One of the consequences of social media is its impact on language. We now have words in everyday vocabulary that simply didn’t exist not that long ago. I won’t endeavor to list them, but who knew what a “blog” was back in the day? And if you talked about a “tweet” in the not too distant past, the reaction would have been a blank stare. It may still be depending on the age of the person you talk to.
Social media has also affected the definition of words we thought we had a handle on. Like for example, “journalist.” In the past, a journalist worked for a newspaper, TV or radio. It’s not as simple now –given how easy it is to set up a blog for example. And the latest definition to get altered in cyberspace may be “threat.” A recent case in Florida recently examined this issue.
The case involved a defendant named Timothy Ryan O’Leary. Mr. O’Leary apparently had an issue with a relative and her partner. Actually, as you will see, Mr. O’Leary had a number of issues. Among them, anger management. He posted this diatribe on his Facebook page (I have censored it substantially): “F … my [relative] for choosin to be a lesbian and f. . . [the partner] cuz you’re an ugly a## b**** . . . if you ever talk to me like you got a set of nuts between your legs again . . . I’m gonna f… you up and bury your b**** a##. U wanna act like a man. I’ll tear the concrete up with your face and drag you back to your doorstep. U better watch how the f… you talk to people. You were born a woman and you better stay one.”
Another cousin of O’Leary’s was a Facebook friend (just a guess here, but I’m betting O’Leary doesn’t have too many of those) and he showed it to the relative. That wound up getting O’Leary charged under a Florida statute that says: “any person who writes or composes and also sends or procures the sending of any … electronic communication … containing a threat to kill or do bodily injury to the person … or any member of the family of the person to whom such letter is sent commits a felony of the second degree.” O’Leary filed a motion to dismiss the charge, but the Florida Appeals court denied the motion, meaning the case can proceed to trial.
According to the Court, the statute requires that the defendant do three things: (1) write or compose a threat to kill or do bodily injury, (2) send or procure the sending of the message, and (3) threaten the recipient or a member of his family. The question here is whether O’Leary sent the threat. The court said he did, noting: “When a person composes a statement of thought, and then displays the composition in such a way that someone else can see it, that person has completed the first step. . . .” And, according to the court, when the threatened individual or a family member views the message, then the second and third steps are completed and the statement is “sent.”
I’m not so sure about this one. Don’t get me wrong. I am not a fan of Mr. O’Leary. But two things concern me. First, does a person really “send” a message to someone when there is no guarantee that the target will receive it? And second, there is a First Amendment concern. While “threats” have generally not been considered protected speech, courts have usually required there be some imminence to the threat. That is, it is not enough to say mean things, I need to be in a position to immediately carry it out. In other words, posting an online rant is not the same as getting up in someone’s grill as the kids say. By requiring an “imminence” factor, courts sought to distinguish the general advocacy of violence from a more direct confrontation. This case may be blurring that line.