Bogus Facebook account involved
GONZALES — Someone creates a bogus Facebook account under a parish government official’s nickname.
That Facebook “creator” then posts things that, on the surface, inexplicably put the Web persona in a bad light but also could be interpreted as having been written as humorous impersonation or sarcasm.
Attorneys in Ascension Parish this week argued whether such Internet behavior is an elaborate form of online satire — and protected free speech about a public figure — or identity theft, a crime closer to cyberstalking or making harassing phone calls.
The clash over speech and identity in the era of social media emerged in the misdemeanor online impersonation case involving a former top deputy of Ascension Parish President Tommy Martinez.
Patricia Elizabeth “Beth” James, 54, of Prairieville, Martinez’s chief executive assistant until May 2012, is accused of creating a fake Facebook identity under the name of “Kimmie Braud.” Derogatory statements were posted about “Kimmie Braud” in early August 2012. The site was taken down after three days.
The real Kim Braud, then chief of staff for Martinez and a higher-ranking deputy now, filed a criminal complaint about the Facebook site created by James that mocked her last year.
James was cited in late October with one count of online impersonation under a newly enacted Louisiana criminal statue that took effect on Aug. 1, 2012. Prosecutors later charged James with a second count. James has pleaded not guilty.
Gonzales defense attorney Tim Pujol argued during a hearing on the case Tuesday that the state statue is an unconstitutional prior restraint on free speech when applied to public figures because the law lacks the high bar of the “actual malice” standard set forth in the landmark U.S. Supreme Court First Amendment case New York Times v. Sullivan in 1964.
He argued that the Facebook “Kimmie Braud” posts were a form of satire, similar to items that might poke fun at, or impersonate, public figures such as high-ranking government officials or various celebrities.
Pujol pointed to Louisiana’s old criminal defamation statute, which made it illegal to “injure” a public official with speech, whether spoken or printed.
In 1964, the U.S. Supreme Court ruled in Garrison v. State of Louisiana that the law was an unconstitutional restriction on speech in view of the Sullivan ruling.
Pujol asserted Louisiana’s current online impersonation statute has language similar to the old state law in that it attempts to prohibit impersonation with the intent to “harm” and wipes away long-settled free speech precedents.
“This is the United States of America. We do not criminalize free speech. This issue was settled 40 years ago, but now that we have the Internet, let’s go revisit it,” Pujol suggested to Judge Marilyn Lambert of the 23rd Judicial District Court.
Pujol asked Lambert to quash the two counts against James.
Louisiana Assistant Attorney General Stephen Martin countered that Pujol’s argument amounted to a smokescreen aimed at obscuring the primary intent of the 2012 law.
Martin told the court the state Legislature’s new law prevents people from using the Internet for such things as stealing identities and opening social media accounts to say injurious things about other people.
“The right to free speech is unimpeded,” Martin said. “Ms. James or anyone, anyone here, if they have anything to say, they can stand up and have the common courtesy to express their opinions to say the words they want to say without stealing someone else’s good name and opening an account on Facebook or any other social media to do so.”
Investigators said in a sheriff’s report on the case that the fake Facebook site included a picture of deceased comedienne Phyllis Diller posted as “Kimmie Braud’s” primary self-portrait.
The self-derogatory posts portrayed Braud as fretting over her clothes, preferring to be scantily clad for work and lacking sufficient experience to perform her job in the Martinez administration.
“‘Trying to figure out what to wear to work tomorrow! The shorter the better,’” the sheriff’s report quotes one post as saying.
State Rep. Helena Moreno, D-New Orleans, author of the bill that led to the 2012 law, said Wednesday that she worked with the Louisiana Coalition Against Domestic Violence to craft legislation addressing the impersonation of actual persons on social media.
Moreno, a former journalist, said she does not think the public person argument applies because it is one thing to create a website to say something about a public figure and another to impersonate that person so people are wrongly led to believe they are reading an actual person’s statements.
“It’s up to the judge to determine whether they believe this particular person truly was impersonated so that the general public would think it was her, so we’ll see,” Moreno said.
Pujol called Braud to the stand before arguments Tuesday and asked her a series of questions aimed at determining if she is a public figure.
Braud confirmed she is involved with public events as a parish government representative, attends televised government meetings, manages some parish departments and has been listed as a contact for the public.
Though Lambert reviewed some of the Facebook posts, she said she was not sufficiently familiar with the case to rule before trial.
She deferred ruling on the defense motion to quash and whether Braud is a public figure until the trial gets underway at 9 a.m. Nov. 19.
If found guilty, James faces a fine of up to $1,000 or a jail term ranging from 10 days to six months, or both, per count.