SHE’S THE LAW: Could Venting Your Negative Feelings On Facebook Land You In Jail?

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facebook-stlOn Monday, June 16, 2014, the United States Supreme Court agreed to hear arguments stemming from, and considering, threatening comments made on social media sites such as Facebook and whether or not they cross the line into criminal activity, or are considered classic forms of free speech. Recently, two lower courts ruled that Anthony Elonis crossed the line into criminal activity when, in 2010, he posted Facebook comments about killing his wife and others, including an FBI agent who was investigating Mr. Elonis at the time.

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In 2010, Elonis’ wife left him and took their two children with her after being married to him for seven years. Mr. Elonis had recently lost his job at an Allentown, Pennsylvania amusement park and started to post dark messages often in the form of rap lyrics. Apparently, he disclaimed any “true threats” on his Facebook profile, but stated that his rants were therapeutic at that time.

According to reports, Mr. Elonis also wrote on his timeline: “Did you know that it’s illegal for me to say I want to kill my wife? It’s illegal. It’s indirect criminal contempt. It’s one of the only sentences that I’m not allowed to say.”

WHAT DOES THIS MEAN?

The Supreme Court’s decision to hear arguments allows Elonis and his attorneys to contend that he never actually intended to use actual violence against his wife. One specific factor that will be taken into consideration is whether or not a “reasonable person” would feel threatened by the posts of Mr. Elonis.

There appears to be court precedent that may affect the ruling on this matter, which includes a 2003 ruling in Virginia v. Black where a state law equating cross-burning with intimidation went too far. The Supreme Court reasoned that not all cross-burning was meant as a threat, with only Justice Clarence Thomas offering a dissent to that ruling. Despite this ruling 11 years ago, many lower state and federal courts have had split decisions regarding what exactly constitutes a threat to someone. The decision must be made based upon either the offending party’s subjective intent to threaten someone, or a reasonable person’s objective interpretation of said “threat.”

HOW DOES THIS AFFECT YOU?

The Supreme Court has, for the most part, been a strong defender of freedom of speech rights. Despite its perceived leniency as it relates to free speech, federal laws are in place to circumvent criminal activity that may overshadow said speech. Particularly, “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.”

As communication via online mediums has increased drastically over the years, the objective “reasonable person” standard may be argued either way. “The issue is growing in importance as communication online by e-mail and social media has become commonplace,” Elonis’ petition for Supreme Court review says. “Modern media allow personal reflections intended for a small audience (or no audience) to be viewed widely by people who are unfamiliar with the context in which the statements were made and thus who may interpret the statements much differently than the speakers intended.”

As we wait for the Supreme Court’s decision and opinions on the matter, here is a nugget of advice for anyone who feels the need the rant and vent your negative feelings on social media…..DON’T.

Though one may, according to law, have freedom of speech rights to do so, common sense should lead you to a more positive oriented means of working through personal issues.

Rashida Maples, Esq. is Founder and Managing Partner of J. Maples & Associates (www.jmaplesandassociates.com). She has practiced Entertainment, Real Estate and Small Business Law for 9 years, handling both transactional and litigation matters. Her clients include R&B Artists Bilal and Olivia, NFL Superstar Ray Lewis, Fashion Powerhouse Harlem’s Fashion Row and Hirschfeld Properties, LLC.

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