This week, the 1st District Court of Appeal, State of Florida, upheld a trial court ruling that a defendant who posted, on his own personal Facebook page, a tirade of profanity and promises to hurt a relative violated Florida Statute 836.10, Written Treats to Kill or Do Bodily Harm, a second degree felony. O’Leary v. State, Slip Op. No. 1D12-0975 (Fla. 1st DCA, 2013).
Timothy Ryan O’Leary wrote the anti-gay diatribe, aimed at one of his relatives and her same-sex partner, on his Facebook page. Because O’Leary is Facebook friends with his cousin Michael and Michael is also related to the threatened relative, it broke the law, even though the threatened relative was not contacted by O’Leary personally in the incident.
O’Leary sought to have the charges dismissed because he argued that the Facebook comments were not “sent” to the threatened relative, but simply posted on his personal page. O’Leary had pled no contest to one count of the offense (the other count having been dropped by the prosecution) with the stipulation that it could be appealed. He was sentenced to 10 years in prison followed by 10 years of probation.
In denying O’Leary’s motion to dismiss the charges, the 1st DCA used the three element test in State vs. Wise, 664 So. 2d 1028, 1030 (Fla. 2nd DCA 1995). For a violation of Florida Statute 836.10, Wise requires:
1. A person writes or composes a threat to kill or do bodily harm;
2. The person sends or procures the sending of that communication to another person;
3. The threat is to the recipient of the communication or a member of his family.
The 1st DCA found that O’Leary’s Facebook post met each of the Wise criteria.
O’Leary argued the threat was not “sent,” but Wise’s two point definition of sending included “the depositing of the communication in the mail or through some other form of delivery” and “receipt of the delivery by the person threatened.” Since O’Leary’s threatening post constituted delivery and a family member of the threatened person received the post, the Court concluded the threat was, by legal definition, sent.
The Court also used this opportunity to use Facebook’s own mission statement “to give people the power to share and make the world more open and connected” in their decision making. The ruling notes that had O’Leary “desired 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 to other people.”
This is an interesting case that holds “online behavior” under the legal microscope. O’Leary has ramifications, not only for those posting on their own FB pages, but for how law enforcement handles now-criminalized complaints of threats made on the Internet. Hang on to see if this decision heads to the Florida State Supreme Court or higher…
Randall
