(Cross-posted at the Technology & Marketing Law Blog.)
Aaron Hirschman, a self-proclaimed “Internet troll,” posted the following message on Craigslist:
Wanna make an easy $20 for voting? (Downtown Bend)
Are you interested in making a quick and easy $20? Meet us in the parking lot downtown near the drop off voting booth this weekend. All you need to do is bring your UNFILLED clean voting ballot and let us fill it out then you sign, and we hand it to the volunteer in the voting booth. Its that simple! Then you get $20. We’ll be there all weekend through tuesday.
Everybody, including state prosecutors, agreed that Hirschman had no intention of actually buying votes or carrying out this plan. His post was what the state called a “political shenanigan,” designed to provoke reactions by taking an absurd or offensive position.
Unfortunately for Hirschman, his trolling was not obvious enough for the government’s liking. Even though nobody replied to Hirschman’s post, the Oregon Secretary of State’s office thought the post would be reasonably interpreted as a genuine proposal to create a contract. He was charged with and convicted of violating ORS 260.715(9), which states that “a person may not  offer to purchase, for money or other valuable consideration, any official ballot .”
On appeal, Hirschman made two key arguments: First, the trial court misinterpreted the meaning of the word “offer” in the statute by failing to incorporate an intent element that would require the state to prove he had a subjective intent to form a contract. Second, if the statute did apply to Hirschman’s post, then it violated his constitutional right to free expression under the Oregon Constitution (though the analysis would share many similarities to a First Amendment challenge under the U.S. Constitution.)
The Court of Appeals reversed Hirschman’s conviction. But the analytical path it took to reach its result is a bit surprising.
The court could have avoided a free speech analysis by interpreting the Oregon statute as the defendant suggested—requiring subjective intent by the offeror to actually enter into an illegal contract. This would have allowed the court to dispose the case on statutory rather than constitutional grounds. But the court declined. After consulting Webster’s dictionary and contract-based uses of the term “offer,” the court explained that the Oregon statute must sweep broader than the defendant suggests. The defendant’s version of the statute would be indistinguishable from an attempt to purchase a ballot (which could be charged under a different part of the criminal code).
This seems to me to be a needlessly rote approach to statutory interpretation. Defining the scope of criminal liability is a good time for courts to create legal terms of art that do not match in all respects the way the words are used elsewhere. Crime-facilitating speech is a well-known hazardous area for regulation since it lies at the boundary between protected speech and unprotected conduct. The best way to manage it is to ensure that criminal laws hew closely to transactions, using speech only as evidence of the transaction or preparatory steps. That way, if I make the joke “please, I’ll pay, just somebody please take out the Kardashian family,” the criminal consequences do not teeter on how well or poorly I communicate that I am not serious.
Assessing the defendant’s subjective intent can do some of the work (perhaps not all) to ensure that direct prohibitions of speech are actually targeting a realistic threat. This is why intent is a constitutional requirement in incitement prosecutions. See Dennis v. United States (“The structure and purpose of the statute demand the inclusion of intent as an element of the crime.”) It is worth noting, though, that the Supreme Court still has not clarified whether subjective intent is a constitutional requirement in other similar areas of criminal law like true threats (see Elonis).
But even apart from the wisdom of constitutional avoidance, there is another sensible reason to interpret an “offer” in this criminal context differently from in the contracts context: the goals of the two legal constructions are very different. In contract law, the state has an interest in enforcing accepted offers even if they are made without subjective intent to form a contract–so long as the statement of an offer was objectively believable–in order to encourage transactions. When the putative offeror’s and acceptor’s interests are at odds, the contract system is better off using the objective meaning of the language and context involved so that this and future acceptors are protected from fraud, and so that future offerors can make credible offers that are not discounted as cheap talk. The goal of contract law’s definition of an offer, then, is to enable transactions. When transactions are criminally prohibited, these goals are moot. The only reason to prohibit “offers” is to discourage the transaction from occurring at all, not to enhance their reliability.
Hirschman gave the court an opportunity to define “offer” in the context of a criminal statute as a species of attempt—as a solicitation with the purpose of entering into an agreement that would itself be illegal. But because the court rejected it and accepted the state’s version of the statute, the law wound up in the buzz saw of free speech scrutiny.
Given that the court gave the criminal statute the wide scope that it did, its free speech analysis is strong and, in my view, correct. The Oregon Constitution’s protection of free speech seems to be as protective as the U.S. Constitution when the government creates content-based prohibitions of speech, applying very strong scrutiny to all but the historically excepted categories of speech. (In fact, the Oregon constitution may offer even stronger protections than the federal right to free speech since the court seems to limit the government to only the historically recognized exceptions).
First, the court found that the law targets expression rather than effects since a person violates the law only through communication, and since that communication can violate the law even if there are no bad effects.
Next, the court rejected the state’s claim that the anti-offer statute in this case was covered by the well-established historical exception for “solicitation or verbal assistance in crime” since solicitation crimes include the very element that the state insisted was not necessary for this particular law: the element of intent that the solicited crime be accomplished.
The court also saw right through the state’s argument that the statute was necessary to promote public trust in the state’s election system. Even if the effects are what the state fear they will be, the diminution of trust alone cannot justify the suppression of political speech. As the court put it, the state “selected a phenomenon and labeled it as a harm.” Derek Bambauer and I call these “tautological harms” in our forthcoming article Information Libertarianism. It’s nice to see a judicial opinion that so clearly identifies the problem; Courts are rarely this attuned to it.
The outcome of this case is doubtlessly correct. Hirschman’s odd mockery is surely part of our constitutional experiment in open political discourse. But given the path taken to reach the result, Oregon legislators may have to revisit and redraft laws criminalizing “offers” to engage in illegal activity lest prosecutors get trolled again.
Case citation: State v. Hirschman, 2016 WL 3675617 (Ore. Ct. App. July 7, 2016)