An Ohio courtroom may soon have to determine whether a blogger should face jail time for texting an image of Shrek’s penis to a public official.
Last week, The Columbus Dispatch reported that D.J. Byrnes—an Ohio blogger who runs a Statehouse gossip Substack called The Rooster—was arrested on a misdemeanor warrant at the Ohio Statehouse. Byrnes’ arrest, according to reporting by Signal Ohio, likely stems from a picture he texted to state Sen. Jerry Cirino (R–Kirtland) on May 6. The offending image? A “digitally altered version of Shrek, the ogre with a titular children’s movie franchise, with his penis exposed,” according to Signal Ohio. Police records did not identify Cirino by name, but the outlet confirmed he was the “recipient of the text messages based on the text messages themselves and other details within the police report.”
An affidavit with Byrnes’ arrest report described the ogre as “fully nude with an exposed and erect humanlike penis engaged in an act of masturbation,” according to the outlet. The text exchange also included a message calling Cirino “Young Mussolini.”
On May 8, Cirino reportedly emailed the Kirtland Police Department asking officers to file charges against Byrnes.
“Not only is the message harassing but the disgusting picture is pornographic in nature and not something I want to see on any of my devices,” said the email sent to Kirtland police.
After his arrest on June 1, Byrnes was booked into the Franklin County Jail, where he says he spent 23 hours in custody, according to a statement posted on The Rooster. The Columbus Dispatch reported that he was released on bond on June 2. Byrnes wrote that he would not comment on the specifics of the allegations, but he says he believes he will be found innocent in court. He was arrested on telecommunications harassment charges, according to Signal Ohio, and could face up to six months in jail.
In its analysis of the case, the Foundation for Individual Rights and Expression (FIRE), a pro–free speech organization, cautioned that, “as in essentially all First Amendment cases, context and details matter.” Based on the available facts, however, the organization wrote that “Byrnes should not be facing telecommunications harassment charges.”
FIRE argues that Byrnes’ “shrexting” did not amount to obscenity because the image fails to pass the three-prong obscenity test set by Miller. v. California: Would the average person see the work as appealing “to the prurient interest”? Does it depict sexual conduct in a “patently offensive way” as defined by state laws? And finally, does the work lack “serious literary, artistic, political, or scientific value”? The text was clearly a piece of “political mockery,” and it was not intended to “arouse anyone’s sexual interest,” FIRE wrote, meaning it fails the Miller test. The “handful of afternoon texts,” from what FIRE reviewed, did not constitute harassment either.
More details about Byrnes’ case may emerge when he appears in court, but if a public official did in fact direct the police department to arrest Byrnes because of his texts, that poses a clear threat to free speech. The Shrek image may be absurd, shocking, and hilarious (depending on your sense of humor), but being punished for exercising your free speech right to criticize and troll (or ogre) public officials is no laughing matter.
