WOSML Chapter 25.A: Criminal Law – True Threats

Chapter 25: Criminal Law

Contributors to This Page: Joseph R. Morrison, Jr.
Suggested Citation Form for This Page: Brian D. Wassom et al., Wassom on Social Media Law Chp. 25.A, available at <wassom.com/wosml-25a.html> (last edited March 5, 2013)

A.  True Threats

Social media, by definition, facilitates a person reaching out and communicating more easily with a larger number of people.  This is beneficial in that it allows groups to be more interconnected.  However, it also affords criminals with a way to harass, threaten, and stalk past or future victims.

     1. Overview

Social media has been used by adults who are in jail or on probation as a means to harass past victims.  In Tommy Barber v. Gina Keas, 2011 Tex. App. LEXIS 8408 (Ct. App. TX, 2nd Dist., Fort Worth 2011), the impact social media has on a strained domestic relationship is evidenced by an ex-boyfriend’s continued contact, which caused his ex-girlfriend to fear for her safety.

Barber’s conduct and the conduct of many other people who reach out using a virtual medium is problematic in that it can sometimes constitute a true threat.  A true threat is not protected by the First Amendment and can result in federal charges if it is communicated using a means of interstate commerce.  United States v. Anthony Douglas Elonis, 2011 US Dist. LEXIS 121401 (E.D.PA 2011), United States v. Musgrove, 2011 US Dist LEXIS 108932 (E.D.WI 2011) (where the defendants use of a Craigslist post to threaten someone provided the federal government with a means to charge the defendant).  While a true threat will still require intent, something as small as a wall post on Facebook or MySpace can bring criminal charges if the circumstances, specificity, and the targets reasonable belief that harm was imminent.  The People v. Juan N., 2012 Cal. App. Unpub. LEXIS 3042 (Ct. App. CA, 2nd App Dist. Division 8 2012), I.P. v. State of Arkansas, 2012 Ark. App. 273 (Ct. App. AR, Division 3 2012)(where a boy’s Facebook post threatening to bring weapons to school resulted in charges of disorderly conduct and harassing communications).

A threat does have to be somewhat probable to be the basis for a charge but the probability, or “likelihood of receipt,” requirement can be found as the circumstances require.  In United States v. Jeffries, 2010 US Dist. LEXIS 125446 (E.D.TN, Knoxville 2010), a man posted a video on YouTube in which he made threats against a trial judge.  He did not mention the judge by name so he said there was no way the judge would have known of this threat.  However, he did send a link to someone on Facebook so the probability of dissemination and receipt increased enough to warrant charges.  Beyond Jefferies, the Fifth Circuit has noted that the context and character of the threat will color the nature of the communication as a true threat so the analysis will be highly circumstantial.

While the analysis of what constitutes impermissible communication is fact-specific, it is clear that there are limits on what can constitute a threat or harassment using social media.  The First Amendment will protect a person’s right to post offensive material in a social media forum; even outside of First Amendment protection certain communications are just not disturbing enough to constitute harassment.  Olson v. LaBrie, File No. 13-CV-10-1237 (Ct. App. MN, Chicago Co. Dist. Ct.) (where the plaintiff attempted to say that the defendant’s posting of Facebook pictures of her accompanied by mean comments constituted harassment.  The court disagreed, noting that disrespectful behavior in conjunction with innocuous family photos could not be the basis of harassment.)

However, the types of borderline speech that the courts will recognize as acceptable, like someone venting about the trials and tribulations of life, will not stand if the communication results in someone reasonably feeling threatened.  Holcomb v. Virginia, 2011 Va. App. LEXIS 190 (Ct. App. VA 2011).

     2.  Case Summaries

The following summaries describe the holdings of several court decisions involving alleged criminal harassment or true threats in social media.

  • People v. Juan N. (Ct. App. CA, 2nd App Dist. Division 8 2012) 2012 Cal. App. Unpub. LEXIS 3042
    • Defendant posted on a boy’s wall on MySpace threatening his brothers/mother. The post constituted a criminal threat since the reasonable belief of a fear for safety means the perpetrator did not need to have intent. The circumstances are important to threat since it was sufficiently specific and reflected immediate threat.
    • KEY POINTS: circumstances are relevant to the true threat doctrine and the reasonable belief standard is discussed.
  • Holcomb v. Virginia (Ct. App. VA 2011) 2011 Va. App. LEXIS 190
    • A man was arrested for making a true threat towards the mother of his child.  He used her maiden name and though it was not directly communicated to the victim, “communication” in the statute did not so require since the victim reasonably felt threatened and there was a nexus of the communication to feeling threatened.  This was not just venting about trials and tribulations of life, which is not be something a person can be protected for.
    • KEY POINTS: the true threat does not need to be directly communicated in order to be a violation.  The case also discusses the borderline between a true threat and First Amendment protected speech.
  • Tommy Barber v. Gina Keas (Ct. App. TX, 2nd Dist., Fort Worth 2011) 2011 Tex. App. LEXIS 8408
    • A post-assaultive comment on Facebook that referenced his relationship with his ex-girlfriend caused her to fear for her safety.
    • KEY POINTS: a true threat in the context of a strained relationship.
  • United States v. Anthony Douglas Elonis (E.D.PA 2011) 2011 US Dist. LEXIS 121401
    • A man was charged with the federal crime of transmitting a threat via interstate commerce.  An expression cannot be barred if it is merely objectionable or offensive, but this fell into the true threat exception to First Amendment protection. He intended to make the comment and whether something is a true threat is a question for the jury. A reasonable person must view the statement as a serious expression of intent to inflict bodily harm. All but the 9th circuit uses an objective test. The 8th Circuit has a reasonable listener test and the others use a reasonable speaker test.
    • KEY POINTS: a true threat communicated using interstate commerce can be regulated by the federal government.  The case discusses the difference between the objective and subjective tests.
  • Olson v. LaBrie (Ct. App. MN, Chicago Co. Dist. Ct.) File No. 13-CV-10-1237
    • The plaintiff asserts that the defendant violated her privacy and harassed by posting Facebook pictures of them from decades ago and comments on his private Facebook, though the page was accessible to anyone who searched for it.  Were the comments veiled threats? No, they were just mean, disrespectful comments and innocuous family photos could not be the basis of harassment.  The MN Supreme Court has not recognized the tort of false light publicity.
    • KEY POINTS: harassment requires more than simply interacting on Facebook.
  • I.P. v. State of Arkansas (Ct. App. AR, Division 3 2012) 2012 Ark. App. 273
    • A Facebook post threatening to bring weapons to school was sufficient to convict defendant on charges of harassing communication, disorderly conduct.
    • KEY POINTS: disorderly conduct and harassment charges can be levied based on a simple Facebook post.
  • US v. Musgrove (E.D.WI 2011) 2011 US Dist LEXIS 108932
    • A craigslist posting was a true threat communicated using interstate means/in interstate commerce.
    • KEY POINTS: the true threat doctrine can be regulated by the federal government if it uses an interstate medium.  Almost all major internet sites will fall into that category.
  • USA v. Jeffries (E.D.TN, Knoxville 2010) 2010 US Dist. LEXIS 125446-
    • A man posted a video indirectly threatening a judge. The court said the video was not political speech or artistic expression and though the judges name is never mentioned in the video, it is still a true threat. It could also be a true threat though it was in a sea of videos on YouTube so there is no likelihood the judge would ever see it.  However, the video was linked to a person (his sister) with knowledge of the circumstances which undercuts the defendant’s defense that the “likelihood of receipt” prong of the true threat cause of action was not met. The 6th Circuit test is that a reasonable person would perceive the expression as intimidation (actus reus) and there was intent to inflict bodily harm (mens rea), 5th Circuit notes that character and context colors when there is a true threat.
    • KEY POINTS: the fact that a threat is not received does not mean it isn’t a viable, criminal threat.  The First Amendment-true threat borderline is also at issue here.