Threat Against Gay Relative and Her Partner Posted on Facebook Page is Felony in Florida

On March 18, the First District Court of Appeal of Florida upheld the conviction of Timothy Ryan O’Leary under a Florida statute making it a felony to send a communication threatening to kill or do serious bodily harm to a person, finding that the statute applied to a threat he posted on his home page against a lesbian relative and her partner.  O’Leary, who pled no-contest after the Duval County Circuit Court refused to dismiss the charges, was sentenced to ten years in prison followed by five years of probation (reduced to two in response to a post-trial motion).  In upholding the trial court’s refusal to dismiss the case, the court of appeal further developed Florida criminal law in relation to social media.  O’Leary v. State, 2013 Westlaw 1091690 (Fla.App., 1st Dist.).

According to the opinion for the Court of Appeal by Judge William A. Van Nortwick, Jr., O’Leary posted the following message on his Facebook page:  “In pertinent part, the posting identified the relative and her partner by name and stated that ‘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, one of his Facebook friends, saw the message and showed it to his uncle, who then informed the victims about the posting. 

O’Leary was charged with two counts of violating Section 836.10, Florida Statutes, which says that “sending” such a threat to somebody is a felony.  O’Leary moved to dismiss the charges, arguing that posting something on his Facebook page does not constitute “sending” it to anybody.  In the absence of any similar prior case, the court had to determine whether the statute would apply to a posting on social media that was not specifically directed to the victims of the threat. 

Judge  Van Nortwick summarized the ruling by trial judge Adrian G. Soud, who found that the statute applied on two grounds.  “First, the trial court noted that, at the time Michael viewed the posting, it was accessible by any member of the public who wanted to view appellant’s Facebook page.  Second, the trial court found that, even if it considered the Facebook posting to have been sent only to Michael, the facts still presented a prima facie violation of the statute.  The trial court observed that the posting was an electronic communication, sent to Michael (the recipient), which threatened to kill or do serious bodily harm to a member of the recipient’s family.”

The court of appeal cited a prior decision, State v. Wise, that established a three-part test to analyze charges under this statute, holding that it is violated when “(1) a person writes or composes a threat to kill or do bodily injury; (2) the person sends or procures the sending of that communication to another person; and (3) the threat is to the recipient of the communication or a member of his family.”  The court noted that the statute as originally enacted had been amended specifically to apply to “electronic communication.”  Prior cases involved threats communicated by snail mail.

Judge Van Nortwick said that apparently no prior Florida decision has considered precisely the question presented by what O’Leary did, but “the existing Florida case law defining ‘sending’ under the statute is applicable to the instant appeal” since the statute includes “electronic communication.”  “Here,” he wrote, “appellant composed a threat to kill or do serious bodily injury to the victims.  Consequently, resolution of this appeal turns on the question of whether appellant ‘sent’ the threatening message by posting it on his personal Facebook page.”

O’Leary argued that although he had “published” the message, he had not “sent” it to anybody specifically, as he hadn’t asked anybody to view it and hadn’t directed it to any specific person.  “However,” wrote the judge, “a common sense review of the facts suggests that appellant has done more than he contends.  When a person composes a statement of thought, and then displays the composition in such a way that someone else can see it, that person has completed the first step in the Wise court’s definition of ‘sending.’  When the threatened individual, or a family member of the threatened individual, views and receives the thoughts made available by the composer, the second step in the Wise definition is completed.  At that point, the statement is ‘sent’ for purposes of Section 836.10.  Furthermore, Internet technologies ‘generally do not involve communications sent directly to another. Rather, communications are posted for the whole world to see, or, in a closed network for a particular community to see, such as a community of ‘Facebook friends,'” citing a law review article about “cyber-victimization” by Jacqueline D. Lipton.  (See 26 Berkeley Tech. L.J. 1103 [2011].)

Since O’Leary had requested his cousin Michael to be his “friend” on Facebook, anything he posted on his Facebook page he presumably wished to communicate to his “friends,” including Michael.  “Given the mission of Facebook,” wrote the judge, “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.”  Thus, the violation of the statute was complete, because the threat had been sent to Michael, and it concerned a relative of Michael.

Thus, the court affirmed Circuit Judge Soud’s denial of O’Leary’s motion to dismiss the charge, O’Leary’s “no contest” plea stands, and so does the prison sentence.

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