One year after New Canaan's Teri Buhl was found guilty on misdemeanor charges of harassment and breach of peace, judges at the Appellate Court in Hartford heard arguments Tuesday from her defense and the state.
Buhl's attorney, Stephan Seeger, argued that the evidence presented by the state during the trial was not sufficient for finding her guilty beyond a reasonable doubt, that the state shifted the burden of proof on the defendant and impinged on her First Amendment rights as an "investigative journalist."
Buhl is appealing the April 4, 2013, verdict, which led to a sentence of 30 days in jail, one year of probation and a strict order not to interact with the victim or the victim's family. However, the sentence is on hold until the appeal process is completed.
Buhl was accused of harassing her then-boyfriend's daughter by posting parts of the teen's private journals, which detailed underage drinking and sexual activity at a party, on Facebook in June 2010. New Canaan police arrested Buhl in October of that year.
The prosecution claimed Buhl created a Facebook profile under the alias "Tasha Moore" on the day of New Canaan High School's graduation and posted photographs of journal writings of the then-17-year-old high school senior. The diary was in the back of the teen's bedside drawer, according to her arrest warrant affidavit.
One day after graduation, the girl's father received an anonymous Priority Mail package with photocopies of his daughter's diary entries and a letter describing the girl's actions while at the party, according to court documents.
Buhl has denied having a Facebook account with the name Tasha Moore or posting the girl's writing on the website, the affidavit said. She admitted to sending the package but not to writing the letter or obtaining the photographs.
Seeger told the three-judge panel Tuesday that Buhl is an investigative journalist who was working on an underage drinking story and could not reveal her confidential source.
Jonathan Sousa, special deputy assistant state's attorney, said a journalist's privilege does not apply in a criminal context. He mentioned the 1972 Supreme Court decision in Branzburg v. Hayes, which ruled that the First Amendment's guarantee of "freedom of the press" did not, of its own force, require the recognition of a journalist-source privilege.
"Law enforcement trumps news gathering," Sousa said.
"Young people make mistakes, whether with alcohol, sex or drugs, and it's because they're young," Wenzel said on April 4, 2013, explaining that teenagers don't deserve to have their mistakes publicly broadcast online.
However, Seeger noted testimony showed that Tasha Moore's online post had privacy restrictions, which he said would rule out the harassment charge since the teenager viewed the post through someone who was friends with Tasha Moore on Facebook. He questioned, therefore, the intent to harass or harm the teenager herself.Read Full Article
Seeger said Wenzel did not understand enough about Facebook or its mechanics and that he drew inferences when sentencing Buhl. Seeger also noted there was no expert testimony from a Facebook representative or a social media expert during trial to educate the court about the website's settings.
Sousa said the content posted on Facebook could, in fact, be deemed public information, since several of the teen's closest friends saw the post. Even without testimony from Facebook, he said, the court already has proved that Buhl was the perpetrator of the crime.
Sousa said Buhl's source protection "theory" was proved wrong and that evidence established she intended to annoy the father. He said the dissemination of the diary entries on social media caused the girl and her father to fear someone had entered their home and that the post was displayed with the intent to torment the teenager.
During the investigation, police executed search warrants for Tasha Moore's Facebook page and determined that Buhl, using her Cablevision account, logged on to the website from her home when the teen's writings were uploaded, according to the affidavit. Seeger said there was no documentation from Facebook linking Buhl's IP address to the one attached to the Facebook posts.
Seeger said the court established no connection between Buhl and Tasha Moore and that Wenzel could not find a direct link between the defendant and the Facebook poster.
Sousa disputed the argument saying the evidence found that Buhl mailed materials to her then-boyfriend's house and had frequent access to the house. In addition, he said, the court found no evidence of forceful entry to the victim's home while the teen and her friends were attending a graduation ceremony at the high school.
Seeger said Buhl's conviction is unfair because the judicial system lacks understanding of social media mechanics.
"We don't know enough about Facebook," Seeger said, adding that there's a "greater need going forward in our society" to understand how the law applies to social media posts.
Because of that, Seeger said, the state shifted the burden of proof to the defendant by asking "who else" could have committed the crime.
The defense previously argued that Buhl's relationship with her ex-boyfriend and his daughter was a good one, and therefore she had no motive to post the journal entries.
As for the First Amendment argument, Sousa said the claim cannot be considered because the verdict was based on physical action and not speech since Buhl sent copies of the girl's journal entries to her father. The content of the Facebook post, which includes oral sex descriptions, also does not afford First Amendment protection, Sousa said.
Sousa said it could take at least two months for the judges to make a decision.