The First Amendment Right to Free Speech and Social Media


Do we have a First Amendment Right to say anything we want to on social media; to make threats of violence against others, without fear of retribution? Social Media brawls, squabbles, and feuds on Facebook and Twitter, to name a few, are no joke. What often starts out as an innocent “back and forth” between sparring parties can grow ugly when there is a spillover from Facebook to reality; and sometimes that spillover can become deadly.

Facebook and Twitter accounts are now being monitored for possible criminal activities. Both federal, as well as state and local law enforcements have begun to use social media as one of their vehicles in the prevention and the solving of crimes. There have been court rulings that postings on social media sites have no expectation of privacy or confidentiality, therefore, anything you post in social media is accessible without the need for a warrant.

Even so, it has not been settled whether the First Amendment Right applies to threats of crimes of violence or murder on social media. Many social media users hide behind the anonymity of the profiles they create to behave in ways that would be totally unacceptable in the real world.

Posting Threats Against Political Figures is no Joke

In today’s heated political climate, threats, violence and threats of violence, or posting anything on the internet that can be construed as a possible threat against a political personality, is not a good thing. For the same reason you cannot yell “fire” in a crowded theater, neither can you post a threat that you intend to send a bomb to a political figure.

Recently, an Ohio man, Gary Barry, posted what he thought was a joke on his Facebook account. He was involved in a Facebook discussion during one of the recent political debates. Barry asked during the discussion “where do I send the bomb,” in a response to a political posting.  As it goes with most political postings during an election cycle, the back and forth conversation got heated.

Shortly thereafter, Barry was visited by two armed Secret Service officials who interrogated both he and his wife, extensively, before giving him a warning to watch what he posts on social media. The local Secret Service confirmed that such interrogations after a post such as Barry’s, was standard procedure. See 5NBC Chicago.

When Social Media Threats Become Deadly

In 2015, a Facebook feud between a group of girls ending in one of the girls being shot to death in the park. In another incident, a Facebook feud ended in a shootout, endangering the lives of six people, including a 10-month-old baby. See CNN and 7KLTV.

Supreme Court Ruling on Social Media Threats and Acts of Violence

In 2015, the Supreme Court weighed in on the issue of social media threats and acts of violence in the case of “Elonis v. United States.” Elonis was a former Pennsylvania amusement park worker who was convicted of threatening to kill his wife and children and an FBI agent. He made these threats on Facebook. The issue became a question of when does online threats become criminal activity.

Victim support groups such as the National Network to End Domestic Violence are warning the courts that there is an epidemic of online abuse and bullying that must be addressed. They argued that the psychological and sometimes economical effects of social media threats of violence give the abusers a longer reach within which to attack their victims, who have no recourse.

The question before the Supreme Court turned on the issue of intent. Did the person making the threat intend to place his victim in fear for his life or of severe bodily harm; or was he merely negligent in creating that fear without any intent to follow through on the threat?

The Supreme Court reversed the Elonis’ conviction, ruling that “requiring negligence with respect to the communication of a threat is not enough to support a conviction.”

Criminal Defense Attorney David Freidberg

If accused of a crime, it is important that you know what your rights are, and how to protect them. The need for an experienced criminal defense attorney begins with the charge and arrest. Knowing your rights is the first step in the process, and continues thereafter through a possible trial to acquittal or sentencing. So if you are being charged with any crime, including murder, sexual assault or battery, and would like to discuss all of the potential defenses available to you, call the Law Offices of David Freidberg today, at (312) 560-7100, or send an email, for a no-obligation consultation.

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