Intimidation? Or first amendment right to speak?

At the start of the New Year, there is an important case on appeal from the District Court to the Superior Court which will be heard on a motion to dismiss on January 7. While the matter involves a misdemeanor, the ramifications of the ruling are far-reaching. Here are the facts:
In September of 2011, John Leidecker, the now-deputy director of the National Education Association (NEA), was found guilty of cyber-stalking. His victim was former state representative Douglas Gablinske, a vocal critic of union influence over the educational process. Determined to defeat this Gablinske for standing up against the union, the NEA placed him in its crosshairs. Mr.  Leidecker decided to impersonate Mr. Gablinske, concocting a false story that he supported Mt. Hope bridge tolls (which he actually opposed in his district) and sent the false position under an email to voters which mimicked Gablinske’s email.
The name confusion led voters to assume that, in fact, the email was from the representative. Harassing emails were also sent to Gablinske who, at the time, had no idea as to the author. There is little doubt that the  bridge toll issue led to Mr. Gablinske’s defeat for re-election. Mr. Leidecker now asserts a first amendment right to his email missives.
The defense attorney has argued that the messages were political in nature and, in effect, concedes that the purpose was to defeat Mr. Gablinske. Since it is political speech, he argues, the defendant cannot be prosecuted so the conviction should be dismissed.
One central fact missing from this analysis, however, is the repetitive nature of these emails to Mr. Gablinske. They, no doubt, “seriously alarmed, annoyed, or bothered the person” as the statute requires. Nothing is more insidious and alarming to a candidate for office than emails sent to him and others representing the exact opposite position on the issue which the candidate holds. Were defeat of him the sole motive there MIGHT be an issue re: political speech but, in this case, Mr. Leidecker decided to use anonymous emails to rub Mr. Gablinske’s nose in it. The district court judge found that this activity was designed to harass and intimidate him.
The NEA employee engaged in gutter swipe activities, certainly, but he went one step further in taunting the candidate, thinking that the anonymity of the email would allow him to sucker-punch Gablinske. He deliberately wanted to upset Gablinske by impersonating him, letting him see a backlash against the concocted position and rendering him powerless to do anything about the misrepresentation. The facts adduced at the first trial showed that Representative Gablinkse was in fear as to what kind of “nut”(my word) was bearing down on him and his family, and to what lengths the anonymous author might go.
The trial in the Superior Court  is a de novo proceeding which means that there is a trial from scratch. The new judge should allow the trial to proceed. It is quite plausible that a finding could again support the contention that the transmittal of the bogus emails was designed to cause Gablinske substantial emotional distress — well beyond the successful attempt to defeat him.


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