Can the government criminally convict you of “harassment” over speech that is broadcast to the public at large, rather than said to someone’s face? Maybe not, since courts sometimes overturn restrictions on speech not directed to a specific person.
But in a recent case, a court didn’t need to answer this question, because it ruled that the woman who was convicted of “harassment” was denied her constitutional right to cross-examine her accuser. So her conviction was invalid regardless of whether her speech was protected by the First Amendment.
Below is the heart of a court ruling overturning a woman’s criminal conviction for having signs on her property saying “One Women Can Be Mothers” and “Transing Kids Is Abuse and Homophobia.” It was issued on September 25 in Commonwealth v. Balcom by a Pennsylvania state appeals court. O’Donnell and Collier, a gay couple, lived with “their daughter, K.H., who is transgender”; the defendant, Ms. Balcom, lived next door, “and she and Victim’s [O’Donnell’s] family have had an acrimonious relationship for several years.” The defendant’s “backyard abuts Victim’s backyard, with a fence along the shared property line.”
Mr. Collier was parking his car on the street near their home after picking up their sons when Appellant [Balcom], who was in her car, displayed a sign in the rear window of her car that said, “only women can be mothers.” The next evening, Victim and his family returned home to find that Appellant had placed a large sign on the fence facing their back yard, and K.H.’s bedroom window, that said “‘transing’ kids is abuse and homophobia[.]” The sign was only visible from Victim’s house or yard and to anyone walking their dogs in the adjacent alley if they “crane[d] their necks.”
Victim filed a private criminal complaint against Appellant, in which he referenced the backyard sign and stated that Appellant had been “harassing [his family] for 2 years.” Accordingly, the Commonwealth charged Appellant with Harassment, a summary offense.
The Magisterial District Court convicted Appellant and sentenced her to pay a fine of $200. Appellant appealed and proceeded pro se to a de novo bench trial in the Court of Common Pleas…
Early in the trial, Appellant asked the court if she could object. The court responded “[n]o, you’re not an attorney[,]” then reiterated, “[y]ou’re not an attorney. You don’t get to object[,]” but assured Appellant that the court would “give [her] the opportunity to present [her] side.”
Victim then testified in accordance with the above facts, and also explained Appellant’s history of making social media posts directed at his family. K.H.’s therapist, Susan Cherian, then testified about the effect that the sign had on K.H.
Appellant chose not to cross-examine Ms. Cherian but told the court that she had a “long list” of questions for Victim, including questions about his role in their conflict, and claimed that Victim had harassed her for years. The court instructed Appellant to “[f]orget the cross-examination, tell me your side of the story.” During her testimony, Appellant admitted to posting the yard sign.
The same day, the court convicted Appellant and sentenced her to pay a fine of $200 and court costs.
The Superior Court overturned the woman’s conviction because she had been denied her right to confront her accuser, despite that right being spelled out in the Sixth Amendment’s Confrontation Clause:
“The Sixth Amendment guarantees criminal defendants the right to confront and cross-examine adverse witnesses” to ensure a fair trial…. It is well-settled that a defendant has the right to confront witnesses through cross-examination, subject to reasonable limitations. The court erred when it prevented Appellant from cross-examining Victim, the Commonwealth’s primary witness. If the trial court were concerned that Appellant’s cross examination would become repetitive or focus on irrelevant topics, the trial court could impose reasonable limitations. Precluding Appellant, however, from engaging in any cross-examination of the Victim undisputedly violates Appellant’s constitutional right to confront witnesses….
Furthermore, this error was not harmless because the Commonwealth’s case rested on Victim’s testimony, as he was the only fact witness, and the trial court’s limitation prevented Appellant from challenging the veracity of his testimony. Accordingly, we are constrained to vacate Appellant’s judgment of sentence and remand for a new trial….
The court didn’t consider the convicted woman’s argument that her speech was protected by the First Amendment, or her claim that he speech didn’t qualify as harassment under state law. Perhaps it will consider those arguments in the future if she is retried and convicted again, resulting in another appeal.
