To You, Or About You?

When is writing about someone the equivalent of writing to them?

The distinction is an important one. Writing about someone enjoys broad First Amendment protection. Writing to someone can, under some circumstances, be treated as harassment, or as a threat, or as a violation of an existing restraining order — especially if the contact is unwelcome and threatening.

The distinction is rife for abuse. Consider convicted perjurer, drug dealer, and domestic terrorist Brett Kimberlin, who got a broad and unprincipled "peace order" against blogger Aaron Walker purporting to prohibit him from blogging about Kimberlin. Kimberlin's theory was, in part, that because he had set up Google alerts on his name, by blogging about him Walker was contacting him and harassing him. Or consider blogger Dan Valenti, saddled with an unconstitutionally broad restraining order forbidding him from blogging about a criminal case on the bogus theory that his writing about someone constituted harassment.

Thanks to several tipsters, I see that a Florida court has examined the distinction in the context of a threats case. The case is Timothy Ryan O'Leary v. State of Florida, and the opinion is here.

O'Leary sounds like a scary nutcase. He posted the following on his Facebook page, referring to his relative and her partner:

FUCK my [relative] for choosin to be a lesbian and fuck [the partner] cuz you’re an ugly ass bitch . . . if you ever talk to me like you got a set of nuts between your legs again . . . I’m gonna fuck you up and bury your bitch ass. U wanna act like a man. I’ll tear the concrete up with your face and drag you back to your doorstep. U better watch how the fuck you talk to people. You were born a woman and you better stay one.

O'Leary's cousin Michael — a Facebook friend — showed this statement to the threatened relative. The issue the Florida appellate court confronted was this: by posting the threat on Facebook, did O'Leary "send" it to his relative or her family, as required by Florida's criminal threat statute? Yes, said the court:

Here, appellant reduced his thoughts to writing and placed this written composition onto his personal Facebook page. In so doing, the posting was available for viewing to all of appellant’s Facebook “friends.” With respect to the posting in question, appellant had requested Michael O’Leary [note: the cousin mentioned above] to be appellant’s Facebook friend, a request that Michael accepted. By posting his threats directed to his family member and her partner on his Facebook page, it is reasonable to presume that appellant wished to communicate that information to all of his Facebook friends. Given the mission of Facebook, there is no logical reason to post comments other than to communicate them to other Facebook users. Had appellant 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 by other people. 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 Michael. Michael received the composition by viewing it. As the trial court correctly ruled, at that point appellant’s violation of section 836.10 was complete, because the target of the threatening composition was a relative of the recipient.

In other words, by posting the threat on Facebook, O'Leary sent the threat to Michael, a relative of the victim, satisfying the elements of the statute.

Perhaps this result is less troubling because it concerns a threat of bodily harm, not a discussion of a disputed subject. (It appears that the question of whether this was a "true threat" — meant to be taken seriously, or reasonably taken seriously — was not the issue contested in the case.) But it's easy to see how, in an age of forums and blogs and social media, the doctrine could be abused. If someone has demanded that you stop writing about them, but you continue, knowing that their friends monitor what you write and will relay it to them, are you "sending" your communication to them? Doesn't this threaten to give people a heckler's veto over people writing about them? Or will courts interpret the doctrine narrowly to apply only to threats, when circumstances suggest that the defendant intended to use the medium to communicate the threat to its ultimate victim?

By the time the courts figure it out, we'll probably be using an entirely different technology.

Last 5 posts by Ken White


  1. tsrblke says

    I'm curious though because this medium is facebook, and as the court notes the defendant asks the person he wrote about to be his friend, which implies a kind of direction.
    If for example he had just put this up on a random blog (or what have you) with zero specific direction to the person he was writing about would it have made a difference?
    Similarly if I write angry letters to the newspaper about [business X] which I believed wronged me, am I harassing the owner? I haven't sent anything to him, and he's certainly free not to read the paper. (On the other hand if I specifically mailed him a copy of the paper every day, we'd obviously have a different context.)

  2. Jordan says

    Hmmm. I'm comfortable with where this ruling landed, but it is a slippery slope we're on here. I'd argue that (having added someone as facebook friend), posting threats about them on your wall is (if not communicating to them, then certainly in their direction. To my mind, it's similar to shouting threats in a school auditorium or at a wedding reception. While there are certainly other people around who receive the threats, it is a relatively small audience and a high likelihood of communicating to the person being threatened.

    Writing on a blog, however, seems closer to shouting threats in a crowded sports stadium, or while simply walking down the street. Yes, the person may be around, but in all likelihood they are not. If they are, they're relatively unconstrained to leave, and the people on the street can listen or ignore you as they please. While it's still not a particularly great idea to stand in the middle of downtown screaming obscenities and threats, if you do, you're that crazy guy on the corner, not a threatening stalker.

    IANAL, so all of this is just my "gut feeling" about the issue and not any kind of particularly well-structured legal theory.

  3. says

    @tsr: You are misreading it. The cousin was the one he asked to be a friend. The relative he was threatening was not a Facebook friend.

  4. Mike says

    Ken, my question would be by mentioning the names, did he "tag" them such that facebook notified them of the post and/or posted it in their feed. I'm not clear from the court's description. If that were the case, it's more like sending an email to a listserv that the cousin had asked him to join.

  5. Travis Ormsby says

    Isn't O'Leary's use of the second person "you" pretty suggestive of an intent to write to somebody, rather than about somebody?

    It's possible that he meant it in a sort of abstract way, the way somebody might use "you" to mean "somebody", but it seems likelier that O'Leary is an idiot who wasn't aware that the target wouldn't have noticed the threat without being told about it.

    It seems more like if I mailed a threatening letter to the wrong address and the person who received it put it in the intended recipient's mailbox. Am I not guilty of making threats in that case?

  6. says

    That one is a tough call. The Florida statute in question reads:

    Any person who writes or composes and also sends or procures the sending of any letter, inscribed communication, or electronic communication, whether such letter or communication be signed or anonymous, to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

    At least the court tried to address whether the Facebook post met the definition of a "communication is sent, or a threat to kill or do bodily injury to any member of the family", instead of saying, "That's disgusting, and we don't like him, so we're finding against him".

    As the stature is written (it specifically says the communication need only be sent to a family member of the threatened person — presumably under the assumption that family members talk to each other), I might have ruled the same way. For me, the deciding factors would be that O'Leary reportedly initiated the friend request to family member "Michael", then posted the threat (and given the language, I do consider that a threat). If "Michael" had made the friend request which O'Leary automatically accepted it as so many FB users do, and then "Michael" saw the post in question, I might decide otherwise under the reasonable belief that O'Leary wasn't completely clear on who would receive the message. If this were a "family newsletter" email list rather than Facebook, would O'Leary have demonstrated similar intent to convey a threat if he added "Michael" to the list, then sent the threat to the list?

    If this were a traditional postal "family Christmas newsletter" that "Michael asked to receive, would that be different?

    In short, was the guy blowing off steam harmlessly in a public venue (like over beers in a bar), or was he sending a specific threat via a communications channel to the "victim" which he specifically established? Free — albeit nasty — speech or direct threat?

  7. says

    Ken, if Henny Youngman's wife were in his audience, would his whole "Take my wife, please" shtick be harassment if he knew she was there? What if it was the first time he did the joke, so she had no idea it was coming?
    I think the judge got it wrong vis a vis FB. It was a group statement, said to no one in particular. Even though the cousin had the right to read the statement, it wasn't specifically directed to him.

  8. Katie says

    Is there a difference between writing, "Bob is a jerk" and posting "Bob, you are a jerk and I am going to punch you"? I mean, the first one seems a statement of opinion, and the second sounds way more like a directed threat.

  9. Chris R. says

    Everyone knows that on Facebook all you are ever supposed to do is write passive aggressive rants, not targeted threats! N00b.

  10. says

    @Jay: "if Henny Youngman's wife were in his audience, would his whole "Take my wife, please" shtick be harassment if he knew she was there? What if it was the first time he did the joke, so she had no idea it was coming?"

    Is O'Leary a known stand-up comedian who advertises his Facebook page as samples of his comedy routine? Would "Mrs. Youngman" reasonably think that Henny was trying to auction her off, or merely being offensively humorous? One is a crime, but the other is protected speech. Context matters, and I think context is what the judges were trying to look at in determining if this met the statute definition of a threatening communication. As the statute is written, I think it does. The defense might continue appeals on the grounds that Facebook really is something different that the law doesn't take into account, but I think that's an uphill battle on a 45 degree slope.

  11. says

    Seems the obvious argument would be that if he'd intended to communicate that message to his "victim" he would have written it on their wall, not his.

  12. Dan Weber says

    Huh, is a threat only wrong if the putative victim is aware of it? Are there any other goals of threats besides intimidating the victim?

  13. Bill Stade says

    As Katie and Travis have pointed out, the appellant’s words are clearly a specific threat. This was not an issue in the case because it was (most likely) agreed to. So I’m not sure why Ken would worry that this might be broadened to include other kinds of communications.

  14. Tomrigid says

    What if, in another time, the restrained would have posted this rant as a handbill in a public space, knowing (or "should-have-knowning") that the restrainor would pass by?

  15. Chris R. says

    Bill Stade, I think Ken's worry is that the decision goes on to specifically say:

    Had appellant 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 by other people.

    Which seems to indicate that writing anything about anyone on the internet could be construed as directly communicating with them.

  16. Anonymous says

    Could somebody please correct me if I got this wrong?

    Step one: O'Leary "friends" victim's family member on Facebook

    Step two: O'Leary writes that terrible post on Facebook, which reveals it to the victim's family member (Because they are friends on facebook)

    Step three: The court says this counts as sending the threat to a family member, which is illegal.

    That about right?

  17. Chris R. says


    Victim's family member is also O'Leary's family member, they are cousins, which I find confuses the matter significantly. Note the victim is a family member of O'Leary as well.

  18. Bob says

    Would this have been construed as a threat if he had posted it on Facebook in the same way:

    Fuck my [relative] for choosing to be a lesbian and fuck [the partner] because she's an ugly ass bitch. If she ever talks to me like she has a set of nuts between her legs again, I’m gonna fuck her up and bury her bitch ass. She wants to act like a man, I’ll tear the concrete up with her face and drag her back to her doorstep. She better watch how the fuck she talks to people. She was born a woman and she better stay one.

    Serious question.

  19. says

    @Chris R: "Which seems to indicate that writing anything about anyone on the internet could be construed as directly communicating with them.

    Possibly. But I think this part shows they were attempting to narrow it down a bit:

    With respect to the posting in question, appellant had requested Michael O’Leary [note: the cousin mentioned above] to be appellant’s Facebook friend, a request that Michael accepted. By posting his threats directed to his family member and her partner on his Facebook page, it is reasonable to presume that appellant wished to communicate that information to all of his Facebook friends.

    The friending process seems to be at issue. I think they're saying that by voluntarily friending "Michael", O'Leary, did not simply make a general public post, but directed his threat into a channel — which he created by friending — to the victim.

  20. Chris R. says

    Also I after reading the opinion I find that it's a bit more convoluted than I originally thought.

    Michael viewed the post directed towards his relative and her partner. Michael, on his own initiative, showed appellant’s threatening post to his uncle. The uncle, on his own accord, informed the victims about appellant’s Facebook posting.

    1. Timothy O'Leary does said post.
    2. Michael, his cousin and the cousin of the victim sees said post.
    3. Michael shows Uncle.
    4. Uncle shows victim.

    However according to Florida state law, by Michael seeing the post, it's already a crime. In fact, I guess since Timothy O'Leary is victim's family member, by he himself seeing the post it was already a crime…

  21. Anonymous says

    I'm going to proceed from the assumption I got it right. In that case: I think the court managed to get it right on this one specifically because of the friending process; it seems to me much like facebook is public in the sense that when you post stuff there, everyone can get it but the service model is more like a mailing list; things you post to Facebook are sent specifically to people you have 'friended," which sends it specifically to the family member, which falls under the law.

  22. anne mouse says

    Some of the commenters are missing an important part of the Florida statute, which Ken could have highlighted: A threat is criminal if it is delivered either a) directly to the target, or b) to a "family member" of the target.
    This statute is perhaps less than ideal when the threatener, the target, and the recipient are all related to each other, but I can't find any fault with the court's interpretation of the facts in light of the statute.
    I do not believe that this is the first time someone has threatened a mutual relative. It seems the defendant did not find the precedents helpful, and chose instead to argue that posting to one's own so-called "personal wall" on Facebook somehow magically cannot qualify as an communication. The judge rightly rejected that argument, given that postings on one's "personal wall" are delivered to all one's Facebook friends.
    A threat was intentionally delivered to a family member of the target. Case closed.

  23. Chris R. says

    @Bear, if Michael wasn't Timothy's cousin and the friend request was made for the reason to just share the threat I'd agree. However Michael is both victim's cousin and Timothy's cousin. No body wins when family members go to court. I believe Timothy did break the Florida law, but I don't like the over broad scope of that second opinion I posted. I think they should have just handled it within the family though.

  24. Alan says

    I will reproduce some of my comments from my email to Ken-

    As much as I want this person to come to a bad end, I do wonder if this interpretation will now be used to prosecute overwrought teenagers who go home and post to facebook- "Fuck, I want to KILL my teacher/parent/sibling/friend/significant other."

    I think given the severity of the sanctions that criminal law should be more generous to civil liberties, not less. But the fact is that there would be no grounds under civil law to do anything to the poster. It's not defamation, you would have to show an imminent danger for a restraining order, and intentional infliction of emotional distress would require a much more substantial course of conduct. And yet Florida law says this is a second degree felony, punishable by a max of 15 years in prison.

  25. Bren says

    I have to think this exceeds the FL legislature's intent also. Sending an threatening email is a really scary, life altering thing for the victim, and suggests a dangerously imbalanced perpetrator.

    People blowing off steam and being massive idiots on their own Facebook page, that's so commonplace. I can see this vile homophobe "thinking" nobody would pass his rant along. It's wrong, but I doubt the legislature intended a 5 year jail term for it.

  26. perlhaqr says

    I think I would tend to argue that "if you ever talk to me like you got a set of nuts between your legs again . . . I’m gonna fuck you up and bury your bitch ass." is different from "Kimberlin is a fraud and a liar who frequently uses legal threats to get people to stop telling the truth about him, and uses his reputation to make people fear for their lives."

    In the first case, the use of "you" makes this a much more direct communication. The medium is not the distinction here, because a similar message, couched as "If she ever talks to me like she got a set of nuts between her legs again . . . I’m gonna fuck her up and bury her bitch ass.", even posted to Facebook, is much more of a… position statement than a direct threat. It is, as you mention in the title of your piece, talking about her, rather than to her.

    It's still obviously vile, of course. Just much less actionable, IMO. But I'm so not a lawyer, so this is clearly just my rumination and opinion.

  27. Anon_Lurker says

    In the specific case of Facebook, my non-lawyer understanding is that a specific threat was made to a specific individual using mechanisms unique to Facebook. The friending mechanism and privacy allows one to control who sees what you have posted. The post is not necessarily publicly accessible.

    However in the case of a blog, you are dealing with something more like an newspaper op-ed piece. It may negatively discuss someone's actions and like an op-ed is protected speech. For one to know what was written on a blog or op-ed one needs to search out the article. Also, blogs and op-eds are normally publicly accessible.

  28. says

    I'm worried of the larger applications–the two cases Ken mentions in his post, Kimberlin and Valenti, are enough to send chills up one's spine as it is.

  29. En Passant says

    I agree with those above who made this general point: Timothy displayed his threat where he knew that Michael (Timothy's facebook friend) would see it. Because the person against whom the threat was made was a relative of Michael, Timothy has "sent" Michael a threat of bodily harm against a "member of the family of the person to whom such letter or communication is sent".

    Depending, of course, upon what is a "member of the family", and whether Timothy knew that Michael was his "Facebook friend" who would receive the message.

    Is a cousin a "member of the family"? What about second cousin? What about third cousin twice removed?

    Did Timothy know that Michael could readily view the message? I think the facts indicate this is true. But maybe there is a good argument that it is not.

    The statute looks like it was drafted by third grade children trying to demonstrate that they could write a compound sentence. But it's from Florida, where that may even be true.

    If the FL Supreme Court always keeps it as narrow as the facts in this case, it's probably OK. But the statute is rife with opportunity for overbroad and over reaching application.

    I have seen a trial court case (not in FL) where defendant was charged with violation of a "no contact" order for making a post to Usenet. It was very clearly contact directed at the protected person, as shown by both the Usenet headers demonstrating it was a follow-up to the protected person's post, and by its content. But that's very different from this case.

  30. James Pollock says

    "Are there any other goals of threats besides intimidating the victim?"
    Yes, sometimes a threat is actually a cry for help. As most obviously in the case of people who make threats to their own health, safety, etc. A threat directed against a person's significant other may simply reflect fear that the person is drifting away, and will be missed.

  31. Hasdrubal says

    I don't know that there's a difference between addressing a threat as "If you…" verses "If she…" in the case of the Florida rule, because it violates the law if the threat is sent to a family member as well. They're certainly saying the same thing, just addressed to different people.

    That does raise an interesting point though: If he meant what he said to be a threat, and meant for that threat to be carried to her through a third party, wouldn't he have addressed the victim in the third person? It seems more like he's blowing off steam by addressing it in the second person in a place where she cannot directly receive it.

    I'm confused on the whole "who friended who" theme. Why should it matter? If the theory is that he communicated a threat to a family member because the family member was a Facebook friend, how does it matter who initiated the friendship? It's irrelevent, the person is a friend therefore the person is going to receive the communication. (Though that's not entirely a given, I've known more than a few people think they only sent posts to a select group but actually made it viewable to everyone.)

    Even if Michael had sent the friend request two years ago, he would have received the threat when the post was made. Still irrelevent. The only way I can see it mattering is if O'Leary made the post first, and then immediately sent a friend request to Michael. It wouldn't be reasonable to hold O'Leary liable for an otherwise legal post that was made before Michael became a friend in any other circumstance I can think of.

    I'm not sure that the logic on this ruling is completely benign. Think about it this way: I have made comments on the Popehat blog, so Ken should know that I am in the audience. If he then says something like "We are going mobilize 80,000 men and kill Hannibal at Cannae if he doesn't leave Italy," would that qualify as a threat in Florida? He made a specific threat of violence in a place where he knows a relative of the victim will receive it.

    On the other hand, it's a tricky problem. I can see the reason to consider it a threat to, say, post a threat to murder someone on a billboard they drive past on the way to work. That's delivering a threat, and ensuring they will receive it, but not making it to their face. And it's not necessarily different than making a post on a blog that you know a certain person reads.

  32. Malc says

    @En Passant: Timothy knew Michael was his Facebook friend because Timothy took steps to make Michael his Facebook friend. I.e. Timothy "pushed" towards to Michael, rather than not Michael pulling from Timothy. Add the language ("you" rather than "she") and you have a fairly good trail of Timothy building a communications channel to deliver a specific message to the person he was threatening.

  33. Merissa says

    I really don't see how the venue matters. It's obviously written in a threatening manner. If someone says they're going to flay me alive and feed me my own uterus, I would report it regardless of whether they said "I'm going to flay you alive and feed you your own uterus" or "I'm going to flay that bitch alive and feed her her own uterus."

  34. says

    @Chris R: Yeah, the family handling it themselves would have been smarter. Unless there was already a history of actual violence, which I don't see mentioned. But once they turned it over to the authorities and convinced the prosecutor to go for it, what else could the courts do but attempt to apply the law as written?

    @Alan: I do wonder if this interpretation will now be used to prosecute overwrought teenagers who…"

    A definite risk. Hopefully someone will have brains enough to evaluate whether an actual threat was made (as opposed to angst-riddem teen hyperbole). In this it looks like the threat was considered real, leaving the interpretation of the means of communicating it at issue. (FWIW: Last year, an apparently disturbed person said, "Men like Carl "Bear" Bussjaeger should be killed. He would do more good as fertiliser in my rose garden…" It wasn't in a forum to which I was subscribed; it said "should" and "would". Frankly, I didn't consider it an explicit threat. I find the wording of the O'Leary threat much more convincing and specific. Strange and disturbing, but not explicitly threatening. Yet.)

  35. En Passant says

    Malc wrote Mar 20, 2013 @1:04 pm:

    @En Passant: Timothy knew Michael was his Facebook friend because Timothy took steps to make Michael his Facebook friend. …

    Yes, think Timothy knew. I was just looking for arguments (which I haven't yet thought of despite trying) which would show that Timothy didn't know.

    I also don't know, and the court did not address, just what type and degree of kinship defines a "member of the family of the
    person to whom such letter or communication is sent".

    Should it be determined by the Charley Pride rule, or something more limited?

  36. Lucy says

    I haven't read the comments yet, but my first thought is did they address any difference between using the word “you" v words like “ her, she, them…"?

    I can't get through to the link to read it to see if that was addressed.

    I will read the comments, and maybe my thoughts will evolve afterwards.

  37. Xenocles says

    There's a crucial distinction here that I think the court is missing. A Facebook status or a Google search isn't like an e-mail. You have literally told your computer to go out and seek the offending communication. Facebook only presents the status updates you tell it to, first by friending or liking the profile and then further filtered by your inferred or explicit preferences. A page turned up via Google search (automated or manual) is likewise solicited by the recipient.

  38. George William Herbert says

    Stepping back from the specifics here; I think that it's reasonable for what appear to be legitimate threats (regardless of intent to carry them out) either in a private communication that is sent to the proposed victim or their family, OR posted publicly somehow, to be considered things that the state has legitimate interest in discouraging.

    And I think it's fair to call Facebook a public posting, at this point. You can send private messages on FB or build a closed group there which conceivably could be private, but basic wall / timeline postings seem public.

    It's not clear if this is overstretching that statute; I think it's not a wrong thing for the authorities to get involved in.

    I should disclose, however, that I and other family members of mine have a long-time stalker who has repeatedly threatened me, other family members, and a large number of other people with death, bodily harm, and sexual assault. I am slightly biased on this point.

  39. Colin says

    @En Passant – In all probability, there's a separate statute in the criminal code which provides the specific definition of "family member" or whatever similar phrase is used.

  40. Anonymous says

    A Facebook status or a Google search isn't like an e-mail.

    A google search that finds the potential threat on a blog is not like an email, no, but a Facebook Status update is something you can read without searching it out, it will specifically be called attention to for you, if you are a 'friend' of whomever wrote it. The friending process changes things – or at least it does so in my view, and in the eyes of this court apparently.

    To stay in the paper world temporarily, if you post it to e.g. a public forum (or post a threat in the comments of Popehat, for that matter), it's a bit more like sending that threat to the reader mail section of a newspaper or trade magazine – unless you know your target reads that magazine, you probably shouldn't be considered to have threatened your target, who you did not believe would get the message.

  41. Xenocles says

    "…a Facebook Status update is something you can read without searching it out, it will specifically be called attention to for you, if you are a 'friend' of whomever wrote it."

    I guess that's my point. You've already consented to receive communication from your Facebook friends. Although I suppose you could read it as the author knowing that what he writes will be read by the victim (is victim the word here?).

  42. AlphaCentauri says

    The ruling is problematic. It doesn't address specific issues related to FB that would affect the interpretation.

    Under the default settings, if I am a friend of X but not Y, and I post a threat to Y, X sees it in his feed, but Y does not. However, if X responds by defending Y or telling me to STFU, then Y will see it in her feed, too. A family group would be aware of that, because they would be seeing each others posts all the time.

    Did O'Leary change the default settings in any way so as to prevent that from happening?

  43. George William Herbert says

    Even if they're segregated in FB connectivity, the family relationships would seem to mean that sending it to another family member would seem to meet the "or family of" the purported target of the threats.

  44. says

    Regarding Brett Kimberlin, it might be relevant that Google Alerts are increasingly being seen as ineffective, and arguably as nonfunctional as discussed in this Hacker News discussion where users have largely abandoned the service because it no longer actually Alerts.

  45. AlphaCentauri says

    I guess what I'm saying is the ruling should have addressed the specifics of the case more accurately. It should have made it clear that regardless of whether the over-broad rule preventing any communication with any family member is constitutional, in this case, O'Leary could reasonable forsee that the victim would see the threat (which he helpfully addressed in the second person). It violates more established laws against making terroristic threats.

  46. Kid Handsome says

    Is this really legally a threat. It certainly doesn't rise to the level of assault, because of all the "ifs" that are contained in the statement. Sure it is a pretty despicable statement, but it is conditioned on the partner acting in a certain way.

    If I were to tell someone, "If you come to my house, I'll kill you", that is a threat in a general sense, but I did not think that such a threat rises to the level of criminality because it is hypothetical and not iminent. Am I wrong about this?

  47. Dictatortot says

    If "threat" is legally defined as something sent to the intended target, the prosecution might not have a slam-dunk. But is that really the only grounds on which O'Leary could be in trouble? IANAL, but I had always assumed that if I published a credible, obviously non-rhetorical threat to commit a violent crime against a particular person, I'd be in some kind of legal hot water–whether or not I sent it to the would-be target. Are there some grounds on which prosecuting the defendant would've been more obviously valid?

  48. Michael says

    To me the obvious giveaway here is the tone. Maybe I'm interpreting too broadly but it seems to me right from the outset he intended her to read this. He drifts into addressing the partner directly as "you" by the second, well, I guess you can call it a sentence. Couple that with the fact that he's making pretty explicit references to violence, and I'm completely cool with this being treated as a legitimate threat aimed at a person.

  49. Jules says

    I think the operative question is, does he actually mean what he says? Does a threatener have to really make a reasonable effort to make sure the subject gets it before we actually consider it real? What if the cousin unfriended Timothy and never saw the threat, and the subject somehow unknowingly prompted the threatened assault? Could he only be prosecuted for assault and not the threat, as it didn't reach his intended target? Or does it just add to the degree of assault?

  50. Anony Mouse says


    1) What if this was written as a Letter to the Editor in a local newspaper instead of on Facebook? I think that's the best meatspace analogy to a Facebook post.

    2) Would it then hinge on if Michael had a subscription? If Timothy knew Michael had a subscription? Or would it require that Timothy had purchased a subscription for Michael?

    3) Is timing a factor here? I have family members on my friends list that I added in a crush of requests when I first singed up however many years ago. Would it count as sending it to Michael if the friend request had been five years ago? What if the post was made immediately after Michael accepted to request? Would that make it seem more like Timothy had secific intent for Michael to see it?

  51. David Schwartz says

    @Kid Handsome: A threat can be a true threat, even if conditional, if the condition is something under the control of the person threatened. "If you don't give me $100, I'll shoot you" can be a true threat even though the violence can be avoided by the recipient simply making the payment.