Internet trolling, or posting with an intent to annoy readers, is almost as old as the Internet itself. Although some trolling may be distasteful, a recent case from Oregon, State v. Hirschman, 279 Or App 328 (2016), <http://www.publications.ojd.state.or.us/docs/A153610.pdf>, confirms that even when such fundamental functions as elections are the target of a troll, it is likely to be deemed free speech.
Shortly before the 2010 election, Mr. Hirschman posted an advertisement on Craigslist, which offered to pay voters to allow him to mark their ballots. He did not appear at the ballot drop site as he stated he would, nor did he attempt to actually buy ballots. He informed two investigators from the Department of Justice that his intent was to mock the political system and comment on the prevalent vulgarity of the Internet.
The state charged Mr. Hirschman with violating a statute prohibiting the offering to buy or sell ballots. He argued in defense (1) that purchasing required the buyer to actually acquire the ballot as opposed to simply being allowed to mark it for the voter to submit; and (2) that offering required an intent to actually complete the purchase. He also argued (3) that nobody could reasonably have expected him to actually want to buy ballots, and (4) that if the statute did not require intent; it violated the Speech Clause of the Oregon Constitution. The state agreed that Mr. Hirschman’s intent was “political shenanigans” and to be an Internet troll. It also acknowledged that the ad was not the first satirical post on the Craigslist page in question.
The Court of Appeals first ruled on whether the statute prohibited Mr. Hirschman’s ad. It decided that the ad described an intent to take possession of the ballot long enough to mark it, which was enough to be considered a purchase. It also ruled that the ad could reasonably be construed as actually intending to complete the purchase as they interpreted the statute, so it could be construed as an offer.
Although the ruling was that the statute itself had been violated, the question of whether the statute violated the state constitution remained. Oregon’s free speech guarantee is stronger than the federal speech guarantee. Some restrictions that have been found not to violate the First Amendment have been ruled to violate the state speech right.
Oregon courts have interpreted the state constitution in a very different manner than the First Amendment and have developed a very different framework for analyzing restrictions on speech. Unfortunately, the court’s analysis may be a little difficult for some nonlawyers to grasp. The primary factor the courts consider is what the statute in question attempts to regulate. (1) If a statute is directed at the content of a statement, then it is allowed only if it falls within a “historical exception,” meaning a restriction that was allowed at the time of Oregon’s statehood. (2) If the statute targets effects of speech, then it is allowed unless it significantly exceeds the targeted effect and its scope cannot be adequately narrowed. (3) Finally, if the statute targets only conduct, but incidentally affects speech, it is usually valid, but its application to speech in particular cases can be challenged.
The statute in question prohibited “offers” to sell or buy votes. “Offer” was interpreted to mean the advertisement – a statement that a reasonable person would understand as an expression of intent to complete the transaction. The Court of Appeals also noted that although it was obvious that the intent of the statute was to prevent corruption, it made no attempt to limit its scope to cases in which corruption was at issue. For these reasons, the law was ruled to target the speech itself.
Because the law targeted speech itself, the Court of Appeals examined whether it was similar to restrictions on speech that existed in the mid-19th century. At the time, the law prohibited (and still prohibits) soliciting a crime, which is offering a payment or other consideration to someone for committing a crime. This was distinguished from the vote-buying statute because solicitation traditionally required proof that the solicitor intended the crime to be committed, exactly what Mr. Hirschman did not intend. Omitting that intent was too big a difference for the court to overlook.
Solicitation was the only historical restriction proposed by the state as a justification for the statute, but the state did also argue that the general interest in protecting the electoral system justified regulations. The Court of Appeals noted that the Oregon Supreme Court had rejected a similar argument in a case involving campaign contribution regulations. As a result, it considered the argument foreclosed and rejected it in this case. The court ruled, overall, that the law was invalid because no legitimate historical restriction existed. Mr. Hirschman’s right to troll the Internet was upheld.