ted Driver who

       stated that McGuire had pursued a wrongful death claim. McGuire also

       testified that she believed her Facebook posts were set to private and were only

       related to the death of her son. (Tr. 21-22, 24-27). None of this evidence fits

       into a category of unprotected speech.


[27]   It is clear from the record that the State sought to prosecute McGuire because it

       was worried about whether her Facebook posts naming Officer Dodd would

       result in violence. While the State’s concern was warranted, we must still

       follow the law concerning First Amendment rights. It is well settled that “the
       Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019      Page 19 of 23
       constitutional guarantees of free speech and free press do not permit a State to

       forbid or proscribe advocacy of the use of force or law violation except where

       such advocacy is directed to inciting or producing imminent lawless action and is

       likely to incite or produce such action.” Brandenburg, 395 U.S. at 447 (emphasis

       added). There was simply no evidence introduced at trial that McGuire’s

       Facebook posts were directed at producing imminent lawless action and that it

       was likely to occur.


[28]   In addition, the text of the statute makes no attempt to carefully limit its reach

       to speech calling for imminent lawless action. As for any other category of

       restricted speech, the State offered no evidence that the Facebook posts were

       obscene (as defined by the statute and Miller, 413 U.S. 15), child pornography

       (Ferber, 458 U.S. 747), fighting words (Chaplinsky, 315 U.S. 568), or defamation

       (New York Times, 376 U.S. 254). One might attempt to argue that the Facebook

       posts fit within the definition of “indecent” (as not conforming with accepted

       standards of morality) as construed by Hott, 400 N.E.2d at 208. However, Hott

       is easily distinguished because McGuire’s speech was communicated via the

       internet through a Facebook post and not a telephone call specifically directed

       to Officer Dodd at his home. Id.


[29]   My colleagues cite to Virginia v. Black, 538 U.S. 343 (2003) and Brewington v.

       State, 7 N.E.3d 946 (Ind. 2014) for the proposition that “true threats” may be

       prohibited. While this category of speech may be prohibited, the “true threat”

       analysis simply does not apply to this case and the State did not present

       sufficient evidence of McGuire’s intent. As Justice O’Connor stated in Black,

       Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019       Page 20 of 23
“Intimidation in the constitutionally proscribable sense of the word is a type of

true threat, where a speaker directs a threat to a person or group of persons with

the intent of placing the victim in fear of bodily harm or death.” Id. at 360

(emphasis added). If my colleagues believe that McGuire’s comments were a

“true threat,” then they must acknowledge that the State’s concern was the

intimidating nature of McGuire’s Facebook posts; in other words, the

likelihood that she or someone else would carry out those threats. See

Brandenburg, 395 U.S. at 447 (requiring proof that the threat of imminent

lawless action was also likely to occur). Yet, the State’s decision to charge

McGuire with harassment and not under Indiana’s intimidation statute is

extremely telling about its own belief in the lack of evidence surrounding

McGuire’s intent. In addition, Black is factually and legally distinguishable

from this case. Black dealt with expressive conduct, not speech. It was a

consolidated case addressing whether, consistent with the First Amendment, a

state could prohibit cross burning; the Court held that the State of Virginia

could ban cross burning carried out with the intent to intimidate. There are very

few images in America soaked with an intent to terrorize and intimidate as the

Ku Klux Klan’s burning cross. As a result, there was no question of the

defendants’ intent to intimidate in those cases. However, despite their

reprehensible conduct, none of the three defendants in Black were prosecuted

for their clearly threatening comments. Id. at 349 (e.g. “. . . he would love to

take a .30/.30 and just random[ly] shoot the blacks.”). In this case, McGuire

was not prosecuted for her conduct, but for her speech. Speech, which under


Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019       Page 21 of 23
       the harassment statute, was not considered threatening or intimidating, but was

       indecent or profane.


[30]   The distinction between a charge of intimidation8 (where there must be proof of

       a person’s threat with intent to place another person in fear of coerced conduct,

       retaliation, or that the threat will be carried out) and harassment (where there is

       only required proof of a person’s intent to harass, annoy, or alarm another

       person but with no intent of legitimate communication) is very important.

       Indiana’s intimidation statute clearly defines what constitutes a “threat.” I.C. §

       35-45-2-1(d). Each of the definitions in the intimidation statute defines words

       or actions that are outside of the protection provided by the First Amendment.

       This is why the “true threat” analysis in Black and Brewington applies to persons

       charged with intimidation, not harassment. The text of Indiana’s harassment

       statute does not address any “threat” communicated to another person; the

       word simply does not appear anywhere in the statute. Indeed, the statute’s

       infirmity lies in its lack of definition. The definition of what is considered

       “legitimate communication” is critical. If “legitimate communication” is

       protected speech, then the statute fails to narrowly define (and we have not

       adequately construed) the terms “indecent” and “profane words” in such a way

       so as to prohibit only unprotected speech.




       8
           IND. CODE § 35-45-2-1.


       Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019       Page 22 of 23
[31]   Because I believe IND. CODE § 35-45-2-2(a)(4)(B) is unconstitutionally

       overbroad and no evidence was introduced showing McGuire’s Facebook posts

       fit within an unprotected category, I respectfully dissent from my colleagues’

       opinion affirming McGuire’s conviction for harassment as a class B

       misdemeanor.




       Court of Appeals of Indiana | Opinion 18A-CR-2554 | August 27, 2019      Page 23 of 23
