Upcoming Case to Challenge Florida’s Mass Shooting Threat Law

Is it a crime to post a joke about a mass threat? Florida’s law makes it a crime to publish such a threat, including posts on social media, and does not require that there be an actual harmful intent. In a few weeks, a Florida appellate court will determine if the law will stand.

David Puy, and 18-year old in West Boca Raton, made a post on Snapchat that said, “On my way, school shooter!” He says he was actually on his way to meet friends for dinner, and meant it as a joke. There’s no indication he had nefarious plans, or even owned any guns, but posting the language that sounds like a threat made it a crime. The fact that he claims to be joking does not make a difference under Florida’s latest version of the threat law, updated after the shooting a Marjory Stoneman Douglas High School in Parkland, Florida.

Puy challenged the law unsuccessfully at the trial level, and the case is now on appeal. It’s’ believed to be the first to challenge the Constitutional validity of the new version of Florida law. The issue is whether or not his words, which do not meet the historical definition of a true threat, are protected by the First Amendment. The appellate court is scheduled to hear oral arguments March 10, though it will likely be several months before the ruling is released.

Exotic Dancer Arrested for Threatening a Mass Shooting

Brein (Brien) Basarich

An exotic dancer from Lakeland, Florida was arrested last week for allegedly posting threats about a possible mass shooting online. Brein Basarich posted on Tumblr under the username “taking lives” that she was thinking about purchasing An AR-15 and had a “vision” of a bar or club with one way out and plans and firing that rifle into a crowd. Her name has also been reported as “Brien Basarich”, I’m not sure which one is correct.

This is a poor criminal case against her… the ‘threats’ that she posted probably do not qualify as threats under Florida law. While posting something on the internet is sufficient to satisfy the “written” element, generally threats must be pretty specific, and not just generalized talk about her “visions” or conditional claims that she could do something. She will say that musing about her fantasies is not a threat, and that she has a Constitutional right under the first amendment to write about her musings, even if they might be violent or unpleasant. That fist amendment protection does not extends to “true threats“, if this qualifies. Obviously law enforcement is sensitive to the through of a shooting at a club, especially so close to where the Pulse tragedy occurred, but they would likely need something more to sustain a prosecution than has been reported so far. Without that, the prosecutors may be forced to drop the charges. It will probably be a few weeks before the filing decision is made.

If You Think You Have a Secret, You’re Probably Wrong

Thanks to the omnipresence of electronic devices in our lives today, somebody probably knows everything you do. You have a cell phone in your pocket, which is essentially a listening device, your computer might have a camera on it that is potentially watching your every move, HAL 9000 style, and you might even be wearing a smart watch that is literally following you every step. All of those are able to collect data, store it, and potentially share it with others… perhaps even authorities. It’s potentially an avenue for the government to get in your homes and bedrooms.

Much of this technology is new, and the courts are still trying to determine what the limitations are on privacy, and what the government can access and use. The latest test case is actually in Germany, where prosecutors are using data compiled by Apple iPhone’s Health App: an app that is standard and pre-installed on the last several versions of iPhone. The Defendant refused to give up his passcode, by a cyber-forensics firm was able to crack it and give the data to prosecutors.

There are a lot of issues related to this, particularly here in the United States where different Constitutional rights come in to play. Obviously, the rights to privacy, unreasonable search and seizure, and due process are involved, but a major case last year even involved First Amendment aspects. In Arkansas, James Bates was accused of killing his friend Victor Collins, who was found drowned in Bates’ hot tub. In order to strengthen their case, prosecutors sought info from his iPhone to track his phone calls, and even his smart utility meter to demonstrate his water use (they planned to argue that he had hosed down his deck).

The prosecution also went after Alexa- the digital assistant program that works with his Amazon Echo device. Alexa listens and potentially records everything within the range of its microphone, so there’s a major question whether people would have an expectation of privacy around one. The prosecutors sought to obtain the data, when Amazon itself entered the fray with another claim: that they should not have to turn over the data because it would violate the First Amendment… that it could have a chilling effect on protected expression.

Ultimately, the Bates case did not decide the matters. Kathleen Zellner, the attorney who is handling Making a Murderer’s Steven Avery’s post-conviction claims, took over the case and since her defense was not dependent on the Amazon data, waived any objection and it was turned over. Ultimately, it probably did not play a role, as additional medical and forensic reviews apparently convinced the prosecutors that there was not a murder, at least not one that could be proven, and the charges were dropped without the case having to go to trial.

In the meantime, be aware that there is the potential that the government can find out a lot about you, from your computer, your social media, your phone, your watch, your car, your video game, your pacemaker, and in this case, they didn’t just go after Alexa, they used Bates’ hot water heater to charge him with a murder.

You May Get a Felony Charge If You Threaten Somebody on Facebook in Florida

Timothy O’Leary

The First District Court of Appeals upheld a conviction this week of a man who posted a threat to a family member on Facebook. O’Leary v. State, Slip Op. No. 1D12-0975 (Fla. 1st DCA, 2013). Timothy O’Leary was charged under Florida Statute Section 836.10, which makes it a felony of the second degree to send a written threat to someone. The court, on an issue of first impression, found that posting such a written threat on Facebook constitutes “sending” that message, and qualifies for prosecution under the statute.

The statute was amended in 2010 to include electronic communications. This is the first time that I have heard of Facebook comments, or comments on other social media,being charged under this section of the law. I have some concerns about the law being applied to a Facebook status, but until contrary law is published, such Facebook comments could potentially land you up to fifteen years in prison.

I have some major concerns about this type of prosecution. First, it appears to run afoul of the First Amendment. Publishing comments on Facebook, just like comments in traditional media, are generally going to be protected speech under the First Amendment. The most commonly recognized exceptions are related to speech that will cause an immediate breach of the peace. Oliver Wendell Holmes famously gave the example of shouting “Fire!” in a crowded theater. While this type of threat could be construed as fighting words, the ethereal nature of internet publishing make an immediate breach of the peace unlikely.

Additionally, the “threat” posted in this case is one of a conditional nature. That is, it was not a simple statement intending harm. Instead, it was “if” A occurs, then he would react with “B”- the harm. The threat made was homophobic and particularly nasty, only read the judicial opinion if you are not bothered by coarse language. Bad facts frequently make bad case law. Neither of the concerns I have expressed were discussed in the First District’s opinion, and I don’t even know if the issues were raised. Such a prosecution would not be a slam dunk, in spite of this case, due to the unaddressed legal concerns. That said, it would not be advisable to make threats on Facebook or in any other written form, from letters to text messages. Mr. O’Leary is currently serving ten years for the charges in this case.

http://www.miamiherald.com/2013/03/18/3293327/court-threats-posted-on-facebook.html

Thought police are on patrol (not here… yet)

Just after my extensive discussion of the language parsing in the amended stalking statute, Josh Zerkle shared this article from Europe on Facebook.  Matthew Woods made some tasteless jokes on Facebook, and got himself 3 months in a youthful offender’s lockup.  I haven’t seen the jokes, but I don’t care how terrible they are, he should not be prosecuted for his statements, particularly when they were meant to be satirical in nature.  I don’t think Gilbert Gottfried should have been fired for his tasteless tsunami joke, but I respect the right of his employer to do so.  However, for the government to try to regulate thought by punishing unsavory comments, we lose the discourse that is essential to a free society.  Restrictions on expression are one of the key ways that governments are able to oppress people around the world.  We should be a long way from this happening in the United States, thanks to our Second Amendment, but there is always a risk.  What if someone were to take a joke as threatening, regardless of the intent or ability to carry out a threat… it could become criminal based solely on how it is received.  That’s a stretch, I realize, but a reminder as why we must be vigilant at protecting our right to express ourselves, by standing up for even those we disagree with.