CLEVELAND, Ohio — A 64-year-old woman’s Facebook posts blaming a Brook Park nursing home and its administrator for her mother’s death could land her in prison for up to a year in a case that has ignited a battle over the First Amendment.
Lawyers representing Gina Criscione say the first-degree misdemeanor telecommunications harassment and menacing by stalking charges she faces in response to her criticisms of East Park Care Center and administrator Sara Thurmer violate Criscione’s freedom of speech.
A Berea Municipal Court magistrate on Friday held a brief hearing to determine whether there is enough evidence for the case to go to trial. The magistrate, Chris Greene, is expected to issue a ruling next week and, if the case goes forward, schedule another hearing to discuss the First Amendment issues.
Criscione’s attorneys from the Chandra Law Firm and six law school deans and professors who teach First Amendment law in Cleveland and one in Los Angeles filed briefs asking the court to drop the charges and find that the First Amendment protects the Criscione’s posts.
Prosecuting Criscione, the experts warn, would send a message that anyone who dares criticize a business or medical institution online could face the wrath of a vindictive business owner if they can convince a local prosecutor that the negative comments caused them harm.
“The implications are enormous,” attorney Brian Bardwell said in a Thursday phone interview. “Anyone could be put in jail for saying anything that someone perceives as abusive or causing distress. They are all in serious danger if the Brook Park law department’s office gets its way.”
Brook Park Assistant Law Director and City Prosecutor Peter Sackett, who filed the charges against Criscione in October after Brook Park police received a complaint from Thurmer and East Park Care Center President Lauren DiVincenzo, said in an email Thursday that he “cannot comment on pending cases.”
DiVincenzo did not respond to a request for comment on Thursday. Thurmer could not be reached for comment.
Sackett said during Friday’s hearing that Thurmer quit her job at East Park and took a job at another facility due to the stress over her case.
Court records show that Criscione was charged initially based on her Facebook posts, but Sackett this week — days before the hearing that has been scheduled since January over First Amendment issues — filed motions seeking to amend the charges to cover instead more than 2,000 phone calls that Criscione placed during the final 18 months of her mother’s life.
According to Bardwell, Sackett’s motion incorrectly says that Criscione made those phone calls to Thurmer’s personal cellphone number. Phone records that Sackett provided in discovery showed the Criscione was calling the home’s front desk to speak to either her mother or ask the staff about her mother’s care, he said.
“It’s really insane to think that you and I could get thrown in jail because you or I called to check on our mom,” Bardwell said.
Sackett said during Friday’s hearing that he asked to amend the charges after Criscione’s attorneys filed the motion to dismiss because the original charges filed against Criscione “raised First Amendment issues.”
“We realized that we had to protect the defendant’s rights,” Sackett told Greene.
Greene said he will decide whether to grant Sackett’s request to amend the charges after he decides whether there is enough evidence that Criscione committed a crime to allow the case against her to proceed.
Criscione’s mother, Dorothy Mandanici, moved into the facility in 2017, according to court records. DiVincenzo, a Westlake-based attorney, took over as president of the facility in 2018, the records say. Criscione and her attorneys say that’s when the care Mandanici received at the facility declined, and she was eventually transferred to another facility on May 22.
She died less than a month later, at 88 years old.
Criscione took to Facebook to voice her displeasure with her mother’s care in the final year of her life.
Criscione wrote that her mother was severely dehydrated and lost more than 30 pounds in the final months she was at East Park Care Center, according to copies of the posts included in court records. Criscione accused the facility of being infested with bed bugs and refusing to let Criscione speak with her mother, the posts showed.
She also called Thurmer a “lying b—h” in one post, left a one-star review of the facility on Google. She created a Facebook group to collect stories from other patients’ family members. She picketed outside the facility for about a month following her mother’s July death after she was transferred to another facility.
In another post, Criscione said she was going to expose Thurmer “for what you really are” and said she had nothing to lose, a copy of the post attached to court records shows.
DiVincenzo reached out to the police in September to file a police report seeking to press charges against Criscione, according to court records. DiVincenzo sent an email to Brook Park Police Sgt. Harold Duncan that included photographs of 15 of Criscione’s Facebook posts, which DiVincenzo said displayed “telecommunication harassment and a pattern of conduct intended to inflict mental distress on” Thurmer, a copy of the email attached to court filings show.
DiVincenzo wrote that Criscione’s mother was moved to a different facility after a hearing officer at the Ohio Department of Health determined that East Park could no longer provide the care that Mandanici required, a finding that East Park had asked them to make.
DiVincenzo said before the facility, and other nursing homes went on lockdown due to the coronavirus pandemic beginning last March, Criscione was at the facility nearly every day and continuously complained about her mother’s care. She called the facility several times a day, DiVincenzo said.
Thurmer wrote in a statement to police contained in the court filings that, as she did with all concerned family members of the facility’s residents, she gave Criscione her personal cellphone number.
“Gina did take advantage of this and would call me excessively,” Thurmer wrote. “I would address and resolve her issues and concerns right away to assure her that her mother’s care was in place and alleviate those anxieties for her.”
DiVincenzo wrote that Criscione went as far as to texting Thurmer while Thurmer was vacationing in Europe.
DiVincenzo also wrote that staff at the facility had reported seeing Criscione drive into the private road on the facility that same month, past signs that read “no trespassing.”
“Ms. Criscione is blatant in her harassment attacking Ms. Thurmer’s reputation and professional standing, causing Ms. Thurmer mental distress,” DiVincenzo wrote to police.
A copy of a police report attached to court filings shows that Duncan called Criscione after DiVincenzo emailed him. Duncan wrote that Criscione said that “she has said her (piece) on Facebook and she is done” and denied driving on the facility’s property. Criscione said she made the posts on her page private and not viewable to the general public.
Duncan then met with Thurmer, who said that Criscione caused her “stress both professionally and personally” because people at other nursing homes contacted her to tell her about Criscione’s posts. Thurmer also said she heard that Criscione came on the property, and she feared for her safety, the report said.
Neither woman said in the written statements to police whether they asked Criscione to stop contacting or posting about Thurmer and East Park Care Center.
Duncan referred the case to Sackett. On Oct. 15, Thurmer signed a notarized complaint filed in Berea Municipal Court to charge Criscione with telecommunications harassment and menacing by stalking.
The complaint charging Criscione with telecommunications harassment says that Criscione “did knowingly post several text and video/audio messages to a social media website with the purpose to harass and annoy Sara Thurmer.”
The complaint charging her with menacing by stalking says that Criscione “did knowingly engage in a pattern of conduct with purpose to cause mental distress by posting multiple negative messages to a website in regards to” Thurmer, as well as “trespassing on the property of the East Park Nursing Home.”
Prosecutors did not charge Criscione with trespassing.
Sackett did not sign the copies of the complaint filed with Berea Municipal Court, copies of the documents show.
First amendment issues
Bardwell said he immediately recognized potential First Amendment ramifications with Criscione’s prosecution.
The First Amendment generally protects speech that doesn’t directly incite violence or disorder, but the way Ohio’s telecommunications harassment and menacing by stalking charges are written essentially allow overly aggressive police and prosecutors to charge someone for almost any online speech that is critical, so long as the criticized person or entity says the speech caused them “mental distress,” Bardwell said.
He questioned whether a conviction in Criscione’s case would set a precedent for businesses to prosecute people who leave bad reviews of restaurants on online reviewing websites such as Yelp.
“If it is successful, you basically could see the end of any kind of user reviews online,” Bardwell said. “Nobody is going to leave anything other than a five-star review if the prosecutor and the business owner and the police can go and file criminal charges against you for saying that review doesn’t help their business.”
In his motion to dismiss, Barwell posed several hypothetical questions about whether Brook Park authorities could charge a person with the crime for contacting Sen. Robert Portman’s office every day to demand he support a $2,000 stimulus check or for a couple going through a divorce to complain on Facebook about their soon-to-be ex-spouses.
“In short, it imposes a six-month jail sentence on anyone who uses the Internet to say anything very scary or mean,” Bardwell wrote.
Seven law school professors — Case Western Reserve University law professors Jonathan Entin, Andrew Geronimo and Raymond Ku, Cleveland-Marshall College of Law professors David Forte, Stephen Lazarus and Kevin O’Neill, and UCLA law school professor Eugene Volokh — signed a friend-of-the-court brief arguing the judge should dismiss the case because Ohio’s laws are too vague.
The professors said that as written, Ohio prosecutors could file charges against almost any person who posts something online that another person doesn’t like. Criscione’s case is proof of that, they argued. As for her specific comments, courts have previously upheld a person’s right to publicly criticize businesses and medical institutions over their care as matters of public interest, and Criscione’s criticisms of East Park fall squarely under those guidelines. The only exception would be if Thurmer and East Park could prove that Criscione was knowingly posting false information. Even then, the right move would be to file a defamation lawsuit against Criscione.
“If Ms. Criscione were being prosecuted for speaking directly to a particular person after that person had told her to stop, this would be a different case; likewise, if she were being prosecuted for true threats of illegal conduct,” the filing says. “But this case involves fully protected speech: consumer complaints conveyed to the public.”
Sudden change in prosecution
On Monday, nearly two months after the motion to dismiss and four days before the scheduled hearing on it, Sackett filed a motion asking Green for permission to amend the charges against Criscione to no longer cover her written comments and instead focus on any telecommunications.
The state’s rules for court proceedings say courts can allow prosecutors to amend charges against someone at any point during the case so long as the changes do not change the type of crime charged.
On Wednesday, Sackett filed a reply to the motion to dismiss in which he argued that the case is no longer about the First Amendment.
Sackett’s motion said that Criscione called Thurmer’s personal cellphone more than 2,000 times over 17 months, “an average of over six times every day,” the motion says. Sackett’s motion also put the phrase “personal cellphone” in a bold and underlined font.
“These calls brought great mental stress upon Ms. Thurmer,” Sackett wrote. “[Criscione] knew exactly what she was doing.”
However, Bardwell said that the evidence Sackett handed over as part of the discovery process shows that those phone calls were mostly ones that Criscione made to the facility’s front desk to speak to her mother in the home and not to Thurmer’s personal cellphone.
DiVincenzo’s email to Duncan also said that Criscione called the facility, not Thurmer’s cellphone, “sometimes ten or more times a day.”
Sackett said during Friday’s court hearing that Criscione made the calls to Thurmer’s cellphone, home phone, her office line and the facility’s desk. He did not address his assertion in the filing that the calls were only to Thurmer’s cellphone.
Sackett said that the state’s laws for telephone harassment hinge on the victim’s belief that the communication is threatened, “not the belief of the lawyers and not even your honor’s belief,” Sackett said.
“It wouldn’t take 100 calls of the nature of these calls to have [Thurmer] feel harassed, threatened or abused,” Sackett said.
Bardwell asked Greene to reject Sackett’s request to amend the charges and instead dismiss the case all together and allow Sackett refile the charges under the ones he feels are correct.
Bardwell told cleveland.com that all of the evidence from the police report to the complaint shows that Criscione was prosecuted over her Facebook posts.
The First Amendment still covers speech whether it is made one time or 100 times, as long as the person receiving the speech does not object to it, Bardwell said. He also pointed out that Thurmer told police she willingly gave Criscione her cellphone number to make herself “completely available” to Criscione and to quickly alleviate her concerns about her mother’s care, and that neither Thurmer’s or DiVincenzo’s statements to police said that either of them told Criscione to stop contacting the facility.
“Now we’ve gone from a world where no one is allowed to talk frankly about businesses online, to instead a new approach where people are not allowed to contact the medical providers in charge of their family’s care,” Bardwell said.