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Free speech or criminal harassment? Judge to mull charges filed against local woman

Posted at 4:27 PM, Mar 05, 2021
and last updated 2021-03-05 18:37:27-05

BROOK PARK, Ohio — A Parma Heights woman's defense attorneys have asked a magistrate judge to dismiss the charges against her after Brook Park prosecutors filed harassment and stalking charges last year related to the woman's online posts that were critical of a local nursing home facility. Some of the leading constitutional law experts, in particular those with expertise in First Amendment law, have expressed concern about the case and, specifically, the constitutionality of two state statutes used in the case.

In October 2020, Gina Criscione was charged with two first degree misdemeanors: telecommunications harassment and menacing by stalking. According to court documents, she's accused of engaging in a "pattern of conduct" intent on causing distress by "posting multiple negative messages" to social media directed toward East Park Care Center and its administrator. Court documents also allege that Criscione posted several messages on social media with "the purpose to harass and annoy" the nursing home administrator.

The misdemeanor charges against Criscione were an emphatic salvo in a summer of discontent between her, East Park Care Center and its administrator.

"She just wanted to let people know that what happened to her mother and she wanted to let people know how to keep their family safe," said Brian Bardwell, Criscione's attorney.

Criscione's mother, Dorothy Mandanici, had been a resident of East Park since 2017 prior to her being transferred to another skilled nursing facility in late May 2020. Prior to her mother's transfer, Criscione expressed concern and criticism for East Park and its staff, alleging that her mother suffered dehydration and bruising while in East Park's care, according to a Brook Park police report. East Park staff denied those allegations.

According to East Park's owner, Laura DiVincenzo, who sent an email to a BPPD sergeant that was entered into the court record, Criscione's mother was transferred to the skilled nursing facility following a hearing conducted by the Ohio Department of Health after the hearing officer found in favor of East Park's determination that it could no longer provide the care for Criscione's mother. Criscione's mother, Dorothy Mandanici, passed away a few weeks later.

While Mandanici was a resident of East Park, DiVincenzo alleges Criscione complained regularly about her mother's care and was informed that she could move her mother to another facility at any time. Both before and after Mandanici's death, Criscione made numerous posts on social media, criticizing East Park and, specifically, its administrator.

"I will find justice for mom and all the others in East Park Care Center that are not being cared for with a failing administration," Criscione wrote in a Facebook post.

In subsequent, undated posts that were submitted into the court record as a defense exhibit, Criscione described her criticism of the nursing facility as a "crusade" to expose what "they are doing wrong behind closed doors."

"Just another day at East Puke Care Center [sic]... never put your parents in here it is the scum of the earth [sic]," one post reads. "... [the administrator], she sucks. She ruined communication between me and my mother she's a lying [explitive] [sic]."

In addition to the Facebook posts, Criscione also reportedly left a one-star review on what appears to be East Park's Google page. Criscione also frequently picketed and protested outside East Park's facility in Brook Park. According to DiVincenzo's email to Brook Park police, Criscione would allegedly call the nursing home as many as "ten or more times per day" to check on her mother as well as texting the nursing home administrator "at all hours of the day and night."

"This is a woman who is online working through her grief," Bardwell said. "All [prosecutors] are saying that Gina did is post on Facebook and walk in front of these nursing homes with a picket sign warning people that this place is dangerous. All of this stuff is in the heartland of First Amendment protection. If everybody said things that everybody liked, we wouldn't need the First Amendment."

Bardwell and other First Amendment scholars have been critical of the decision to file charges against Criscione, arguing that her online posts and protests on public sidewalks are clearly grounds for First Amendment protections. In a lengthy, 24-page motion to dismiss the charges, Bardwell contends that the criminal case against his client runs afoul of the First Amendment for multiple reasons and it has the ability to prevent others from voicing opinions and criticisms about private businesses.

Read the full motion to dismiss below:

Defense's Motion to Dismiss by Wews WebStaff on Scribd

"When I first heard this narrative unfolding, I immediately thought the story was going to end in, 'and so we've been sued for libel.' Instead, it ends in, 'we're facing a year in prison.' It's truly insane," Bardwell said. "What we know is that people leave bad reviews about other businesses all the time. What we don't see is the prosecutor's office getting involved."

Throughout the nation's history, the U.S. Supreme Court has consistently and regularly overturned laws and lower court decisions to affirm strong protections for free speech. Whether it is Westboro Baptist protesting at soldier funerals or people protesting the Vietnam War, even unpleasant speech is still free speech.

Prosecutors argued Friday before a magistrate judge that Criscione's right to free speech was taken into consideration when they later amended the criminal charges against her.

"We made a review of the complaints. We made a review of the motion that was filed. I talked to all of the people you can imagine, police officers, the victims and employees of the nursing home. We realized that we had to protect this defendant's rights," said prosecutor Peter Sackett. "That's the reason we amended the complaint: to protect her rights."

Sackett argued in a hearing Friday morning that it was Criscione's phone calls -- both in number and the content of the calls -- that warranted criminal charges. While Bardwell said Criscione's phone calls were only to check on her mother and her mother's well-being, Sackett said the calls often turned into harassment.

"[There were] 2,000 phone calls in a 17-month period, either to [the victim's] cell phone or her regular phone or to her office phone. The communication not just harassed her but also caused her abuse...There is no doubt in my mind that it wouldn't take 100 phone calls of the nature of these calls to have her feel, harassed, threatened or abused."

After the short hearing on Friday, the magistrate judge said he would issue a ruling on whether there was probable cause to warrant Criscione's arrest. After that, the judge said, if necessary, he would issue a ruling on the constitutionality of the charges. Bardwell said he intends to argue that the case is nothing more than the criminalization of free speech.

"If you have excellent service or you got very poor service, people naturally want to let people know. In Brook Park, right now, they need to be very careful about that," Bardwell said. "The First Amendment is the First Amendment and we want to make sure the court gets that right in this case."