Conviction for Posting Mayor’s Office Phone Number, Which Led to Hundreds of Threatening Calls from Poster’s Followers

From a decision in November in Hendry v. State, written by Indiana Court of Appeals Leanna Judge Weissmann, joined by Judges Mark Bailey and Elaine Brown:

Craig Hendry became a frequent visitor to city hall in the small town of Clinton, where he filmed confrontational interactions with employees and posted the videos to his YouTube channel. After he uploaded his first video from Clinton and listed the phone number of the mayor’s office in the video’s caption, city hall received hundreds of threatening phone calls and voicemails [apparently over about 30 days]….

There’s a lot going on in the case, including a conviction for “target[ing] the mayor’s assistant, P.K., banging on her closed office door and filming her through her closed blinds,” and “follow[ing] P.K. to her car.” But I was particularly struck by the prosecution for posting the phone number:

Hendry acknowledges that the phone calls and voicemails constituted harassment. The harassment statute at issue here criminalizes the placement of phone calls with the intent to “harass, annoy, or alarm” and without the intent of legitimate communication. After Hendry posted his video in April 2022, the city received over 350 threatening voicemails, and only a few conveyed actual matters of city business. Hendry acknowledged at trial that many of the messages were “disgusting and threatening,” and on appeal concedes that those threatening messages “constitute an ‘abuse’ of the right to free speech.” Hendry also does not refute the connection between his videos and the messages. Threatening calls spiked just after the videos were posted and continued in significant numbers in the weeks that followed. Most of the messages referred to the people and events depicted in Hendry’s videos….

A conviction as an accomplice requires evidence of “affirmative conduct, either in the form of acts or words, from which an inference of a common design or purpose to effect the commission of a crime may be reasonably drawn.” … Hendry claims that he did not participate in any “concerted action” with those who made the harassing phone calls to Clinton city employees and that he did not know about the phone calls until pre-trial discovery. But the record contains multiple pieces of evidence showing that Hendry: (1) knew that including the city’s phone number in his YouTube video posts would lead his viewers to call; and (2) actively facilitated that harassment campaign….

Though Hendry claims he “never knows how viewers react to any of his postings,” this is directly contradicted by his testimony at trial. Hendry stated that many of his viewers were “First Amendment enthusiasts” who “like to express their grievances via telephone, some via email, and some other ways.” Hendry then explained why he included the phone numbers in the caption: “people actually asked me for the information so that they could call.” … Hendry’s own testimony shows both a level of companionship with his viewers and an awareness that they often respond to his videos by calling the people featured. In fact, enabling viewers to call was the very reason Hendry put the numbers in the caption.

Hendry’s other conduct during and after the harassment shows that he recognized, and even celebrated, that his videos caused the onslaught of threatening voicemails….

Finally, the content of his videos provides important context. Hendry portrayed Clinton city hall employees in a negative light, to put it mildly. His videos included inflammatory language and baseless accusations of extreme employee misconduct—a conspiracy to kidnap Hendry, an employee being under the influence of drugs at work, and sexual relationships between co-workers. In his videos, Hendry goads employees to engage in confrontation, threatening to fight Chief MacLaren and asking Officer Finley to threaten him. Hendry filmed himself swearing at and threatening city employees, and the resulting voicemails matched that antagonistic tone. Hendry also explained in his April 2022 video that he “continuously call[ed]” the mayor’s office for “15 minutes,” modeling the tactic of repeated phone calls.

From this record, the jury could reasonably infer that Hendry knew his inflammatory videos would anger and incite an audience who had a practice of calling with grievances. The jury also could reasonably infer from this evidence that Hendry knew his videos, when accompanied by the city’s phone numbers and the invitation to “complain” and “ask” questions, would induce a wave of threatening calls and voicemails to Clinton’s city hall. A reasonable factfinder could conclude that Hendry knowingly and intentionally aided, induced, or caused his viewers to place threatening phone calls to the city, which constituted harassment under Indiana Code § 35-45-2-2(a)(1).

And the court rejected Hendry’s First Amendment defense:

[T]he First Amendment does not shield speech that aids or solicits criminal conduct merely because the speech, viewed in isolation, might otherwise be protected. See Giboney v. Empire Ice & Storage Co. (1949)…. Hendry’s conduct here falls squarely within this category of unprotected speech. He was convicted of aiding, inducing, or causing harassment because his inflammatory videos, with captions including the city’s phone number and an invitation to call and complain, induced his viewers to flood the phone lines with harassing phone calls. The conduct which he claims was protected speech was the very mechanism by which he knowingly induced the harassment.

Hendry never addresses this exception and thus provides no argument that his speech does not fall in this category. Instead, he argues his postings were not “true threats”—defending against a different category of unprotected speech. However, this “true threat” analysis is not relevant, as Hendry was not convicted of directly making threats but of causing harassment. And even the underlying harassment here does not require the transmission of any threats but merely placing calls with the intent to “harass, annoy, or alarm.” As a result, the “true threat” doctrine does not apply to the conduct at issue here: uploading inflammatory videos that included the city’s phone number and inducing his viewers to make the harassing calls.

Jennifer Anwarzai represented the state.