Recently, a Martinsville Indiana woman was arrested for making threatening comments on Facebook. Formally, she was charged with intimidation. In Indiana, a person commits the crime of intimidation if he communicates a threat with (1) the intent to cause the threatened person to act, (2) to be placed in fear of retaliation for a lawful act (such as calling the police); or (3) with the intent to cause a building to be evacuated. Ind Code § 35-45-2-1. The crime is a misdemeanor to start, but can increase to various felony levels based on the person threatened (police officers and court employees warrant a D felony); or the means (a threat with a weapon is a C felony).
As reported, in this circumstance the woman used Facebook to communicate the threat, and named names. As in all criminal prosecutions, the state must prove the elements of a crime. Think of the elements like key ingredients in a recipe. If you leave one out of the process, you don’t have the dish you were trying to create. In fact, you probably don’t have anything worthwhile at all. Of course, in the kitchen, you simply start over. If you’re a prosecutor and the jury decides you’ve proven 4 out of the 5 elements, you don’t get to start over. An acquittal is final.
In prosecutions for intimidation via social media, I believe that the “communication” element may be increasingly difficult for the state to meet. Assuming that the posted language is the type that a reasonable person would take as a threat, does posting it on Facebook constitute a communication? If a defendant has 15 Facebook friends, but directs a “threat” at a non-friend – was there really communication? Doesn’t communication require the threatener to deliver the message in some manner to the threatened? Here, the state may have difficulty proving this element.
To illustrate the point, contrast two forms of communication. Suppose I write a threat to my congressman or neighbor or squash opponent on a cocktail napkin and throw it away, and my imaginary victim never sees it. Surely this would be insufficient communication. Now suppose instead that I hire a sky writer, who climbs aboard a DeHavilland DHC-1 Chipmunk and pours all my vitriol across the clear blue Hoosier sky over my hated rival’s house. It’s hard to imagine that this is not sufficient communication. So where does Facebook fit in to the spectrum?
First, Facebook is not entirely public. Or perhaps it would be more accurate to say that the information that I post on Facebook is not entirely public because Facebook’s servers give me some control over who reads it. (At least they let me think I control it.) Assuming he did not “friend” the target of the threat, a defendant in an intimidation case might have a valid defense that the would-be threat could not reasonably be expected to ever reach its target. There are cases in Indiana suggesting that the communication must come from the defendant. Suppose Lenny puts a post on Facebook and says he’s going to “burn down Moe’s bar with Moe in it” knowing that Moe is a virtual Luddite who doesn’t have a Facebook account. But then Carl shows the post to Moe and Moe calls the police, who arrest Lenny. I think that Lenny would have a defense.
Such is social media. Public . . . but not entirely. Communicating . . . but not to everybody. Criminal and civil claims will have to adapt and make elements of modern legal claims correspond in meaningful ways to new media. Of course, there’s one sure fire way to make sure that nobody reads the threat: post it on MySpace.