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Don’t be guilty of a Facebook felony

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.

Social Media in the Courtroom

Add social media savvy to the list of qualifications for perspective attorneys. The use of blogs, social media, and related technology is on the rise. A survey conducted by GreenTarget along with InsideCounsel Magazine and the Zeughauser Consulting Firm shows in-house attorneys using social media tools to connect with professionals and everyday people like you and me.

The survey was initially conducted in 2010. However, much has changed over the course of three years according to John Corey, GreenTarget President.

“Our 2013 survey makes it crystal clear — as evidenced by the sustained prominence of LinkedIn and attorney-authored blogs, the growth in mobile consumption of news and a continuation of the ‘invisible user’ trend — that in-house lawyers are using social media as part of their daily routines.”

Other highlights of the study show dependence on mobile devices is skyrocketing. In fact, the survey showed nearly 40 percent of its respondents using tablets and another 23-percent using apps for their daily news.

Other Highlights include:

•Respondents of the survey also reported more confidence in blogs and articles that are written by attorneys themselves. Just over 50 percent of the respondents say reading such blogs can also affect hiring choices.

•LinkedIn remains the primary social network for professionals.

•Respondents rely on smartphones or tablets for industry and business news

•Infrequent consumption of videos from attorney websites

The study also shows that more professionals are depending on websites such as Wikipedia to help conduct legal industry research. This displays the shift in which information is retained and distributed. Furthermore, legal experts are using such information to communicate with clients, consumers, and other industry leaders. This is why it’s so important for attorneys to make the most out of their social media tools. One way to start is by establishing more credibility with a blog. However, legal professionals are also eyeing other social media accounts to help support evidence in the courtroom. This type of information is not displayed on their blog or website.

Social Media as Evidence

Blogging has become a popular tool for legal professionals. However, lawyers are not only using social media to distribute information about their cases. Some are also using popular sites like Facebook and Twitter to help build up evidence about such cases.

Hurting Criminals & Helping Justice

The Steubenville rape case is a prime example of how social media is impacting the justice system. The sexual assault case involved two high school football players and a 16-year-old girl from Steubenville, Ohio. After looking at overwhelming evidence, from everything to videos, tweets, and pictures that the boys placed on social media accounts, it was a no-brainer for the judge, Thomas Lipps, to hand down a guilty verdict.

Social Media as Evidence

But it wasn’t a no-brainer; in fact it was just the opposite. The case is forcing law officials to take a second look at how they are utilizing social media and technology in their own cases. The defense attorneys had a field day tracking down messages, videos, and pictures of the boys performing sexual acts on the victim. But they also had some support from fellow party-attendees, as other teens were not shy about sharing their own videos and comments about the incident on social media sites like Facebook and Twitter. But let’s not forget about the ability for media to go viral. What really hit the bank in this case on behalf of the defense, was the hacker group coined “Anonymous”. The group of hackers was able to trace down and publish the events of the night the alleged sexual assault took place.

Adding the cherry to the cake, two girls were charged with a third degree felony for intimidating the witness.  The girls, ages 15 and 16, were also charged with aggravated menacing and telecommunication harassment, both misdemeanors.

Ohio General Attorney Mike DeWine said on CNN that, “People … are allowed to say crazy things, and that’s fine, but they can’t under Ohio law threaten to kill someone, and we had to take action.”

Legal Implications of the Case and Social Media

The Steubenville case just goes to show how close everyone, including law enforcement, is paying attention to social media. So what can fellow attorneys and legal practitioners take away from this?  One thing’s for sure. They can tell their clients to be careful what they’re sharing, because it can later come back to bite them.

As for the way courts are handling social media, Harvard Professor of Law Alan Dershowitz told USA Today, “It’s the wave of the future…It’s going to change the way evidence is gathered in cases. It’s already happening.”

The two boys convicted of the sexual assault must register as sex offenders. One of the convicted teens will have to register as an offender every six month for the next 20 years.  This just goes to show how sharing information through social and digital media has shifted the way cases are handled in the courtroom.

References

  1. “In-house counsel’s growing social media conscience ” Inside Counsel, accessed  June 11, 2013, http://www.insidecounsel.com/2013/05/01/in-house-counsels-growing-social-media-conscience
  2. “Social Media Networking For lawyers: A Practical Guide to Facebook, LinkedIn, Twitter and Blogging” American Bar Website, accessed June 13, 2013, http://www.americanbar.org/publications/law_practice_magazine/2012/january_february/social-media-networking-for-lawyers.html
  3. “Steubenville rape case driven by social media”, USA Today, accessed June 15, 2013, http://www.usatoday.com/story/news/2013/03/18/steubenville-rape-social-media-football/1997687/