Freedom of Speech and Social Media
by Sue Basko
Contrary to popular opinion, Freedom of Speech does not mean you get to say whatever you want.
Over the past year, many people nationwide have been arrested for what they wrote on Facebook or Twitter. Most of these postings have been written in reaction to violent incidents, such as the Sandy Hook school shootings or the death of Trayvon Martin. Most of the postings promised or advocated further violence. Most of the people arrested, that I know about, have been mentally ill or had a history of violence or erratic behavior. Others wrote such explicitly violent things that it would be a mistake for officials not to take it seriously. Better to be safe than sorry, seems to be the rule. In the aftermath of numerous incidents where young people committed shocking violence, such as the Aurora, Colorado movie theater shootings, the Sandy Hook school shootings of little children, and the Boston Marathon Bombings, if you threaten violence, you are likely to be taken seriously.
In most instances of arrests of Social Media posters, police were alerted by someone who read the post and was alarmed by it. That means, in most instances, the police are alerted by Facebook friends (or friends of friends) or Twitter followers. So, it is not the NSA or the FBI or local police watching your every word and turning you over to authorities, it is your Facebook friends. In most instances that I know of, the charges have been state charges, in whatever state the errant poster resides. In some of the instances, the poster is given very high bond and is therefore kept in jail for quite some time awaiting trial. I assume the bonds are set high to protect the public, or the proposed victims, from potential violence. A good rule is to assume that if you post violent things, your post will be taken at face value and will be taken seriously.
Laws are different in every state. One charge that might be lodged against a Social Media poster is “terroristic threatening.” “Terroristic threatening” is defined differently state to state, just as other offenses, such as “rape,” are defined differently state to state. In some terroristic threatening laws, it is the effect the words have that makes them qualify as terroristic threats. A typical example of a terroristic threat law is if the words cause a building to be evacuated, or cause safety precautions to be taken, or frighten 10 or more people, then they may be considered terroristic threats. Sometimes the law will have an intent requirement. The person whose words frighten a group of people will often argue that the words were a joke, that they were “just kidding.” That is a defense that might be used at trial, but it won’t usually keep a person from being arrested and charged in the first place, if the words seem serious and have led to trouble.
Every time one of these Social Media threat posters is arrested, there comes a flurry of other people posting or complaining that this is a violation of Free Speech. It is a common misunderstanding that free speech means you can say or write whatever you feel like. People sometimes get into a pedantic scholarly First Amendment law professor type of argument about such terms as “incitement,” “fighting words,” and “protected speech.” That’s all cool to argue in an amicus brief, but the bottom line is it does not do you much good if you are sitting in jail with $100,000 bond for posting what to most people sound like death threats. This blog post is not about arguing theory, it is about keeping my readers out of jail.
Here are some basics about FREEDOM OF SPEECH and SOCIAL MEDIA:
1. Freedom of speech is between the people and the government. A Social media company is not the government. A Social Media company can set any rules it wants. A Social Media site can force its users to be polite and considerate. That does not in any way violate Free Speech, because the Social Media company is not the government.
2. Speech might not violate the rules of the Social Media company, but might still be illegal. This is especially so on Twitter and Facebook, which have refused to formulate reasonable rules for its users and utterly fail at stopping abusive and illegal postings. That’s why there have been many arrests of people for things they posted on Facebook and Twitter. The common sense rule is that it is up to the Social Media user to know the law and not to depend on the site rules as a guide to what is legal or not.
3. If you post on a national Social Media such as Facebook or Twitter, you can be held criminally responsible for violating the laws of any State. True, most Social Media criminal charges are made in the State where the poster resides, but this does not have to be the case. A prosecutor in the state of the victim could bring charges, and so could a federal prosecutor. Jurisdiction will depend on the exact wording and intent of the law and on which prosecutor is interested in the situation.
4. Social Media is international. If the victims are in a different nation, you can still be held responsible. The recent French case involving Twitter users posting anti-Semitic tweets, where Twitter tried to shield the racist harassers, ended out finally with Twitter turning their information over to the French authorities. Will it turn out that the abusive tweeters are French, or will they be Americans or from which nation? This will be interesting to watch. Yes, there are issues of jurisdiction and these are often complex.
5. Protected Political Speech does not include threats to kill. In the U.S., we are allowed to write things that criticize government and elected officials. That does not include threats to kill or harm the officials or their families. You can post saying you don’t like the work of President Obama, but you don’t get to post a threat to harm or kill him or his family.
6. Your post might remain on Social Media and you might still be arrested. If you are posting your death threats on Twitter, be aware that Twitter is not likely to remove your threats or keep you from posting more threats. Such a situation happened with Jarvis Britton, who was sentenced to a year in prison for tweeting death threats at President Obama. Britton posted a death threat once, the Secret Service told him to knock it off, and he persisted and posted a new death threat. Twitter does not have sensible rules that form guidelines for users. Twitter does not remove death threats. Twitter does not keep abusive users from posting more abuse. Just because your account has not been suspended by Twitter, does not mean the U.S. Marshals won’t be knocking down your door.
7. Being a U.S. citizen does not immunize you if you are in a different nation. Some other nations have laws that make it illegal to defame a king or public official or to disrespect a religion. If you are sitting in a hotel room in Riyadh posting hateful stuff about the Saudi royalty, the U.S. has no jurisdiction to override the local laws.
8. Arrest and Prosecution are Absolutely Different from Place to Place in the U.S.. Many police departments, even in large cities, don’t have anyone that knows anything about computers. Many FBI offices have the same situation. They are not likely to pursue a Social Media poster. Other police forces or FBI offices have people knowledgeable about cybercrime, and they may be eager to try out their skills.
9. How Hard is it to Get Caught? All in all, an abusive poster is most likely to be arrested if they post in their own name on their own Facebook page, or in their own name on a Twitter or Youtube account. If a subpoena is required to discover the true identity of the user, in most instances, police or FBI won’t do that, unless they are politically motivated to go after someone. But that does not mean they cannot or won't pursue you, so don't count on it. Federal law also makes it a crime to post threats without revealing your name, so hiding behind a pseudonym may actually make your threats a more serious crime.
10. If I removed a post off Social Media, can I still be charged with a crime? Theoretically yes, but I do not know of any situation where a person removed an offensive posting and was later charged with a crime about it. Usually, removing it is an indication that you knew it was wrong or that you did not really mean it and are trying to make amends. Most people who are actually dangerous think they are right, and keep on posting more things.
WHAT IS ILLEGAL TO POST ON SOCIAL MEDIA IN THE U.S.? This list is based on federal law and on generalized version of state laws, which differ state to state, but have many similarities. This list is certainly not a complete listing, but is simply a list of the most common types of Social Media posts that get people charged with crimes. *See Note at bottom of page.
What's Illegal on Social Media?
1. Death threats or threats of any harm to any person. This includes: threats against any person or their family, against their car or home, rape threats, arson threats, etc. It is illegal to post a death threat against someone you know, someone you don’t know, a public official, someone famous, someone unknown – anyone. You can usually be arrested if you post such threats “as a joke,” even if you “aren’t serious,” etc. Whether you are arrested depends on if the victim reports it and how interested the local police are in arresting you. If you are easy to identify and locate and you sound dangerous, you are more likely to be arrested.
2. Generalized threats of death or harm, such as posts telling others to kill people of a certain group or race, or statements saying you are going to kill or harm children or adults at a certain place. You statement might be considered a threat, an incitement, an urging, an exhortation, a plan, a terroristic threat. You may say your post was not a threat, but a joke. The bottom line is that normal, healthy, responsible people do not post such things, and if you do post such things, the police may be required to at least check you out.
One such story is of Justin Carter, a 19 year old in Texas, was held for months on $500,000 bond for violent threats he posted on Facebook. Although he said he would kill little children, after he was arrested, he claimed it was a "joke." He was finally released after many months, when an anonymous person posted $100,000 to free him, pending trial. There have been at least a hundred similar cases nationwide since the Sandy Hook school shootings.
3. Posting any sort of nude, partly nude, indecent, sexual, or obscene photo of anyone. Social Media is a public space, and it may be viewed by all ages. If you post such a photo of a person without his or her permission, this may be extortion, or stalking, or harassment -- or revenge porn. If you post such a photo of anyone who was under age 18 at the time of the photo, that is distribution of child pornography. If you post any such photo, you may be engaging in crimes related to making pornographic or indecent materials available to children. Some states specifically have laws that make it illegal to post such a photo of any person without their specific written permission. And on and on.
4. Posting a link that tricks other people to clicking on it and seeing an obscene or indecent image. This is a federal crime. I cannot tell you how many times I have seen idiots on Twitter posting such links to the Goatse picture. If you don't know what the Goatse picture is, do not google it.
5. Posting the home address, phone number, social security number, or personal email of any person to harm them. If you post such info of most people, it is stalking or harassment, a state offense. If you post such info of a federal employee or official, it is a serious federal crime. If you post such info about a law enforcement officer, it is a state offense in many states. If your purpose is to harass, stalk, intimidate, "expose," shame, humiliate, or endanger someone or open someone up to being attacked financially or physically, then what you are doing is illegal under some law.
6. Posting personal information about a person, such as medical records, financial information, passwords to emails or other accounts, social security numbers, etc. Revealing such personal information can violate any of various state or federal laws.
7. Sending messages to other users, adults or children, telling them you are a talent agent, (unless you are an actual licensed talent agent), and trying to lure them into contact with you either for illegal social or sexual purposes, or as part of a financial scam. This happens most often on Youtube, where any private message from a “talent agent” or manager or talent company or casting agent or model agent should be viewed with great skepticism.
8. Sending indecent photos, even privately, to anyone under age 18, or asking them to send such a photo to you. This applies even if you yourself are under age 18.
9. Trying to lure or entice anyone under age 18 to meet up with you or travel to meet you or to go someplace with you. This is often treated as a very serious crime, especially if there is any age difference.
10. Repeatedly posting things at or about a person, if they have asked you to stop or if they are not responding, or if they have you blocked or locked out or if they have complained about you to the Social Media company. This is harassment or stalking, and it is illegal under many different state laws and under federal law. Which law it falls under depends on the facts. In some places, the victim may be able to get a restraining order to keep you from doing this. In other places, the victim will be able to sign a complaint for your arrest.
11. Repeatedly posting negative, derisive, racist, sexist, demeaning, belittling, mocking, posting misinformation about, or any other sort of mean or disturbing post at or about a person. This can be illegal under many different state or federal laws, including stalking, cyberstalking, harassment, cyberbullying, as well as under civil laws such as defamation or intentional infliction of emotional distress. You do not have a right to pester or stalk anyone else on the internet, just as you have no such rights IRL.
12. Gathering a group to harass a person or commit a crime online or off line. It can be illegal to gather a group to do something illegal online or offline. Using social media to incite mob action may be specifically illegal. "Mob action" is where two or more people gather for the purpose of doing something violent, harassing, or illegal to the same victim or in the same place.
13. Extortion: Threatening to do something bad to someone if they do not do something you want. Such online extortion may include threats to post nude or embarrassing photos, threats to post personal information about the person, threats to steal from the person, threats to hack a person's accounts, and other such threats. If you are the victim of extortion, never give in to the threats. Contact police. Even if you have given in to the threats, contact police.
14. Threatening to hack a person’s site or account, or to DOS their site, or threatening any other type of illegal cybercrime against a person. Threatening to commit specific crimes against people is illegal as intimidation, harassment, stalking, extortion, etc., depending on the exact situation.
15. Posting links to other things that are illegal, such as obscenity, child porn, passwords, personal information of another person, etc.
16. Impersonating someone else. This is illegal under various state laws.
*Note: Every time I post such a list, there are some who mock it, mock me, say it is not true, etc. I am a lawyer who has specifically and extensively studied Social Media law. I also pay a lot of attention to news of arrests for behavior on Social Media. I write about the law for everyday people, to help you make informed decisions. Anyone who has been arrested for a posting on Social Media is certainly expected to have lawyers make First Amendment arguments, but this blog is not about what arguments might be made in court. This blog is to help people avoid getting in trouble in the first place.