Supporting free speech is often a difficult task that demands defending the most despised individuals or offensive views in our society. That is certainly the case with Richard Pusey, 42, who became a widely hated figure after he filmed and mocked police officers who were dead or dying on the road after a crash. Pusey has been convicted of the crime of “outraging public decency,” an ambiguous crime that would allow the broad criminalizing of speech. Police officers Lynette Taylor, Glen Humphris, Kevin King and Joshua Prestney lost their lives in the accident.

According the the BBC, police pulled over Pusey, a mortgage broker, in April 2020 for driving his Porsche at 93 miles per hour on Melbourne’s Eastern Freeway. When Pusey was urinating behind some bushes, the waiting officers were struck by a truck in an emergency stopping lane.  He then proceeded to take out his phone to film the dying officers and mock them.  Pusey let loose a string of profanity-laden taunts while saying things like “he’s smashed,” “justice,” “absolutely amazing” and “beautiful.” He added “I think everyone got cleaned up” and I guess I’ll be getting a … Uber home, huh.”

The videotape is disgusting and, like most people, I was furious after watching it. The female officer pinned under the truck is believed to have been alive while Pusey celebrated. When a bystander ran up to render aid and asked for Pusey to help, he just said “They’re dead,” and continued filming.

The fact, however, that Pusey did nothing directly to harm the officers. His speech was obnoxious and disgraceful but it was ultimately speech.

In the United States, Pusey would have been protected from criminal charge. Indeed, he would likely be protected from tort liability. Indeed, the leading case in the area involved the failure to render aid.

In the United States, the no duty rule was the basis for the famous ruling in Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959) where a man watched another man drown without taking any efforts to assist him. Even though Bigan dared Yania to jump into the hole full of water, the court found that this made no difference since these taunts were “directed to an adult in full possession of all his mental faculties constitutes actionable negligence is not only without precedent but completely without merit.” On the rule itself, the Court wrote:

Lastly, it is urged that Bigan failed to take the necessary steps to rescue Yania from the water. The mere fact that Bigan saw Yania in a position of peril in the water imposed upon him no legal, although a moral, obligation or duty to go to his rescue unless Bigan was legally responsible, in whole or in part, for placing Yania in the perilous position: Restatement, Torts, § 314. Cf: Restatement, Torts, § 322. The language of this Court in Brown v. French, 104 Pa. 604, 607, 608, is apt: “If it appeared that the deceased, by his own carelessness, contributed in any degree to the accident which caused the loss of his life, the defendants ought not to have been held to answer for the consequences resulting from that accident. … He voluntarily placed himself in the way of danger, and his death was the result of his own act. … That his undertaking was an exceedingly reckless and dangerous one, the event proves, but there was no one to blame for it but himself. He had the right to try the experiment, obviously dangerous as it was, but then also upon him rested the consequences of that experiment, and upon no one else; he may have been, and probably was, ignorant of the risk which he was taking upon himself, or knowing it, and trusting to his own skill, he may have regarded it as easily superable. But in either case, the result of his ignorance, or of his mistake, must rest with himself – and cannot be charged to the defendants”. The complaint does not aver any facts which impose upon Bigan legal responsibility for placing Yania in the dangerous position in the water and, absent such legal responsibility, the law imposes on Bigan no duty of rescue.

Recognizing that the deceased Yania is entitled to the benefit of the presumption that he was exercising due care and extending to appellant the benefit of every well pleaded fact in this complaint and the fair inferences arising therefrom, yet we can reach but one conclusion: that Yania, a reasonable and prudent adult in full possession of all his mental faculties, undertook to perform an act which he knew or should have known was attended with more or less peril and it was the performance of that act and not any conduct upon Bigan’s part which caused his unfortunate death.

The ill-defined crime of outraging public decency would allow sweeping enforcement of the criminalization of speech — and likely civil liability.

Adding to these concerns is that Pusey appears to have a personality disorder that the court acknowledged may have contributed to the crime.

The court is quoted as declaring “Your conduct in recording the police officers in their dying moments, together with the words you used as you recorded, was not only derogatory and horrible… but it was also callous and reprehensible conduct.”

All of that is demonstrably true. However, it does not mean that it should be a crime. Free speech requires a bright line of protection. Ambiguous criminal provisions create a chilling effect on the exercise of this right. Indeed, the standard is undefined precisely because it cannot be defined with any specificity or clarity. That is precisely why it is so dangerous to free speech values.  Pusey deserves condemnation and will likely remain “the most hated man” in the country.  However, courts should not be equally reckless or unthinking in the application of the criminal code to his reprehensible conduct.