Can Your Facebook Post Land You in Jail?

Can Your Facebook Post Land You in Jail?

Chloe Seaman
October 28, 2016

We’ve been hearing all kinds of opinions lately during this election season. Both on and off social media. You may have even found yourself battling your own debates about it with friends, relatives and coworkers.

Free speech is one of the best things about America and the right is certainly exercised strongly around Presidential elections. But every once in awhile a question arises over what is considered free speech that can make us pause. The rise of social media networks like Facebook and Twitter have complicated things even more. We take a look at the sometimes blurred lines of this essential part of being an American below.

First Amendment rights

In essence, it was the protection of liberty that inspired our Founding Fathers to establish the freedom of speech – giving American citizens our First Amendment rights. As Benjamin Franklin declared, “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”

Freedom of speech is indeed one of our fundamental American rights. However, what you think might be freedom of speech could actually be unlawful and come with serious legal implications, depending on the context.

The Anthony Elonis case

What defines freedom of speech in the context of making remarks on social media?

Perhaps the most intriguing example is the case of Elonis v. United States. This was a case in which the lines between freedom of speech and making threats were so blurred, it took the Supreme Court to determine the outcome.

The case concerned Anthony Elonis – a Pennsylvania man who posted on Facebook “long tirades in the form of rap lyrics” which contained remarks that “a reasonable person” could judge as threats made toward his estranged wife. Other remarks he made in the post claim the tirade “aspired to be art or therapy.”

Elonis’ estranged wife felt threatened, so under a federal law “that makes it a crime to communicate ‘any threat to injure the person of another,’” he was convicted and sentenced to 44 months. That’s right, nearly four years in prison for something he posted on Facebook.

However, he appealed his case all the way to the Supreme Court and his conviction was reversed in the end.

Questions regarding one’s state of mind, recklessness, intent and references to The Beatles and rapper Eminem’s lyrics were raised and made in the case.

Although Elonis’ conviction was reversed, questions were still unanswered and “This failure to decide,” wrote Justice Thomas “throws everyone from appellate judges to everyday Facebook users into a state of uncertainty.”

Another case in which the lines were blurred between “criminal threats and protected speech” involved a California man leaving “vicious” messages about Barack Obama on an online message board. He was convicted of violating “a federal law that makes it a felony to threaten a major presidential candidate with death or bodily harm.” His conviction too was reserved, concluding that his speech was protected by the first amendment as his comments were not determined to be “true threats.”

There are limitations within the First Amendment

Even though the U.S. Constitution guarantees the freedom of speech, “the law has long recognized specific limitations,” including “prohibitions against slander and libel.” As the Elonis case initially showed, “speech can even constitute a crime, such as in the case of criminal threats.”

Though felony offenses are more serious than misdemeanors, both may “result in incarceration, fines, and other penalties”.

Varying by state, “a criminal threat can be charged as either a misdemeanor or felony offense.”

The lines between what is considered an opinion, or “therapy,” and what is considered a true threat or slander are ever more blurred with the rise of social media. To express oneself online is essentially common ground these days. But that doesn’t mean you shouldn’t put more thought into what it is you want to say.

Disclaimer: The above is solely intended for informational purposes and in no way constitutes legal advice or specific recommendations.