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Facebook, free speech, threats and criminal law

By Scott Tibbs, December 10, 2014

A little advice can go a long way to keeping yourself out of trouble: Never say anything online (via social media or anywhere else) that you would be horrified to see on the front page of the newspaper or as the lead story on the nightly news. If rapper Anthony Elonis, facing charges for allegedly threatening his former wife on Facebook, had taken that advice he would not be in legal hot water.

Elonis says he was blowing off steam and his writing was therapeutic - that he never intended to harm or terrorize his wife. Maybe that is true, and maybe it is not. But taking Elonis at his word, it was still a foolish thing to do. He unnecessarily put himself at legal risk, and he already lost his job over a similar ill-tempered post on Facebook. If there was no intent to harm or threaten, it would be tragic to see him to go prison for simply ranting.

The reality is that context matters. An acrimonious break-up provides a worrisome context, one that should at least be examined in order to assure everyone is safe. Intervening before a crime happens helps the victim, obviously, but also prevents a potentially violent person from throwing his life away.

This is not an excuse for a hysterical and absurd over-reaction to a harmless posting, of course.

More than at any other time in history, we live our lives in the public eye. While an offhand remark or an angry rant had the potential to get someone in trouble in 1985, the potential for trouble is much higher when you can instantly broadcast that rant to several hundred people (or several thousand people) in an instant. It is a good bet that a significant number of those people will interpret it in a way the person ranting never intended.

The ultimate lesson: Think before you post and do not post while angry.