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The Pennsylvania Superior Court has ruled that a woman's derogatory Facebook posts about her ex-husband's new wife were not constitutionally protected speech and thus still qualified as harassment.

A three-judge panel of the court voted 2-1 to affirm the decision of the Dauphin County Court of Common Pleas, which sentenced Kelly D'Adderio to 12 months of probation, 100 hours of community service, plus fines and costs, after a jury found her guilty of harassment against Maria Memmi. 

D'Adderio was charged and convicted of one count of harassment, under Section 2709 of the Pennsylvania Crimes Code, after she posted a series of what prosecutors called “vulgar and inflammatory” Facebook posts about Memmi.

“'Dear Miss Maria Memmi, you were a life-long friend of mine, my son's Godmother even,'” one post read, according to the Superior Court's June 21 opinion. “'The day you crossed the friendship line and married my ex was the day you exposed your true colors. Ironically, that was the least of my concerns. Sadly, I find some pleasure that he cheated on you. I kind of feel you had it coming anyway. You seem obsessed with playing mommy to my kids. Let's see how that works out for you.'”

In other posts, D'Adderio questioned the paternity of Memmi's 9-year-old daughter and suggested Memmi was in an inappropriate relationship with the detective who was investigating D'Adderio's comments at the time.

On April 16, 2018, the trial court handed down D'Adderio's sentence and ordered her to have no contact with the child referenced in the Facebook posts, until the child reaches age 18.

D'Adderio appealed, citing two issues with the jury's conclusion. 

In her first issue, she argued that the Facebook posts were protected speech under the U.S. and state constitutions. D'Adderio also argued that her Facebook posts would have to be understood as being “about” Memmi and not “to” her since Memmi did not have a Facebook account at the time, though D'Adderio did concede that it was not the jury's responsibility to make such a distinction. 

But Judge Carolyn H. Nichols, writing for the Superior Court panel, rejected D'Adderio's constitutional argument, citing the U.S. Supreme Court's 1942 ruling in Chaplinsky v. New Hampshire, which held that “'resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.'”

“Instantly, appellant's Facebook posts did not express social or political beliefs or constitute legitimate conduct,” Nichols said, joined by Judge Paula Francisco Ott. “Rather, appellant made lewd comments, including sexualized language and references to the complainant's sexual activity, which could only serve to harass, annoy or alarm the complainant.”

Nichols added that it made no difference whether the posts were “to” or “about” Memmi.

D'Adderio also argued that the definition of “harassment” in the Pennsylvania Crimes Code is overbroad because it criminalizes “lewd and/or lascivious speech about another person [which] is constitutionally protected.”

D'Adderio contended that “a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.” She cited the state Supreme Court's 2009 ruling in Commonwealth v. Omar for the proposition that “a litigant asserting an overbreadth challenge is not required to demonstrate that the statute violated his own protected speech, but instead may prove a statute's unconstitutionality by demonstrating that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.”

But Nichols pointed to the Superior Court's 1976 ruling in Commonwealth v. Duncan, which said, “'In enacting 18 Pa.C.S. Section 2709(3), our legislature did not intend to proscribe isolated acts which would be of only minor annoyance to the average person, or which are constitutionally protected. The statute requires … acts which would seriously offend, we find, the average person; it requires the fact finder to infer a specific intent on the part of the accused, and it specifies that the conduct must be of a non-legitimate nature—conduct which is not constitutionally protected.'”

“Instantly, Section 2709(a)(4) requires an intent to harass, and it seeks to preclude communications lacking some legitimate purpose,” Nichols said. “As such, the statute does not punish constitutionally protected speech, and the statute is not facially overbroad.”

Senior Judge Dan Pellegrini noted his dissent but did not issue a dissenting opinion.

Counsel for D'Adderio, James Karl of the Dauphin County Public Defender's Office, could not be reached for comment. Ryan Lysaght of the Dauphin County District Attorney's Office also could not be reached.