Commonwealth v. D’Adderio, J-A06041-19, No. 833 MDA 2018 (Sup. Ct. Pa.)

Kelly Marie D’Adderio was not pleased with an ex-friend’s marriage to her ex-husband.  She posted her views on Facebook for the world to see.  Her posts contained graphic language and expressed pleasure that her ex-husband had cheated on her ex-friend, and made allegations about drug use at her ex-friend’s house, where D’Addario’s children stay.

Ex-friend Maria Memmi’s stepchildren showed her the posts.  Memmi had no Facebook account of her own.  She sought police intervention.

The police were unable to persuade D’Adderio to take down her posts, and more posts ensued.

The state filed a criminal complaint against D’Adderio in June, 2016 and a criminal information charging harassment ensued in March, 2017.

D’Adderio moved unsuccessfully to dismiss the criminal charges, asserting that “lewd” or “lascivious” speech enjoys First Amendment protection.

A jury convicted D’Adderio of harassment.  She was sentenced to a year’s probation, 100 hours of community service not contact with a minor child reference in the posts, and fines and costs.

On notice of appeal, the trial court opined that there existed sufficient evidence to find that appellant posted lewd messages with no communicate purpose with an intent to harass, and opined that the harassment statute is not overbroad.

On appeal, the Superior Court framed the questions for consideration:  1) whether non-obscene but lewd and lascivious speech about but not to another is protected under the federal and state constitutions, and 2) whether the harassment statute is overbroad.

The court observed that the statute prohibits conduct which is not constitutionally protected and which is intended to alarm or annoy.  Lewd language is not synonymous with obscenity, and the issue of whether the speech was to or about Memmi is of no moment, the court concluded.

The U.S. Supreme Court has concluded that epithets and personal abuse fall outside constitutional protection.

D’Adderio’s commentary did not express social beliefs or constitute legitimate comment.

Because the statute in issue requires an intent to harass, it does not capture protected speech in its ambit, and is not, therefore, overly broad, for it does not criminalize legitimately communicative speech.

Commonwealth v. D’Adderio (Pa. Super. Ct., 2019)

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