Nancy Elizabeth Borushko—P62575
Chief Asst Prosecuting Atty
Bay County Prosecuting Attorney's Office
1230 Washington Ave Ste 768
Bay City, MI 48708-5737
Phone: (989) 895-4185
Fax: (989) 895-4167
e-Mail: borushko@baycounty.net
The First Amendment to US Constitution provides that "Congress shall make no law … abridging the freedom of speech." Our Michigan Constitution declares that, "Every person may freely speak, write, express and publish his views on all subject . . ." (Art. I § 5).
As a Michigan attorney, and especially as a county prosecutor, you took an oath to uphold the constitutional rights of all citizens, including people you charge with a crime. You operate under special rules set forth in MRPC 3.8 that prohibit you from prosecuting cases that are not supported by probable cause. It is unethical for a prosecutor to charge a person with a law that is clearly unconstitutional.
I am extremely concerned over your prosecution of Renee Kolka for posting nasty messages on Facebook. According to MLIVE, an unidentified woman complained that Kolka was calling her a "slut" on Facebook. Kolka also posted that "We all know her skanky ways," and called her a "skinny tall coke head." She also warned people "Don't catch an STD" from her. Kolka posted the woman's phone number.
You are prosecuting Kolka under MCL 750.411s, which is clearly unconstitutional. It aims to limit electronic speech that someone might find annoying that results in unconsented contact. This absurd law attempts to devolve all online communications down to a kindergarten level, with police and prosecutors handing out felonies instead of time-outs to the bad kids.
The provisions of MCL 750.411s have a chilling effect on free speech. Journalists, activists, and political candidates who use blogs to embarrass public figures are required to prove that the purpose of their speech was proper and their purpose was to engage in constitutionally protected speech. Journalists and politicians who believe that they are shielded from liability from the statute are absolutely wrong. The Washington Post printed a story just a few days ago on April 1, 2016: "Critic may not mention planning board member's name in any email, blog, Twitter or any document." The Post notes that, "That's from a court order issued in Massachusetts. A later court decision fortunately reversed this order, which was clearly unconstitutional; and Wednesday the Massachusetts high court (Van Liew v. Stansfield) held that even a narrower 'harassment prevention order' — based in part on the critic's 'calling [elected planning board member Colleen Stansfield] corrupt and a liar' — was illegal, and could form the basis of a malicious prosecution lawsuit by the critic against the politician."
Courts have repeatedly scrutinized and struck down speech restraints on the Internet. See, e.g., Reno, 521 U.S. 844 (striking down the Communications Decency Act); Ashcroft v. ACLU, 542 U.S. 656 (2004) (preliminarily enjoining the Child Online Protection Act). The Supreme Court explained: "any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox," and "the content on the Internet is as diverse as human thought." Reno, 521 U.S. at 870.
Last year, the Georgia Supreme Court held that a blogger was permitted to post mean-spirited, distasteful and crude comments about a poet, Linda Ellis, including publicizing information about Ellis that she would have preferred not to be public. See, Chan v Ellis: http://www.gasupreme.us/wp-content/uploads/2015/06/s14a1652.pdf
Constitutionally unprotected speech must be limited to only two areas: "fighting words" and "true threats." For speech to qualify as fighting words, the words must be a direct personal insult addressed to a person, and they must be inherently likely to provoke immediate violence. By virtue of the nature of Facebook, where posters may be hundreds of miles away, there can be no immediate threat of violence. True threats, on the other hand, are direct threats of imminent physical harm as well as words or actions that — taking into account the context in which they arise — cause the victim to fear such imminent physical harm now or in the future.
Last summer, the US Supreme Court issued its closely watched decision in Elonis v United States. In that case, the defendant posted numerous threats to Facebook that he denied were threats. These threats included threats to kill his ex-wife, threats to an FBI agent, and threats to local school children. This is where our First Amendment liberties must take us if we are to protect them. People like Elonis, who push the boundaries, may be guilty of a crime, but calling someone a slut on Facebook is a far cry from the threats in Elonis.
I am asking that you dismiss the case against Renee Kolka. This is not something that requires the intervention of the criminal justice system. I appalled that taxpayer money is being spent prosecuting a person for speech when Michigan can't fix its roads. If the complaining witness has a valid complaint, she can raise those claims through a civil lawsuit instead of chilling the fundamental right of free speech. If you choose to continue your prosecution against Ms. Kolka, I will encourage all of my friends and family members in the Bay County area to vote for attorney Marcus R. Garske of the Gower Reddick law firm in the upcoming election, since I have been informed that Mr. Garske supports the First Amendment.