Why you shouldn’t post threats on Facebook.
You really shouldn’t post threats on Facebook for several reasons. The act of threatening people is not very nice. Your Facebook friends probably won’t find it funny or amusing. And according to Florida’s 1st District Court of Appeal, it may be punishable by up to 15 years in prison.
Mr. O’Leary did post threats on Facebook
A few years ago, Timothy Ryan O’Leary put the following tasteless threat on his Facebook wall, “F\*\*K my [relative]. . . if you ever talk to me like [that] again . . . I’m gonna f\*\*k you up and bury [you]. . . I’ll tear the concrete up with your face . . .”
Florida Statute Section 836.10
The State prosecuted Mr. O’Leary under Fla. Stat. §836.10, which states that a person commits a second degree felony when he:
- a threatening communication
- and sends the communication
- to the person threatened
- or a family member of the threatened person
Mr. O’Leary was Facebook friends with his cousin.
Unfortunately for Mr O’Leary, he was Facebook friends with his cousin, who was also family with the threatened relative. Mr. O’Leary was not Facebook friends with his relative. And he did not send the threat directly to his relative. Even so, Mr. O’Leary’s cousin told his uncle about the post, and the uncle told the threatened relative. Because they were all related, Mr. Leary was convicted of “sending” threatening communications to a family member of the threatened person. The court sentenced Mr. O’Leary to two years of community control, which is a stricter form of probation
Mr. O’Leary appealed his conviction to the 1st DCA, arguing that a person can only break the above law if he “sends” a threatening communication directly. Mr. O’Leary then argued that because he only posted his comment on his own Facebook wall, he did not “send” the communication directly to anyone. Mr. O’Leary’s cousin even testified that Mr. O’Leary never asked his cousin to share the post with anyone.
In Florida, “posting” to your Facebook wall is the same as “sending.”
Florida’s 1st DCA ruled that posting a comment to your Facebook wall is like “sending” a communication to all of your friends. _O’Leary v. State_, CASE NO. 1D12-0975 (Fla. 1st DCA 2013). The court then reasoned that because Mr. O’Leary’s cousin was both a Facebook friend and a family member of the threatened person, Mr. O’Leary broke the law. If Mr. O’Leary had not been Facebook friends with his cousin, he probably would not have been found guilty.
In its opinion, the 1st DCA also admitted that this was a first of its kind case in Florida, which is telling. Even though Facebook is nine years old and claims to have over 680 million users as of December 2012 (http://newsroom.fb.com/Key-Facts), no one has ever examined the legal question whether posting a threat on your own Facebook wall constitutes a second degree felony, punishable by fifteen years in prison.
Mr. O’Leary certainly made an error in judgement. However, the punishment does not seem to fit the crime. Let’s hope that as social media progresses, and appellate judges become more familiar with the technology, we see more common sense statutes from congress and sensible rulings from the court. As it stands today, posting a threat on Facebook could land you in prison for a very, very long time.