Existing Ohio law (section 2903.211 (A)) criminalizes using a computer to post a message that urges or incites anyone to engage in a course of conduct to cause another person “mental distress.” “Mental distress” is defined to include a condition that would normally require mental health services.
Ohio House Bill 74 makes two important changes to the existing law. First, it would make it illegal to engage in speech with the purpose of causing emotional distress without any element of conduct as part of the crime. Second, it amends the existing section to broaden the definition of “course of conduct” to include written communication. This change appears to criminalize speech if it causes emotional distress regardless of the purpose of the speaker since this section does not include an element of purpose. The bill also broadens the class of people who can suffer mental injury to include a person’s immediate family.
A violation of the law is deemed a crime of menacing by stalking.
The bill died in the Senate.
Government may criminalize speech that rises to the level of harassment, stalking or a genuine threat, but the crime must be defined narrowly and precisely so it does not criminalize speech protected by the First Amendment. This legislation fails to adequately distinguish between constitutionally protected speech, whether it is intended to cause emotional distress or it is merely a result, and bullying that amounts to harassment or a threat.
Speech that causes emotional distress is common in discussion of important matters and everyday communication. The woman who released the risqué pictures of Anthony Weiner admitted she did it to damage his campaign for mayor of New York City. The publication of pictures of Muhammad by a Danish news website was done intentionally to provoke Muslims. During the debate over the Affordable Care Act, Rush Limbaugh made comments about a Georgetown law student that were very critical of her looks and her personal ethics.
In Snyder v. Phelps, the Supreme Court rejected a civil ruling imposing liability for intentional infliction of emotional distress. A Maryland trial court had found the defendant liable for damages to the father of a deceased serviceman for outrageous and upsetting speech in the vicinity of the private military funeral. This case was a civil tort case, and the Court is likely to be more skeptical of a criminal law that would impose a prison sentence for similar speech.
The Supreme Court is currently considering Elonis v. United States, which is expected to give further guidance on the distinctions between protected communication and speech that rises to the level of threat or harassment and is unprotected by the First Amendment.
- On February 20, 2013, the bill was introduced  and referred to the House Committee on Judiciary.
- The committee amended  the bill to further broaden the class of people who can suffer mental injury, from immediate family members to members of a person’s household. The committee recommended the bill be passed as amended on November 21, 2013.
- The bill was amended  on the House floor. On December, 4, 2013, The House voted to pass the bill as amended and sent it to the Senate for consideration. The bill was referred to the Senate Committee on Criminal Justice.
- The bill is carried over to 2014.
- On September 7, 2014, Media Coalition submitted a memo in opposition  to the Senate Committee on Criminal Justice, explaining the constitutional issues with the bill and urging the committee to hold the bill for further consideration until the Court rules in Elonis v. United States.
- The committee amended  the bill and recommended it be passed as amended on December 2, 2014.
- The legislature adjourned its 2014 session without passing H.B. 74. The bill is dead.