A man accused of repeatedly making harassing phone calls to Indiana lawmakers’ aides and staff members at the Secretary of State’s Office must face multiple misdemeanor charges, the Indiana Court of Appeals ruled Wednesday.
The COA affirmed the Marion Superior Court’s denial of a motion to dismiss seven Class B misdemeanor harassment counts in Kiel Stone v. State of Indiana, 18A-CR-2427.
Stone called multiple aides for Sen. Mike Bohacek, former Sen. Mike Delph and former Senate President Pro Tem David Long in 2017 and 2018, complaining of government conspiracies to kill him involving the Indiana State Police and the CIA. He also raised issues regarding pro bono legal assistance and a traffic violation program, among other things, and called an aide at the Secretary of State’s Office voicing similar concerns while frequently insulting staff members, according to the record.
Stone was charged in February 2018, and he unsuccessfully moved the trial court to dismiss the counts. He argued the charges violated his free speech rights under the First Amendment, and his rights under Article 1, Section 9 of the Indiana Constitution, because he claimed his speech was unambiguously political and therefore protected because it did not rise to the level of tortious behavior.
But the COA panel was not persuaded to dismiss the charges. “Stone has a constitutional right to petition the government and, to that end, to engage in political speech. But there is a question of fact whether he abused that right when he confronted numerous State employees with ad hominem verbal attacks,” Judge Edward Najam wrote.
“Specifically, the question under the statute is whether Stone’s comments were merely annoying or impolite, but with a legitimate intent to communicate, or whether his hostile verbal attacks on State employees were intended to harass, annoy, or alarm others and, as such, went beyond a legitimate inquiry, comment, or criticism of government policy or administration. … (A) reasonable fact-finder could conclude that the totality of the evidence supporting each charge demonstrates that Stone’s speech was not unambiguously political and is, therefore, not protected under Article 1, Section 9.”
Judge John Baker concurred in result with respect to Stone’s First Amendment rights but wrote separately regarding the Indiana Constitution analysis
“I believe that whether Stone’s speech was political is a far closer question than the majority acknowledges,” Baker wrote. “While often — or perhaps always — abusive and paranoid, Stone’s many calls addressed a traffic violation program, pro bono legal assistance, and, frequently, the treatment of citizens by the state government. Under these circumstances, I believe that a reasonable person could conclude that at least some of Stone’s speech was political.”
Nevertheless, Baker wrote that he would affirm the denial of Stone’s motion to dismiss. He noted Article 1, Section 9 “provides that ‘for the abuse of’ the freedoms of speech, thought, and opinion, ‘every person shall be responsible.’
“I have little difficulty determining that a reasonable factfinder could only conclude that Stone’s speech was an abuse of the rights provided for by Article 1, Section 9. Thus, while I respectfully disagree with its analysis, I agree with the majority that we should affirm.”