Criminal harassment / ethnic intimidation prosecution for nasty e-mails to columnist

Volokh, Eugene VOLOKH at law.ucla.edu
Fri Oct 31 15:23:35 PDT 2008


I just got the text of an interesting and nearly unreported-on decision
from an Ohio trial court. Michael Coon wrote three e-mails to Amjad
Hussain <http://www.utoledo.edu/offices/trustees/members/hussain.html> ,
a Muslim columnist for the Toledo Blade, who was apparently born in
Pakistan. (Hussain is a heart surgeon at the University of Toledo, where
he has worked for over 30 years.) The e-mails were insulting, ranting,
and vitriolically hostile to Muslims and, at times, Middle Easterners.
But as I read them <http://volokh.com/files/coon.tif> , they did not
contain any overt threats to Hussein. Nor did the prosecution's brief
<http://volokh.com/files/coonbriefp.tif>  point to any specific supposed
threats, though it often spoke of Coon's "motive to harass, abuse, and
threaten Dr. Hussain."

Nonetheless, Coon was prosecuted for telecommunications harassment
<http://codes.ohio.gov/orc/2917.21> , aggravated by its being ethnic
intimidation <http://codes.ohio.gov/orc/2927.12> . The prosecution seems
to have at first argued that Coon violated 2917.21(A)(5) by
communicating with Hussain after Hussain had told him to stop e-mailing
him; but that line of reasoning was apparently dropped, seemingly
because Hussain had never made such a demand personally
<http://volokh.com/files/coonbriefd.tif>  (though apparently the
Sheriff's Office did make such a demand, perhaps at Hussain's behest).
The prosecution instead focused on 2917.21(B), which bars communicating
with a person (via e-mail, phone, and the like) "with purpose to abuse,
threaten, or harass another person." 

The judge <http://volokh.com/files/coon.tif>  rejected this theory, on
the grounds that "although angry and intolerant, read in context, the
intent established is one of political discourse," and the speech was
thus "protected political speech." Any thoughts on whether the judge's
decision was likely correct on the facts? On whether the "purpose to
abuse ... or harass" statute is unconstitutionally overbroad? On whether
the "stop e-mailing me" statute, if it had been properly triggered,
would be constitutional under Rowan v. Post Office Dep't?

By the way, if the links above don't work, the key documents are:

The court decision: http://volokh.com/files/coon.tif

The government's memorandum (quite badly written, I think):
http://volokh.com/files/coonbriefp.tif

The defense memorandum: http://volokh.com/files/coonbriefd.tif

 

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