The Supreme Court is going to hear a case next week that will determine when threats posted on social media, in this case Facebook, rise to the level of a true threat. The case in question dealt with comments Anthony Elonis made toward his estranged wife (and others). He was convicted, sentenced to prison, and the case already upheld by the 3rd Circuit.
While the 1st Amendment gives protection to speech, that protection does not extend to ‘true threats’. This case will examine when musings posted on a Facebook wall are protected, and when they go to far. It will have ramifications in Florida, which has harsh punishments for Written Threats, which include social media posts under Florida law.
See Also: Felonies for Facebook posts
*UPDATE: The conviction was overturned, as the jury must also determine whether the Defendant intended for his words to constitute a threat.
- Things Not To Do: Don’t Joke about Airline Threats
A Dutch teen published a tweet to American Airlines that seemed to imply she was threatening to do something. AA quickly responded that authorities were being notified. The girl quickly responded that it was a joke, and then blamed her friend. Authorities responded quickly, and placed her under arrest.
First, there is a proof issue of who sent the tweet. The fact that it came from her account, or even her IP address, is not proof that she sent it. However, her first response was not to blame someone else, it was to say it was a joke, and only after she was “scared”. Oops.
Does this case have a First Amendment defense? The short answer is no, she is not in the United States, and therefore doesn’t have 1st Amendment protection. I have no idea what kind of speech protections the Netherlands may have. She probably would not be protected here, as courts generally do not extend 1st Amendment protection to true threats. That’s why Florida can charge a felony for threats posted to social media. The question is whether the initial tweet is a really a threat. It’s pretty vague, so she might be able to avoid conviction, depending on how the Dutch handle such cases.
Don’t joke about threats or terrorism. That kind of action with consideration of consequences is why we treat juveniles differently than adults, but it’s bad news. #thingsnottodo
Anya Bargh mug shot
Connecticut Law Student Anya Bargh was arrested and charged with Harassment and breach of the peace for a series of online statements she has made. They were definitely in poor taste, some offensive, but there was not a pattern of conduct over time that would usually warrant a harassment charge. I won’t repeat them, but you can see what she said in the ATL story. We recently covered an injunction case in Lee County that was based on the new stalking law in Florida, and that speech was not found to constitute stalking by harassment. Speech, even offensive or critical speech, cannot be the basis for a crime: it is protected by the First Amendment. That speech won’t be protected if it is perceived as a threat.
Blogger Eugene Volokh does a good breakdown of the applicable statutes and Constitutional issues in this case. His conclusion, and one that is hard to legally disagree with, is that these words are protected speech, and cannot be criminalized under the Constitution. The analysis would be different in other countries. We may disagree with the statements of others, but unless they are making true threats, they have a right to share the offensive thoughts they might have. We, in turn, are permitted to vocalize our disagreement. That’s the way the founders set it up.
I discussed Florida’s Written Threats law, which was recently amended to include electronic communication, on this blog yesterday. I’ve considered it further, and write to express my concern that the law could be applied in greatly disproportionate circumstances. The law proscribes not only threats of death, but also threats of bodily harm. Facially, that sounds appropriate until you consider the broad circumstances that the law could be used to punish people, and the harsh sanction that could result from relatively innocuous behavior.
The statute includes any threat of bodily harm. In Florida, that would likely include misdemeanor-level offenses. The definition of Battery is to intentionally strike or do bodily harm. That’s a misdemeanor. So, if you punch someone in the face, you get a misdemeanor. If you say on Facebook that you’re going to punch someone in the face, you get a second degree felony. That’s a difference of 15 years in prison for the felony, to a maximum 1 year in county jail for actually doing something.
Many people may not be sympathetic toward those who make threats, even minor ones, in any form. But how would you feel if your kid got in an argument and sent some texts while angry? The kid may not even intend to do anything, but he could be facing 15 years in prison. Where prosecutions under this statute could really produce some unfortunate results are for kids who are being bullied, and react harshly with a Facebook status and the victim ends up being charged with reacting to his or her bully.
The facts and threats made by Mr. O’Leary in the underlying case are extreme, and I absolutely do not condone them. While the 10 year prison sentence he received seems awfully harsh for a Facebook post, regardless of how hateful and scary it may be, I’m more concerned about the statute being applied in far less extreme circumstances. Something smells off when a law for making a threat is several degrees more serious than actually carrying through with the threat. I still have serious First Amendment concerns about this law as well. While it may be well-intentioned, some legislative tweaking could better tailor it to reflect the correct degree of potential harm.
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.