Ill-Advised Student YouTube Video Leads to Conviction For Misusing Computerized Communication System–In re Kaleb K.
Kaleb, a high school student, allegedly created a YouTube video with a rap song about his Spanish teacher that contained “crude and vulgar language” about the teacher. He was found guilty of disorderly conduct and unlawful use of a “computerized communication system.” He appealed.
Is the speech protected speech?: On appeal, the court says that the prosecutor had no evidence or argument that the song was constitutionally unprotected speech. When Kaleb argued in the trial court that the speech was protected, the prosecutor first claimed she was “not prepared” to address this issue. Then the prosecutor argued, in summary fashion, that the video constituted “obscenity, fighting words, and hate speech.” On appeal the State switches tracks and argued that the video was defamatory. [??] This argument goes nowhere, and the court says that the speech was protected and thus could not form the basis of a disorderly conduct conviction.
Is Kaleb guilty of unlawfully using a computerized communication system?: Strangely, this does not result in the whole conviction getting tossed. Kaleb was convicted of unlawful use of a computerized communication system. The statute (Wis. Stat. 947.0125(2)(d)) covered anyone who:
[w]ith intent to frighten, intimidate, threaten or abuse another person, sends a message on an electronic mail or other computerized communication system with the reasonable expectation that the person will receive the message and in that the message uses any obscene, lewd, or profane language or suggests any lewd or lascivious act.
“Message” is broadly defined as “any transfer of signs, signals, writings, images, sounds, data or intelligence of any nature.”
The court says that just because the speech was protected does not necessarily mean that it cannot otherwise form the basis of liability under the “unlawful use of a computerized communications system” statute. Kaleb also argued that he did not send a message to any single person (singular) and also tried to keep the video “on the down low” (i.e., did not intend that it would reach the teacher). The court rejects both of these arguments, saying that: (1) posting content online and not sending it directly could fall under the statute (2) as could a generalized communication that’s not directed specifically to someone.
Sigh. Another criminal prosecution against a high school student based on his or her online speech. Who in their right mind would sit around and think “hey, let’s prosecute some kid for posting a borderline YouTube video!” (See also “High Schooler’s Facebook Post Can Constitute the Crime of Menacing – In re P.T.“)
The prosecutor should have known better, and admitting to being “unprepared” to address the defendant’s First Amendment arguments was a serious red flag. The magistrate who presided over the case at the lower level should have also known better, but the magistrate’s comments were oblivious to the First Amendment concerns:
[I]f this is going to be a test case, I think it’s a pretty poor one to take up to the Supreme Court if high school students are going to be allowed to make videos that are this abhorrent.
Frankly, it’s one of the worst things I have ever seen, and I’ve seen a lot of bad things in juvenile court.
And if this is going to be protected behavior and all the high school kids in Wisconsin and around the country are going to be able to do this, I really have a very difficult time believing that.
While it’s possible that Kaleb could be subject to school discipline for posting the video, that’s a totally different question from whether Kaleb could be held liable under a criminal statute. Of course high school students should be “allowed to make videos that are . . . abhorrent.” That’s what the First Amendment is all about. (See Eric’s comment below.)
As for the computerized communication statute, I’m not really sure what it’s getting at, and its language is a jumble of impossibly vague (by First Amendment standards) standards. It’s aimed at the use of email (etc.) to intimidate, or abuse (??) people via a message that has obscene, lewd or profane (??) language? The statute has overbreadth written all over it. (See, e.g., the recent Texas appellate decision striking down the statute aimed at prohibiting sexts with minors.)
The court concludes that Kaleb could be prosecuted under the statute despite the speech being protected, because he is being held liable for “non speech elements.” However, the court never really identifies what those elements are. It’s not as if Kaleb went on a campaign of harassment. To the contrary, he posted a single message that consists of pure speech. It wasn’t a true threat, fighting words, obscene, or defamatory. Without getting into the nuances of when something crosses the line from protected speech to harassment or stalking, this isn’t even a close question. The appeals court did the right thing on the first count but it should have reversed the second as well, and in the process it had some stern words for both the prosecutor and the magistrate judge.
We’ve seen various movements to protect school administrators and teachers from online bullying by students. See, e.g., Maryland AG’s deal with Facebook (“Facebook Opens Takedown Hotline for Public School Officials“), and the lawsuits by principals and administrators against students that we’ve blogged about repeatedly (the Matot case was the latest iteration). This looks like a troubling variation of these efforts.
Eric’s Comment: I can’t condone students posting hurtful YouTube videos, but an even worse development is criminalizing teens for doing very typical teen pranks. Our republic will eventually implode if we teach teens that they don’t have free speech rights. They will grow up into adults who don’t believe they can speak freely, and our democracy won’t function properly when that happens.
Case citation: In re Kaleb K., 2013 WL 6182562 (Wis. Ct. App. Nov. 27, 2013)