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
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