Unwanted Sexual Texts to Officials Test First Amendment Harassment Limits

The Ohio dispute turns on a narrow but recurring First Amendment question: when can the government punish a message sent directly to a person because it was meant to offend, harass, intimidate, or abuse them? Harassment statutes aimed at intrusive direct abuse can collide with the right to petition or criticize officials when the target is a public servant and the channel is a personal phone.

The facts are deliberately strange, but the legal issue is ordinary. Jane Bambauer described an Ohio political blogger, D.J. Byrnes, who runs a Substack called The Rooster and regularly criticizes Ohio State Senator Jerry Cirino, whom Byrnes also calls “Young Mussolini.” Byrnes allegedly texted Cirino, on at least three occasions, depictions of Shrek fully nude, with an exposed and erect human-like penis; one image was described as showing masturbation. The texts also included insulting messages. Bambauer said Byrnes was either arrested or charged with criminal harassment; she was not certain which.

The charge, as Bambauer framed it, asks whether sending “virtual ogre porn” directly to a target’s phone can be punishable harassment rather than protected political expression. Eugene Volokh treated that as a genuinely hard question because First Amendment doctrine contains two principles that point in different directions.

The first principle is that offensive speech is generally protected. Volokh pointed to the Supreme Court’s 1971 “Fuck the Draft” jacket case, where vulgarity in a public place could not be punished merely because it disturbed or offended observers. He also invoked the Court’s drive-in theater nudity case, in which Jacksonville’s ordinance restricting visible nudity on outdoor movie screens was struck down. The lesson, as Volokh stated it, is that people in public generally cannot demand that government suppress speech because they find it offensive. They may have to turn away.

The second principle is that direct, unwanted speech into a person’s private domain can be regulated more easily. Volokh grounded this in the 1970 Supreme Court case Rowan v. Post Office Department. Rowan upheld a federal mechanism allowing a mail recipient to tell the Post Office that mailings from a particular sender were offensive and must stop. If the sender continued mailing to that address after notice, the conduct became unlawful.

Volokh emphasized three features of Rowan. First, the Court recognized a listener’s interest in avoiding unwanted speech, especially in the home. Second, the law did not require the government to decide which material was offensive; the recipient made that judgment. Third, and most important for Volokh, the statute blocked communications only to the unwilling recipient. It did not prevent the speaker from communicating the same material to willing listeners.

That distinction became the frame for the Shrek texts. Public criticism of Senator Cirino, even harsh and insulting public criticism, would ordinarily be protected unless it fell into a recognized exception such as defamation or true threats. A political cartoon, a blog post, or a public insult about a politician may be intended to embarrass or offend the subject and still remain protected. The difficult question is whether the same speech changes constitutional status when sent directly to the target’s phone.

Bambauer pressed the point: public political speech often includes an intent to offend the official being criticized. Volokh agreed, but said courts often distinguish speech “about” a person from speech “to” a person. As he summarized the Ohio provision at issue, it covers telecommunications — including emails and texts — made with the purpose to harass, intimidate, or abuse the recipient. Laws of that kind have generally, though not always, been upheld when they focus on unwanted direct communications to a particular person.

Jane Bambauer identified a tension in using Rowan to support criminal harassment laws. Rowan involved advance notice: the recipient first told the sender to stop. Only later, if the sender persisted, could the law punish the continued mailing. Ohio-style harassment statutes, by contrast, often do not require the speaker to receive a specific “stop contacting me” notice before liability attaches.

Her concern was not merely formal. People sometimes need to hear things they do not want to hear. A speaker may deliver bad news, state a harsh truth, or criticize someone directly in ways that are unwelcome but socially or politically valuable. Bambauer asked whether the First Amendment should at least protect an initial offensive communication until the recipient has made unwillingness explicit.

Eugene Volokh acknowledged that Rowan stressed notice and that courts could draw the constitutional line there. Some statutes do limit themselves to repeated communications after being told to stop. But he said most criminal harassment laws do not require that kind of recipient-specific notice. Instead, courts often treat the speaker’s purpose to harass or abuse as enough to show that the message was predictably unwanted.

The distinction matters because a communication that is unwelcome is not automatically harassment. Volokh’s example was blunt: if someone gives another person bad news, they probably do not have the purpose to harass or abuse. But if the purpose is to harass or abuse, courts tend to infer that the speaker knew the recipient would not want the message.

Volokh was careful not to present this as settled Supreme Court law. Since Rowan, he said, the Supreme Court has not directly resolved the constitutionality of modern criminal harassment statutes in this context. The dominant view in lower courts appears to uphold laws banning unwanted speech to a person when they include a malign-purpose requirement, but lower court doctrine is not fully consistent.

That uncertainty is especially important because the key statutory terms — “harass,” “abuse,” “intimidate” — are imprecise. Volokh repeatedly described harassment as an ill-defined term. Courts may uphold many targeted-harassment statutes, but the breadth and vagueness of those laws continue to determine whether they capture only intrusive abuse or also constitutionally protected criticism.

The Shrek texts were not sent to a private citizen in an ordinary private dispute. They were sent to a state senator. That fact, for Eugene Volokh, may create what he called “an exception to that exception”: if unwanted direct speech can sometimes be punished, unwanted direct speech to government officials may remain protected because citizens have a constitutional interest in addressing officials, even harshly.

Volokh pointed to his own earlier Nebraska Supreme Court case, involving a defendant who sent insulting, non-sexual messages to a former university professor then running for the Nebraska legislature. The defendant was prosecuted for disturbing the peace through unwanted emails. Volokh represented him, and the Nebraska Supreme Court unanimously held that the speech was constitutionally protected.

He also discussed United States v. Popa, a 1999 D.C. Circuit case involving racist voicemails left for Eric Holder, then the U.S. Attorney for the District of Columbia and later Attorney General. Volokh quoted one of the messages as calling Holder a “whore born by a negro whore.” The defendant was prosecuted under the federal telephone harassment statute. According to Volokh, the court said the government could not punish that speech in the context of political communications to a high-level political official. He noted that Popa referred to speech on matters of public concern, though later cases have often quoted it in disputes involving speech to government officials.

Volokh did not describe this as a unanimous or settled constitutional rule. Some courts have allowed punishment for offensive direct speech even when addressed to government officials. His account was more cautious: the lower-court pattern generally suggests that, although there may be a First Amendment exception allowing punishment of unwanted speech to a person when sent with a purpose to harass or abuse, there may also be a further exception for communications to government officials.

Jane Bambauer offered an analogy to fighting words doctrine. Fighting words, as Volokh explained it, are face-to-face personal insults likely to provoke a fight. Some courts treat police officers differently because officers are trained and expected to withstand insults that might provoke an ordinary person. Bambauer suggested that politicians might be similar: in their official capacity, they are expected to absorb harsh criticism and abuse.

Volokh agreed that something like that logic appears in the doctrine. Government officials may be different because they should expect sharp criticism, or because it is especially important for people to speak directly to those who wield public power.

The unresolved question is the channel. Volokh distinguished official channels — a government office address, official email account, office phone, or government phone line — from personal spaces and devices. Lower courts suggest some protection for unwanted offensive communications to government officials, but Volokh framed the channel point cautiously: that protection may apply only when the message is sent through the official’s government email address, government phone, or other official communications channel.

That boundary is central to the Ohio case as Volokh framed it. Modern communications blur the old Rowan-era distinction between home and work. In 1970, a person typically had a home address, a work address, a home phone, and perhaps a work phone. Today, email and cell phones travel everywhere. Some people maintain separate business and personal phones, but Volokh suggested that is not common, partly because of cost and the inconvenience of carrying two devices. A text to a politician’s phone may therefore be neither cleanly official nor cleanly private.

The Shrek image matters because it was not merely insulting. It was, by the account Jane Bambauer gave, sexually explicit and apparently designed to disgust rather than arouse. Eugene Volokh described it as cartoon masturbation by a fictional, humanoid creature, sent “precisely to offend people.” He suggested many people would think recipients have a stronger claim to be free from unwanted highly sexualized images sent directly to them, especially images of masturbation.

Bambauer connected that intuition to special rules for indecent speech directed at children, while recognizing that Cirino is an adult. The broader idea was that unwanted sexual imagery may justify different treatment from unwanted political argument or ordinary insult. Volokh agreed that some states have harassment statutes specifically targeting lewd or indecent communications sent with a purpose to abuse or harass, and that some courts have upheld such laws.

But that creates a constitutional complication. A law singling out sexual communications is content-based, and therefore more suspect under First Amendment doctrine. Some courts, Volokh said, have treated the narrowness as a virtue rather than a vice: by limiting the statute to sexualized material, the law avoids sweeping in speech more central to political communication.

Ohio’s statutory structure, as Volokh understood it, complicates that argument. The provision apparently being used in Byrnes’s case is not specifically limited to lewd or sexual communications. Volokh said Ohio has a separate provision addressing sexual communications: it is a crime to describe, suggest, request, or propose sexual activity when the recipient has asked the caller not to make such communications. Bambauer noted that this is “very content-specific.” Volokh said the notice requirement makes intuitive sense in that setting because some sexual proposals are welcome; the law intervenes after the recipient has said no.

The Shrek image also does not become legally obscene merely because it is vulgar or sexual. Bambauer suggested that, offensive as an image of Shrek masturbating may be, it has at least some “SLAPS” value — serious scientific, literary, artistic, or political value — and therefore is not obscenity. Volokh agreed that if the prosecution were for distributing obscene material, the image pretty clearly would not be punishable as obscenity. Obscenity, as he described it, means hardcore pornography lacking serious political value, among other requirements. For several reasons, he said, this image would not qualify.

The distinction is important. The legal theory is not that the Shrek image is unprotected obscenity. It is that sexual material that would not be obscene, and that adults may ordinarily be free to view consensually, may still raise different questions when sent to a non-consenting recipient through direct communication. Volokh contrasted consensual adult access to pornography with unsolicited sexual material sent to someone who did not ask for it.

Bambauer closed that thread by noting that, beyond the oddity of Shrek, many unsolicited explicit images — “unsolicited dick pics,” in her phrase — may fall within the logic these harassment statutes are designed to address. The legal difficulty is that a statute broad enough to reach those messages may also reach political insults, protest communications, and offensive messages to officials unless courts draw limiting lines.

The Ohio facts sit at the intersection of several doctrinal pressures. Byrnes’s public criticism of Senator Cirino looks like core political speech. Directly texting sexualized and insulting images to the senator looks more like targeted harassment. The recipient’s status as a government official may push toward constitutional protection. The use of a phone, rather than a clearly official channel, may matter if courts treat personal devices differently from official channels. The sexual content strengthens the intuition that the recipient should not have to receive it, but the image’s political context weakens any obscenity-based argument.

Jane Bambauer and Eugene Volokh did not reduce the case to a slogan. Bambauer pressed on whether advance notice should be required before punishment, whether the First Amendment protects some unwanted direct speech because people sometimes need to hear unwelcome truths, whether public ridicule differs from direct targeting, and whether politicians should be treated somewhat like police officers for insult-tolerance purposes. Volokh’s answer was that First Amendment doctrine has pieces for each problem, but not a clean Supreme Court rule for this exact setting.

The strongest protection, in Volokh’s account, applies to offensive speech about a public official, distributed publicly or through channels where willing listeners may receive it. The strongest case for punishment applies to direct, unwanted, personally targeted communications sent with a purpose to harass or abuse, particularly after notice to stop or when the content is sexualized. The Ohio case is difficult because it contains both: political criticism of a senator and direct delivery of unwanted sexual imagery.