Be careful what you post: Social media and freedom of speech

A Texas teenager faces possible jail time for a threatening Facebook post while a British man is going to jail for two years for his own Facebook threats.

Photo by Adam Steele

Today, most people have social media accounts.  Facebook, Instagram, and Twitter have all become avenues of expression that allow people to share their thoughts through status updates and photos.  Some argue that limiting users’ access to these social media websites infringes upon their right to freedom of speech and expression.  However, with recent shootings and other acts of violence linked to social media in the United States, an important question is raised: should freedom of expression be honored where blatant threats are made?  

The First Amendment of the United States Constitution reads, in part, “Congress shall make no law….abridging freedom of speech.”  The First Amendment protects an individual’s right to freedom of expression from government interference.  Freedom of expression also covers the right to freedom of speech.  If the government wishes to restrain an individual’s freedom of speech, the Supreme Court of the United States requires the government to show a substantial justification for doing so.  However, the Supreme Court has also allowed the government to restrain speech where such speech breaches peace or will cause violence.  In Reno v. ACLU, the Supreme Court recognized that freedom of speech applied to an internet setting and afforded it the same First Amendment protection as books, magazines, and newspapers. 

What not to post on Facebook:  “I think Ima shoot up a kindgergarten.  And watch the blood of the innocent rain down.  And Eat the beating heart of one of them.”

Justin Carter, now nineteen years old, was sent to a Texas county jail in February after being charged with making terroristic threats.  Carter is an online gamer who lashed out on Facebook after a fellow League of Legends player called him “crazy.”  In response, Carter posted the following on his Facebook page:  “I’m f – – ed in the head alright.  I think Ima shoot up a kindergarten / And watch the blood of the innocent rain down/ And eat the beating heart of one of them.”  Realizing that Carter lived near an elementary school, a concerned woman reported the posts to the police.  Carter’s parents claim that he was being sarcastic and followed the comments with “jk” (just kidding) and “lol” (laugh out loud).  However, police were dubious of the Carters’ assertions.

Regardless of the seriousness of Carter’s claims, he was arrested and imprisoned for making the threats.  Carter’s case has gained nationwide attention since he was put in jail, and his parents indicate that he has been mistreated in jail.  Carter’s father, Jack, says Carter has suffered from concussions and black eyes, as well as being isolated in solitary confinement for depression.

Although the police did not recover any weapons from Carter’s room, Lt. John Wells told NPR that while Carter’s situation is understandable and unfortunate, “he made the comments, and it is an offense. We have to . . . protect the general public and specifically, in this case, with it involving schoolchildren, we have to act. We take those very seriously.”  Carter responded, “I was a smartass, sarcastic, a regular keyboard warrior, and I was dumb.”

On July 11, 2013, an anonymous benefactor posted Carter’s $500,000 bail.  Carter’s lawyer, Ivan Friedman, has filed a motion to dismiss asserting that Carter’s Fifth Amendment rights have been violated.  According to MSNBC, Carter rejected a plea bargain of eight years in prison.  If Carter is found guilty, he could face up to ten years in prison.

Another young man, Caleb Clemmons, faces similar charges for terroristic threats after making a post on Tumblr—a short-form blogging platform—that said he was going to “shoot up” a college the next day.  Clemmons went on to request people to spread the word about his intentions to see if he would be arrested.  It took police only a few hours to locate and arrest Clemmons, who has remained in jail for months.  Clemmons has referred to his comments as “an experimental literary piece and an art project.”  However, Clemmons’ trial will begin this week, and—if found guilty—he could face up to five years in prison.

British man sentenced to more than two years for similar threats.

During the same time period, February of 2013, Reece Elliot, a British man from South Shields, United Kingdom, was arrested for posting that he planned to kill “at least 200 people” at a school in Tennessee.  Because the threats were so specific in nature, Elliot will receive a prison sentence of twenty-eight months.

Initially, Elliot joined a Facebook page to memorialize a Warren County High School student who had passed away after a car accident.  Elliot then instigated several online arguments within the group by insulting the deceased student and posting that he would steal his own dad’s guns in order to carry out a shooting at the high school.

In response to his threats, Warren County schools took the posts seriously and were put on lockdown.  More than 3,000 students were kept out of school while Elliot was tracked down.  Elliot pled guilty and showed “genuine remorse” before being sentenced.

Bottom line: watch what you say online.

Overall, when people such as Carter and Elliott post threatening statements on Facebook, they become publishers and are subject to the law.  People should be wary of what they post online and know the difference between an opinion and a threatening statement.

For instance, a 2010 ruling by a federal magistrate held that the First Amendment protected a Facebook page used by high school student Katherine Evans to bash her teacher.  However, contrary to the examples of Carter and Elliott, no real threat was made on Evans’ page.  Instead of making threats of physical harm, as Elliot and Carter did, Evans used the page as a way to vent.  Evans stated the purpose of her Facebook page as: “To those select students who have had the displeasure of having Ms. Sarah Phelps, or simply knowing her and her insane antics: Here is the place to express your feelings of hatred.”  This is more of an example of where the line from opinion to a terroristic threat is not quite crossed.

According to Ryan Calo, an attorney with Stanford Law School’s Center for Internet in Society, “we have constitutional values that will always need to be redefined due to changes in technology and society.”  While some things may be acceptable to say online, it is not acceptable to make blatant threats.  The Supreme Court has shown that it will allow the government to restrain speech where such speech breaches peace or will cause violence.  Facebook’s terms of service even say, ”You will not post content that is…threatening [or] incites violence.”

Overall, social media users should heed Carter’s advice given when he was asked about his situation: “I certainly would have thought a lot more about what I said and how permanent my writing — and everyone’s writing – is. People should be very, very careful of what they say. It’s being recorded all the time, if you say it on any website, anywhere.”

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About Shannon Page, Senior Staff Writer (11 Articles)
Shannon Page served as a Staff Writer for the Campbell Law Observer. She is from Wallace, North Carolina. Shannon received her Bachelor of Arts in English from Campbell University in 2010. After her first year of law school, she traveled to Venice, Italy to study Comparative Business Organizations through Wake Forest University School of Law. During law school, she interned at Ludlum Law Firm and at The Law Offices of Jeffrey G. Marsocci. Shannon graduated from Campbell Law School in May 2014.
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