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ALERT: Berea Municipal Court to decide whether writing a one-star Facebook review can land you in jail

Wednesday, March 3, 2021

Motion: Brook Park officials are trying to put a woman in prison for blowing the whistle on the nursing home that killed her mother.

BEREA, OH — The Berea Municipal Court will hold a hearing on March 5 to decide whether prosecutors can use Ohio’s stalking and telecommunications-harassment laws to put people in jail for leaving bad reviews about businesses.

The court is currently considering a motion to dismiss the charges in Brook Park v. Criscione, No. 20CRB01262, where Law Director Carol Horvath and Prosecutor Peter Sackett are trying to put Gina Criscione in prison for saying that the East Park Care Center killed her mother.

According to the motion, Ms. Criscione checked her mother, Dorothy Mandanici, into East Park Care Center several years ago. But the quality of care tanked soon after a new owner, Westlake attorney Laura Divincenzo, took over the nursing home and installed Sara Thurmer as administrator, the motion says: Ms. Mandanici was frequently dehydrated, severely bruised, injured by nursing aides, and regularly cut off from communication with her children.

Ms. Criscione scrambled to find her mother a new home. But while she was fighting against pandemic-related delays, her mother lost more than 30 pounds in her last weeks under Laura Divincenzo’s care, the motion says. By the time Ms. Criscione moved her mother to competent care at Mt. Alverna Village, the motion says, it was too late; Ms. Mandanici died soon after, still suffering from injuries East Park had claimed to have already treated and healed.

The motion says Ms. Criscione began picketing outside East Park and posting online to warn other families not to let their loved ones fall victim to Laura Divincenzo’s neglect. The motion says Ms. Criscione left a one-star review for the facility on Facebook, and police records show that soon after, Laura Divincenzo reached out to the police to ask them to file charges, claiming that Ms. Criscione was engaged in criminal harassment by blowing the whistle on her.

At her request, the Brook Park Police Department helped Ms. Thurmer file criminal complaints charging Ms. Criscione with telecommunications harassment and menacing by stalking. Among other things, the police report complains that Ms. Criscione “refers to the facility as the ‘East Puke Care Center’ and labels it ‘the scum of the earth.’” Both Law Director Horvath and Prosecutor Peter Sackett have decided to keep moving forward with the charges, despite the obvious First Amendment implications.

Although Ms. Divincenzo, Mr. Sackett, and Ms. Horvath are all licensed attorneys, they have shown no awareness that the First Amendment permits Americans to share their opinions about businesses, even—and especially—when those businesses pose a threat to public health.

Represented by Subodh Chandra and Brian D. Bardwell of The Chandra Law Firm LLC, Ms. Criscione is now asking the Court to dismiss the entire case against her, arguing that the statutes Law Director Horvath and Prosecutor Peter Sackett are using are unconstitutionally broad and vague, that all of the conduct they are trying to punish is protected by the First Amendment, and that they are selectively prosecuting her for conduct they tolerate in other settings.

“Some First Amendment questions are harder than others, but everyone knows that you can’t throw people in jail just because they say your business is awful,” Bardwell said. “Unfortunately, the prosecutors in Brook Park are so obsessed with making local businesses look reputable that they’re willing to throw anyone in jail who doesn’t play along. If they get away with it, everyone should probably think twice before leaving anything other than a five-star review for any business in Brook Park.”

The case has already attracted the attention of legal scholars; a group of First Amendment professors has also filed a brief explaining the many defects in the prosecution’s bizarre theory that the government should be policing the content of online business reviews.

Judge Mark Comstock has referred the motion to Magistrate Christopher Green, who will hold an evidentiary hearing to determine whether Law Director Carol Horvath and Prosecutor Peter Sackett are violating Ms. Criscione’s First Amendment rights. The hearing is scheduled for 10 a.m. on March 5 at the Berea Municipal Court, 11 Berea Commons, Berea, OH 44017.

Related Practice Areas
First AmendmentGovernment Ethics, Misconduct, Fraud, & AbusePolice Misconduct & BrutalityMalicious Prosecution, Abuse of Process, and False Arrest

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