Should people be able to speak freely on the internet without worrying about whether those most easily offended can report them to the police for prosecution? Should courts be able to prohibit us from speaking about others on social media? 

Last week, the OCPA Center for Law & Liberty filed a brief in the Oklahoma Court of Criminal Appeals to answer those questions. 

When the legal center was established, our intent was not to get involved in criminal cases. But when we heard about a case where a man is serving time in prison for stalking, when all he did was publish a YouTube video where he spoke about his ex-wife (in admittedly less-than-flattering terms), the free speech implications were too big to pass up. Defending the rights of Oklahomans to speak their minds is a big priority for our legal center. 

The facts of the case were simple. The defendant had a protective order issued against him from his ex-wife which prohibited him from mentioning her on social media. The order was an unconstitutional prior restraint. Regardless, the defendant published a YouTube video where he ranted for 40 minutes about his ex-wife, the judicial system, and more. While his speech isn’t something I’d defend on moral terms, there’s no doubt it was legally defensible.

He was charged with violating Oklahoma’s stalking statute and sentenced to five years in prison, with part of it suspended. Let that sink in. Right now, a man is in prison for publishing a video on YouTube, the most popular streaming platform in the world. 

OCPA’s brief, building on our work analyzing cases before the Oklahoma Supreme Court, argued that the defendant’s speech was not directed at his ex-wife but at the larger internet-using population. He didn’t send her the video, but the state took the position that talking about his ex-wife was the same thing as directing his speech toward her. The State further argued the defendant was convicted for his conduct, not for speech—as if the act of clicking “publish” removes all free-speech protections. 

If prosecutors and judges can punish us for speech that others find offensive simply because some act was attached, the First Amendment is meaningless. There is no speech that doesn’t require at least some action. The Court of Criminal Appeals has the ability to right a wrong and issue guidance to prosecutors and judges who would seek to censor speech in the name of public safety.