In an apparent first in Florida law, a state appeals court ruled this week that posting threats on one’s personal Facebook page can be prosecuted under state law.
The 1st District Court of Appeal decided in a criminal case that a Facebook post could be considered a “sending” for the purposes of the “sending written threats to kill or do bodily harm” law, a second-degree felony.
The language at issue was in a status that the defendant, Timothy Ryan O’Leary, had posted on his Facebook page in 2011 about a female relative and her same-sex partner. The relative didn’t see it but found out about it through another family member.
O’Leary said, in part, that he would “tear the concrete up with your face and drag you back to your doorstep.” He added, “(You) better watch how … you talk to people. You were born a woman and you better stay one.”
O’Leary argued he couldn’t be charged because he did not “send” the threatening language to his relative. A Duval County circuit judge denied his request to dismiss the charges.
After the state dropped one of two counts, O’Leary pleaded no contest to the remaining count. He was sentenced to 10 years in prison, followed by five years of probation. The probation requirement was later reduced to two years.
O’Leary appealed, and a unanimous three-judge panel sided with the trial judge.
The panel’s opinion noted that O’Leary’s case passed the legal test of showing a violation of the law:
• A person “writes or composes a threat to kill or do bodily injury,”
• The person “sends or (arranges for) the sending of that communication to another person,” and
• The “threat is to the recipient of the communication, or a member of his family.”
“Given the mission of Facebook, there is no logical reason to post comments other than to communicate them to other Facebook users,” the opinion said.
If O’Leary wanted “to put his thoughts into writing for his own personal contemplation, he could simply have recorded them in a private journal, diary, or any other medium that is not accessible by other people,” it added.
“Thus, by the affirmative act of posting the threats on Facebook, even though it was on his own personal page, appellant ‘sent’ the threatening statements to all of his Facebook friends,” including the family member of the victim who saw the threat.
That person told yet another relative, and that relative informed the victim.
The case is O’Leary v. State of Florida, 1D12-0975.
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