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Don’t be guilty of a Facebook felony

Contact Attorney Jason Chan

Attorney Jason Chan

267 North Beacon Street, Suite 3
Boston MA 01235


Phone: 781-343-1DUI (781-343-1384)
Fax: 617-226-7986

Many social media gurus may not consider that a comment on Facebook could earn you time in prison.  However, that is a stark possibility for a teen in Texas whose offensive comments are being viewed as terroristic threats.  Back in February, Justin Carter made the following insensitive and arguably threatening comment on Facebook:  “I’m [expletive] in the head alright. I’ma shoot up a kindergarten/ And watch the blood of the innocent rain down/ And eat the beating heart of one of them.”  As this statement was posted just two months after the Sandy Hook Elementary massacre in December 2012, its impact was that much greater.

The Impact of Social Media

The criminal implications of Carter’s actions demonstrate the inherent pitfalls of social media.  The expansive reach of the statements we make on social media, published far and wide over the World Wide Web, can have an unintended impact. As one article recognizes:

people are stumbling into trouble for behavior that has a wider audience on the Internet but would never get people into trouble back in the day when trash-talking simply took place in the living room as people played a violent video game, or when drunkenness was witnessed only by a few friends at a party.

Social media has expanded our audience in ways we never imagined.

Joke or Genuine Threat?       

Of course, the context of Carter’s statement should be considered when determining his guilt or innocence.  If his statements were made simply as “joke” (however insensitive) in response to another friend’s comments, his actions could not reasonably be considered a threat.  Indeed, there is a fine line between illegal threats and protected free speech.  The First Amendment provides, in relevant part, that “Congress shall make no law . . . abridging the freedom of speech.”  Based on the long history of case law defining the contours of the First Amendment, freedom of speech includes:

  • Freedom not to speak
  • Freedom to wear black armbands to school to protest a war
  • Freedom to use certain offensive words and phrases to convey political messages.
  • Freedom to engage in symbolic speech

These freedoms do not include, however, inciting actions that would harm others.  For example, “shouting fire in a crowded theater” is a popular metaphor for speech or actions which tend to create needless public panic.  It could be said, then, that Carter’s speech in this case has already created unnecessary concern that yet another Sandy Hook tragedy is in the making.

Terroristic Threats or Insane Ramblings?

In another similar instance of Facebook posting, a former Marine posted anti-government statements that resulted in a forced psychiatric evaluation.  His statements, somewhat similar to Carter’s, included “a day of reckoning” was coming, and “sharpen my axe; I’m here to sever heads.” After a hearing, the Virginia judge released him, finding that there was no basis for holding him based on his comments.  This case begs the question, why was the Marine held for psych testing instead of being charged, as Carter was, with terroristic threats?

Consider The Consequences Of Your Social Media Rantings.

The lesson to be learned here is that “free speech isn’t free of consequences.” This year’s First Amendment survey also shows students’ use of digital media for news and information is growing. Since 2006, it has doubled, with three quarters of the students getting news from social media several times a week.    As Ken Paulson, President of the First Amendment Center, has said on this issue:

[y]oung people who tweet in offensive or controversial ways could find themselves called to account in forums far away from the classroom. The very nature of tweets — spontaneous and unfiltered and distributed well beyond a core group of friends — makes them potent and sometimes problematic.

It would serve us well to always consider the possible consequences of the statements we make on social media outlets, and instruct our youth to do the same.


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