LEGALESE — Felonious Facebook Posts

I spend a lot of time warning my children about the dangers of posting things that can be misunderstood on social media.  Every time I hear of someone getting arrested or otherwise in trouble for a badly thought out Tweet or Instagram post, I make sure to let them know.  Just a few weeks ago, the Georgia Supreme Court ruled on a terroristic threats case involving a Facebook post.  That’s right, a young man named Devon Major was charged with – and convicted of a felony for a Facebook post.

The offending post read said this, “Bruh, LCA ain’t a school.  Stop coming here.  All y’all ain’t going to graduate early.  Why?  Because there are too many of y’all f***ers to even get on a computer.  I swear, and there’s so much drama here now, Lord, please save me before, o [sic] get the chopper out and make Columbine look childish.” (This was not Loganville Christian Academy in Loganville)

Mr. Major challenged the underlying law, saying that it was too vague to tell him what conduct was prohibited, and in any event it interfered with his right to free speech.  He had a right to vent his spleen in whatever forum he wanted, so the argument went.

Free speech is, of course, not without its limits.  The United States and Georgia Supreme Courts have consistently ruled that certain types of speech do not enjoy constitutional protection.  Historically, speech is not protected if it is defamation, obscenity, or fraudulent, or if it is a ‘true threat.’

When laws are enacted to prohibit those kinds of speech, they must be ‘narrowly drawn.’  This means that the language in the statute needs to be as specific as possible so that it doesn’t include any speech that would normally be protected.  It also can only be limited if the ‘compelling needs of society’ require the limitation.

In Mr. Major’s case, the Court ruled that what he said on Facebook was not protected speech.  In fact, the Court didn’t much care whether Mr. Major actually had an intent to shoot up his school or whether he was just blowing off steam.  They decided that his statement was reckless, meaning that he was someone who was acting “recklessly with respect to conveying a threat [and] necessarily grasps that he is not engaged in innocent conduct.  He is aware that others could regard his statements as a threat, but he delivers them anyway.”  Elonis v. United States, 135 SCt at 2015 (2015).

The take-home message is clear, even if Mr. Major’s intent was not – be careful what you post in a public post.  You may think that you are just spouting off to relieve stress, or even making a joke to your friends.  But it is not what you meant that counts – it’s how what you said would naturally be perceived.  A threat on paper is difficult to interpret – there is no body language, no inflection, nothing but the plain meaning of the words.  If it looks like a threat it is a threat.  And, in Georgia, that’s a felony.

Nothing in this article should be construed as legal advice.  It is being offered for informational purposes only.  Please seek the advice of an attorney if you have questions about your particular situation.