Most Facebook users have likely posted something that they have instantly regretted. It is easy to mentally disassociate what one posts on Facebook and other social media sites from reality. For several users, however, online posts have had serious real-life consequences.
Facebook posts that led arrests in the past usually involve violence and encouraging others to commit violent acts. Speech of this nature, so-called “fighting words,” has historically been some of the most widely regulated by the government. The idea behind this regulation is that such speech contributes very little to the “marketplace of ideas.”
In the case of Elonis v. United States, argued before the Supreme Court on December 1, 2014, the suspect was arrested for posting violent threats against his wife on his Facebook page. Elonis claimed that the words were merely written as rap lyrics and were not intended to threaten anyone. In deciding this case, the Court will seek to determine whether it is necessary to ascertain the intent with which a violent statement posted to social media was made. The district courts are divided over the question of whether a suspect’s intent is a determinative factor in his or her conviction.
Making arrests based upon social media posts is problematic because the written word can easily be taken out of context. In addition, there is no guarantee that the person on whose account the message appears is in fact the one who wrote the words. Social media accounts can easily be hacked by a person other than the owner. Besides the account information and a computer’s IP address, there is very little information to prove who was the true source of a social media post.
There is very little help available for individuals who are arrested for things that they posted on Facebook. The statement itself provides the probable cause necessary for police to carry out the arrest. A person who posts something on Facebook that leads to his or her arrest cannot claim the protections of the Fifth Amendment because the statement was not made to the police. The Fifth Amendment does not apply to statements that a suspect voluntarily makes of his or her own accord.
In addition, violent statements posted on Facebook cannot be excluded by the Hearsay Rule. The Hearsay Rule prevents statements from being introduced in court that were made out of court and that are offered in order to prove the truth of the matter that they assert. Attempting to claim the protection of the Hearsay Rule will not avail the speaker on Facebook because such a statement falls under an exception to the Hearsay Rule known as “statements of independent legal significance.” A statement of independent legal significance means that the words themselves are an action; they are evidence of the thing to be proven rather than merely something that was said. In this case, the words themselves would constitute a threat to another person.
Admission in court of violent Facebook posts could also be justified by classifying the words as a statement against interest. A statement against interest is something that is likely to be trustworthy because when it was made it could subject the speaker to prosecution and therefore the only reason someone would make the statement would be because it was true. A violent Facebook post would likely be considered a statement against interest because it would subject the person who made it to legal prosecution. Given the difficulty that would be faced in defending against a charge based upon a Facebook post, the moral of the story is clear: Be very careful what you post.