Ohio man jailed for texting Shrek’s penis to a state senator. Your questions about Shrexting, answered.

Daniel Burnett is senior director of Communications at FIRE and Aaron Terr is director of public advocacy.

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Princess Fiona never complained, but Sen. Jerry Cirino sure did.

In May, the Ohio state senator emailed a local police chief, asking him to file criminal charges against a progressive blogger who texted Cirino an image of Shrek… enjoying his swamp stick.

The blogger, D.J. Byrnes, runs The Rooster political website.

According to Signal Ohio:

The text messages include Byrnes’ political commentary, him calling Cirino his oft-repeated and derisive nickname “Young Mussolini,” and Byrnes plugging his own newsletter.

It also contains a digitally altered version of Shrek, the ogre with a titular children’s movie franchise, with his penis exposed. An affidavit with Byrnes’ arrest report refers to the depiction of Shrek as “fully nude with an exposed and erect humanlike penis engaged in an act of masturbation.”

No Shrektile Dysfunction there.

On May 8, two days after Byrnes sent the texts, Cirino emailed Kirtland Police Chief Jamey Fisher, “officially filing a complaint” and asking the police to file charges against Byrnes.

Byrnes was arrested on Monday based on what appears to be the three texts.

He was released after 23 hours in jail, commenting on Instagram: “I believe that the facts presented in court will show that I’m innocent of the misdemeanor charge of telecommunications harassment.”

So… can the government prosecute Byrnes for his speech? Let’s look at the facts.

What is Byrnes charged with?

Byrnes is charged with telecommunications harassment, punishable by up to six months in jail. To be found guilty, the prosecution must prove that Byrnes sent the texts with the intent to “harass, intimidate, or abuse” Cirino.

What does the First Amendment say?

About Shrek’s schlong specifically? Nothing, surprisingly. But it does have a lot to say about speech criticizing government officials — that is, that it lies at the heart of our constitutional protection for free speech. Aside from very narrow exceptions to the First Amendment, such as true threats or obscenity, the government generally cannot punish people for saying things to or about public officials, even if some find the speech offensive, insulting or vulgar.

Political speech doesn’t have to be serious or reverent to have First Amendment protection.

Is this harassment?

The First Amendment also doesn’t protect conduct that amounts to harassment, properly defined. But from the content FIRE has been able to review, this was not punishable harassment.

Enforcing harassment laws stays within constitutional lines when, for example, it focuses on unprotected speech like true threats or a repeated, unwanted course of conduct aimed at invading someone’s privacy or disturbing their peace. Think of someone making dozens of calls in the middle of the night to keep someone awake, or continuing to send dozens of texts day after day after being told repeatedly to stop. But a handful of afternoon texts — including a single image — from one easily blockable number, looks like protected speech, not criminal harassment. Especially absent any apparent request to stop.

Is this obscene?

As with harassment, the First Amendment has a high bar before the government can punish or prohibit something as legally obscene. And this exception to what the First Amendment protects doesn’t automatically apply to speech that someone finds “disgusting” or “pornographic.”

In Miller v. California, the Supreme Court ruled that expression is legally obscene only if it satisfies three elements. First, the material, taken as a whole, must appeal to the “prurient interest” (an excessive interest in sex). Second, it must depict sexual conduct in a patently offensive way as defined by law. And third, the material must lack any serious literary, artistic, political, or scientific value. It’s a demanding standard.

If a work fails to meet even one of these three elements, the First Amendment protects it.

The Shrek image may have been crude or vulgar. But in context, there is no serious argument Byrnes sent it to arouse anyone’s sexual interest, let alone that it satisfies the Miller test. Byrnes sent it to another adult, reportedly accompanied by political commentary describing Cirino as “Young Mussolini.” That’s protected political mockery, not obscenity.

So, can you text images of ogres in a state of Shrekstacy?

Before anyone undoes their gumdrop buttons, remember that, as in essentially all First Amendment cases, context and details matter. But from what FIRE has seen, Byrnes should not be facing telecommunications harassment charges.

Why isn’t FIRE sharing the image?

We don’t have the image and are relying on public reporting. We’ll report back if that changes.

What should I do if I find myself the victim of unwanted images of Shrekstracurricular activities?

The easiest solution: Block the number. Unless, of course, you’re into that sort of thing.