Speech aimed to make someone “lack self-confidence in her relations with the opposite sex and about her body-build” = “intimidation”?

The juvenile court in In the Interest of D.S. (Iowa Ct. App. Apr. 16, 2014), said “yes,” but fortunately the Iowa Court of Appeals has just said “no.”

The speech in this case (“fat, skanky bitch”) might perhaps have been punishable under a “fighting words” statute. (Plus, of course, someone who says things like “I’m way better than you and prettier than you,” has a lot to learn about decency, good sense, and avoiding unintentional self-parody.)

But if “intimidate” were indeed held to include any speech that causes a person to “lack self-confidence in her relations with the opposite sex and about her body-build,” then the consequences would have extended far beyond such face-to-face epithets. Even statements that entirely lacked epithets could become criminal, and potentially even statements said about a person to the public at large — and not just statements to the person — could be punished under broader modern “harassment” statutes. So I’m glad that the Iowa Court of Appeals has set a precedent that will help nip this particular theory in the bud.

In any event, here are the facts from the appellate opinion:

On February 20, 2013, three high school classmates got off a school bus on the way home after school. After exiting the bus, D.S. yelled, “T-Bitch,” to get the attention of her friend T.B. The victim in this case, also having the initials T.B., thought D.S. was yelling at her so she turned around and said “what?” to D.S. D.S. replied to the victim, “I wasn’t talking to you, you fat, skanky bitch. I’m way better than you and prettier than you, and I’m not desperate like you to sleep with the bus driver.” The victim replied, “I don’t care about looks, at least I have a heart.” D.S. and the victim were approximately ten feet from each other during this exchange.

D.S.’s friend than approached D.S. and said, “let’s go.” The two left the scene and went to D.S.’s house. The victim was hurt by these words and went home and cried, reporting the incident to her mother.

D.S. was then prosecuted through the juvenile justice system for criminal harassment; the Iowa criminal harassment statute provides, in relevant part,

A person commits harassment when the person, purposefully and without legitimate purpose, has personal contact with another person, with the intent to threaten, intimidate, or alarm that other person. As used in this section, unless the context otherwise requires, “personal contact” means an encounter in which two or more people are in visual or physical proximity to each other.

The juvenile court found (some paragraph breaks added):

[D.S.] and [the victim] have known each other since kindergarten and have lived near each other in [a small town] for that entire time. [D.S.] claims she and [the victim] were friends until they entered the third grade. [The victim] claims a history of ill will between [D.S.] and her. [The victim] claims one physical altercation with [D.S.] that occurred two years ago. [The victim] claims that [D.S.] has frequently made mean and hurtful comments to her.

… [D.S.]‘s comments directed toward [the victim] had no legitimate purpose. [D.S.]‘s comments were intended to be a “put down” to [the victim]. This “put down” was intended by [D.S.] to make [the victim] lack self-confidence in her relations with the opposite sex and about her body-build.

It is not reasonable to believe that [the victim] anticipated any physical harm or threat of physical harm from [D.S.] who is substantially shorter and weighs less than [the victim]. [The victim] testified that she was not threatened by [D.S.] during their encounter on February 20, 2013. [The victim] was not in apprehension of imminent physical harm during this encounter either.

[The victim]‘s reaction was to return home upset and crying despite her effort to respond to [D.S.]. This incident was the culmination of a number of likely similar incidents. [The victim]‘s mother had finally “had enough” and sought assistance from local law enforcement.

The juvenile court “found there was no threat and there was no apprehension of physical threat or harm,” but concluded that D.S.’s actions were intended to “intimidate” because they were intended to make the victim “lack self-confidence in her relations with the opposite sex and about her body-build.” Not so, held the court of appeals (some paragraph breaks added):

[T]he juvenile court concluded that “intimidate means to make timid or fearful” and then bootstrapped the [dictionary] definition of “timid” [“lacking in courage or self-confidence”] to conclude that “intimidate” means to make one lack self-confidence. This definition strikes us as not the ordinary meaning of the word “intimidate.” The juvenile court cited no case authority in support of this interpretation. We could find none. It seems to us the common meaning of “intimidate” is to “inspire or affect with fear” or to frighten. See Webster’s Third New International Dictionary 1184 (1993) [“Webster's”]; see also Meuser v. Federal Express Corp., 564 F.3d 507, 516 (1st Cir. 2009) (defining “intimidation” as to put another in fear); State v. Hines, 471 S.E.2d 109, 114, (N.C. Ct. App.1996) (defining intimidate as frighten).

In addition to not comporting with the common understanding of the word “intimidate,” the juvenile court’s interpretation isolates the relevant word and takes it out of its structural and syntactic context. First, the charged offense is contained within chapter 708, governing assaults, signaling the charged offense encompasses something more than words or conduct intended to make the victim feel less confident in herself.

Second, the juvenile court’s interpretation ignores the words immediately surrounding the word “intimidate.” Within the statutory text, “intimidate” follows the word “threaten” and precedes the word “alarm” in a series of associated words. Both “threaten” and “alarm” denote the creation of fear of injury or harm. The canon of construction noscitur a sociis provides that associated words in a series should carry the same or similar denotations. Stated differently, the canon provides that “words of a feather flock together.” Here, the canon compels the conclusion that “intimidate” should be construed similarly to “alarm” and “threaten.”

Finally, we typically construe statutes to avoid constitutional infirmity where possible. The district court’s interpretation of the word “intimidate” creates constitutional concerns implicating free speech rights and due process rights regarding vagueness. To avoid potential constitutional infirmity, “[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where the speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Virginia v. Black, 538 U.S. 343, 360 (2003).

For the foregoing reasons, the district court erred in concluding that “intimidate,” as used within Iowa Code section 708.7(1)(b), means to make another feel less confident in her relationships with others and less confident in her body-build. Instead, the common and ordinary meaning of intimidate and the canons of construction dictate the conclusion that “intimidate” means to “inspire or affect with fear” or to “frighten.” …

While D.S.’s words may have been childish, rude, and even hurtful, they do not rise to the level of harassment.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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