Is the Pa. law that police used to charge a woman for Facebook posts constitutional?
A law that York County prosecutors used to charge a woman after she shared documents on her Facebook page about the killing of her 2-year-old nephew is unconstitutional, her attorney argued Wednesday. Preventing Sarah Mercado, also known by her maiden name Sarah Mullinix, from sharing information that could show York police have arrested the wrong killer is within her first Amendment rights, attorney Brandy Hoke said during a court hearing. Prosecutors charged Mercado, 35, earlier this year in connection with Facebook posts last year when she posted images of documents that indicated her nephew Dante Mullinix had been abused before the man charged with killing him had ever even met him. Police charged Tyree Bowie with criminal homicide because he was babysitting Dante in 2018 when the boy fell unconscious. The boy later died. Mercado believes Bowie is innocent. She also believes the criminal case against her is designed to shut her up for exposing the truth.  She appeared in York County court Wednesday, with her sister Leah, who is Dantes mother, for a hearing where her attorney was asking for the charges against her to be dropped. Mercado was charged with two counts of unauthorized release of information, which are second-degree misdemeanors, for sharing copies of medical documents and Children and Youth reports on a Facebook page last July called Justice for Dante, that is dedicated to finding his real killer. The documents, which Bowie obtained through discovery and gave to her, were prohibited from public release under the Child Protective Services Law, police say. Discovery, in legal proceedings, is an exchange of information between the parties about the witnesses and evidence theyll present at trial. Mercados attorney has argued that the information contained in those documents had been widely reported in the media before her client posted the images, plus, Hoke believes the Child Protective Services Law is being misapplied against Mercado. Hoke said the law was written for government workers with access to confidential files through their jobs. But prosecutors are arguing that it applies to anyone who shares Children and Youth Services documents. If thats the case, Hoke said, news reporters who might reference CYS documents and anyone who shares their stories, and anyone who shared Mercados Facebook posts could be prosecuted. In fact, anyone who simply tells anyone else about the material in the news or posts also could be charged under the prosecutions theory, she said. Could posting those violate this law, Hoke asked. The quarterly report that contained the details of Dantes case had been posted publicly on the DHS website, but was recently removed amid this criminal case against Mercado. Hoke now wants to defend Mercado arguing the law is against the first amendment for free speech, but prosecutors objected, saying she didnt previously make that argument so it wasnt allowed, under court rules. Hoke countered that prosecutors just filed their response Tuesday indicating they believe the law applies to everyone, which brought up the issue of constitutionality. 15 Dante Mullinix  The Common Pleas judge didnt rule on whether he would allow Hoke to pursue a First Amendment defense, but seemed intrigued by each sides interpretation and asked for them to file legal briefs detailing their positions. Although prosecutors have made their criminal case against Mercado for using images of actual documents, not any statements she made on social media, or to the media, Judge Craig Trebilcock said the law specifically says any information in records.  Its not limited to the actual documents or images of those documents, according to his reading. Heres the exact wording of the law:  A person who willfully releases or permits the release of any information contained in the Statewide database or the county agency records is guilty of a second-degree misdemeanor. What is the scope of that information? Trebilcock said. What does that mean?... Wheres the line?  He asked attorneys for both sides to submit their interpretations on what would run afoul of this law and what wouldnt by Aug. 30. The judge said he would try to rule on those arguments before Oct. 20. Then the two sides could strike a deal or ask for a trial date. Legal briefs filed by both sides remain under seal, because they reference the documents in question. But information from those documents already has been published by multiple news sites since 2018. PennLive reached out to Ken Paulson, director of The Free Speech Center at Middle Tennessee University, who questioned why a prosecutor would spend time trying this case. He sajd the Child Protective Services Law does not apply to Mercado as an ordinary citizen who is trying to educate the public about a newsworthy piece of information. After Wednesdays hearing, Hoke said she had never heard of anyone being criminal charged with this particular statute before. She said it previously functioned as an internal policy for Children and Youth Services and violators were pursued in civil court, not criminal court. Regardless of what Trebilcock decides, Hoke said the issue likely would be appealed. Both sides already have pledged to take the case to Superior Court if they lose in Common Pleas Court, she said. Leah Mullinix left her son Dante Sept. 6, 2018, with Bowie, whom shed met only three weeks before. He brought Dante to a hospital that day, where the boy was diagnosed with critical injuries: broken ribs, a battered penal area and scrotum, bite marks on his arms, and a lacerated liver and pancreas. He died a week later. The documents that Mercado posted showed Dante had herpes when he died, and Bowie did not have herpes, nor did Leah Mullinix. Dante also had a fractured wrist at the time of his death that appeared to have broken before he met Bowie, according to Mercado. READ MORE:  2-year-old suffers fatal injuries four days after being seen by childrens services