Judge’s cheat sheet: Ashli Ford's appeal is a legal minefield
Two lawyers, two constitutional amendments, and one Facebook post. Here is what the judges are actually weighing.
SANDUSKY — The briefing is over. The “Malcolm X” post is in the record. Now, three judges in the Sixth District Court of Appeals have to decide if a podcaster’s Facebook rant is a protected right or a felony.
If you’re trying to follow the play-by-play, here is the “Cheat Sheet” on the two warring legal theories. One side contends it is fighting for the First Amendment, and the other is leaning hard on courtroom procedure.
Argument 1: ‘True threat’ vs. ‘Political poetry’
The Question: Did saying she would “escort [officials] to [their] demise” count as a crime?
Ford’s Play (The First Amendment): Her lawyers are leaning on the “Watts Standard.” In 1969, the Supreme Court ruled that a man saying he wanted to get LBJ “in his sights” was just “crude political hyperbole,” not a threat. Ford’s team argues that referencing Malcolm X is a statement of tactics (being aggressive and uncompromising), and “demise” simply means “political career over.”
The State’s Counter: Prosecutors argue this wasn’t a protest in a vacuum. It was a targeted strike against people who were witnesses in a criminal case against her. They contend that in the context of two assassinated leaders (MLK and Malcolm X), the word “demise” carries a “True Threat” of physical harm intended to scare witnesses out of testifying.
Argument 2: The “Waiver’ trap (procedural kill-shot)
The Question: Even if the speech was protected, is it too late to bring it up?
The State’s Play: This is the “Technicality” card. The State argues that Ford’s original trial lawyer didn’t argue the First Amendment strongly enough during the first trial. In the world of appeals, if you don’t “preserve” an error at trial, you “waive” it. They are asking the judges to uphold the conviction simply because the rules of the game weren’t followed correctly the first time.
Ford’s Play (The Sixth Amendment): To beat the waiver, Ford’s appeals attorneyhas to argue “Ineffective Assistance of Counsel.” They are essentially saying, “If our first lawyer missed a First Amendment defense this obvious, he failed his client so badly that the trial itself was unconstitutional.” It’s a high bar to clear, but it’s her only way around the procedural trap.
Editor’s verdict
In 20 years of watching the scales of justice in Erie County, I’ve seen that judges hate messy precedents.
If they rule for Ford, they open the door for more aggressive “digital activism” against public officials. If they rule for the State, they potentially narrow the First Amendment for everyone with a smartphone.
My prediction? Watch the “Waiver” argument. Appellate courts love a way out that doesn’t require them to make a landmark ruling on free speech. If they can uphold the conviction on a procedural error by her first lawyer, they will.
Who do you think has the stronger hand? Does a Facebook post “by any means necessary” cross the line? Leave a comment below.
For the full archive of the Ford case and the documents behind this “Cheat Sheet,” visit StayTunedSandusky.com.
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Correcting the first sentence in your first paragraph.
A couple of factual errors:
1) Briefing is not over. Per App R. 18 the Appellant (Ford) may file a Reply Brief in 10 days from service of the Brief of Appellee.
2) Technically, The Brief of Appellee (State) was filed out of rule because no extension of time to file was granted. The Brief could be stricken and the State denied the right to appear for oral arguments. See App R 18.
3) A date for Oral Arguments will be set and the three judge panel assigned after Appellant's Reply Brief is filed. After Oral Arguments the case is submitted for decision and decided usually 6 to 8 weeks later.
Elsebeth Csizmadia Baumgartner