Can you be charged with a felony for posting something stupid on facebook? Absolutely. Take a look:
- A British citizen was arrested and charged with a five year felony in Kyrgyzstan for comparing a local dish to horse genitalia on facebook. Writing that mine workers were lining up for their "special delicacy, the horse's penis," the mine workers rioted. Instead of prison, the British national was deported. http://www.thenational.scot/news/horse-penis-facebook-jibe-could-land-man-jail.11868
- A Florida man posted on Facebook that his United Arab Emirates employers were "backstabbers." When he returned to UAE, he was charged with a five year felony for violating a law that prohibited posting derogatory things about people or organizations. http://theweek.com/speedreads/542773/disparaging-facebook-post-lands-american-man-uae-jail
- In January 2015, Kenya jailed a man who insulted the nation's president on Facebook. http://www.standardmedia.co.ke/ureport/story/2000198065/be-careful-your-facebook-post-may-land-you-in-jail
And the one that takes the cake:
- A man in Thailand is facing up to 37 years in prison on charges that he liked a Facebook page that insulted the king's pet dog. http://myfox8.com/2015/12/17/internet-post-insulting-thai-kings-dog-may-land-man-in-jail/
But these examples are all in foreign countries, right?
It Can't Happen Here
Well, think again.
In recent years, we have witnessed a sharp increase in the use of "terroristic threats" to attack political speech.
- One Pennsylvania man found this out when, angry over Ferguson Missouri and the murder of Eric Garner in New York City he posted on Facebook: "The police brought this on themselves! I say kill them all! Enough is enough." http://www.nbcphiladelphia.com/news/local/Man-Jailed-for-Threatening-Police-on-Facebook-Police-287008051.html The terrorism charges were dismissed, and he pleaded guilty to disorderly conduct / fighting words, even though the fighting words doctrine does not apply.
- Earl Patterson out of Lansing was charged with making a terroristic threat when he took to Facebook in response to two fatal shootings of 32-year-old Matthew Lundy and 17-year-old Deven Guilford in separate incidents in February 2015. Patterson got lucky. Ingham County Circuit Court Judge William Collette ruled that the comments were political speech. http://www.freep.com/story/news/local/michigan/2015/03/12/death-threats-terrorism-charges-michigan/70197290/
Not a single person has ever been charged with making a terroristic threat when the poster has made a statement that is pro-police, no matter how shocking, outrageous, or reprehensible.
Trial attorney Alan Dershowitz once wrote that "Freedom of speech means freedom for those who you despise, and freedom to express the most despicable views. It also means that the government cannot pick and choose which expressions to authorize and which to prevent." But today? The lesson is simple: if you post something out of line that includes any reference to violence that is anti-government, police will drive to your home in armored vehicles, toting grenade launchers and .50-caliber ammunition, descending upon your home accompanied by malicious prosecutors who do not recall ever taking an oath to uphold constitutional rights. This is contrary to the First Amendment, and it shows how the government can quickly abolish fundamental rights through force and violence.
Michigan Takes Social Media Monitoring To New Levels
Michigan has taken social media monitoring to new levels. It is no longer enough to stop Facebook threats and Facebook terrorists. Michigan feels that we need to make the internet a nicer place, along the lines of kindergarten. Under a new law, you cannot post anything to Facebook that might annoy or bother someone else.
Bay County Prosecutor Nancy Borushko is prosecuting Renee Kolka for posting nasty messages on Facebook. According to MLIVE, an unidentified woman complained that Kolka was calling her a "slut" on Facebook. Kolka also posted that "We all know her skanky ways," and called her a "skinny tall coke head." She also warned people "Don't catch an STD" from her. Kolka posted the woman's phone number. http://www.mlive.com/news/bay-city/index.ssf/2016/02/woman_posts_vulgar_statements.html
Fuck the Government
Way back when I was only two years old, the US Supreme Court held that a shirt that said, "Fuck the Draft" could not be banned by the State of California. Cohen v. California, 403 U.S. 15 (1971). Justice Harlan, writing for the majority, stated that the issue was "whether California can excise, as 'offensive conduct', one particular scurrilous epithet from the public discourse, either upon the theory...that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary." The Court held that the states could not. The speech was not likely to cause an incitement to violence, and there was no compelling state interest in banning the word on the basis of public morality. Justice Harlan, citing Justice Brandeis' opinion in Whitney v. California, emphasized that the First Amendment operates to protect the inviolability of the marketplace of ideas imagined by the Founding Fathers. Allowing California to suppress the speech at issue in this case would be destructive to that marketplace.
"To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance", Justice Harlan wrote. "These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength." "[A]bsent a more particularized and compelling reason for its actions", Harlan continued, "the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense." In his opinion Justice Harlan famously wrote "one man's vulgarity is another's lyric."
The Right to Be Rude
I have an absolute right to be rude, and you have an absolute right to be rude. I also have a right to swear, and to post messages on Facebook that reflect my anger. I have the right to criticize the local mayor, a judge, and even the president’s dog, writing all sorts of nasty things about that flea-ridden bitch. I will not allow our government to treat me or you like children, and I will not stand by idly while the government violates another person's right to be loathsome.
The new Michigan law being used to prosecute Kolka basically says that you can't post a message to facebook that 1) might cause someone to communicate with the complaining witness, 2) the poster intends to bother or annoy the complaining witness, 3) some third party actually makes contact with the complaining witness, and 4) the complaining witness is annoyed or bothered. Specifically, the statute states:
750.411s Posting message through electronic medium; prohibitions; penalty; exceptions; definitions.
(1) A person shall not post a message through the use of any medium of communication, including the internet or a computer, computer program, computer system, or computer network, or other electronic medium of communication, without the victim's consent, if all of the following apply:
(a) The person knows or has reason to know that posting the message could cause 2 or more separate noncontinuous acts of unconsented contact with the victim.
(b) Posting the message is intended to cause conduct that would make the victim feel terrorized, frightened, intimidated, threatened, harassed, or molested.
(c) Conduct arising from posting the message would cause a reasonable person to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.
(d) Conduct arising from posting the message causes the victim to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.
I am going intentionally violate this law right now, recalling that Amnesty International used to engage in letter writing campaigns to protest human rights violations. I see this case as a violation of human rights, and I hope that you will join me in protecting the fringes of our society. As Clarence Darrow once wrote, "You can only protect your liberties in this world by protecting the other man's freedom. You can only be free if I am free." I want every person reading this post to reach out to Prosecutor Nancy Borushko and express your outrage. I have uploaded a sample letter here.
By asking you to send a letter to Prosecutor Borushko, I have violated the law. This is a five year felony. I have:
(1) Posted a message through an electronic medium of communication without Prosecutor Borushko's consent.
(a) I have reason to believe that, by asking you to send a letter in protest, this could cause 2 or more people to make unconsented contact with Prosecutor Borushko.
(b) My reason for posting this message is intended to publicly chide and harass Prosecutor Borushko into respecting the 1st Amendment.
(c) I can only imagine that Prosecutor Borushko will feel distressed if enough people support the fundamental right of Freedom of Speech, and that Prosecutor Borushko will feel harassed.
(d) I can only imagine that at a preliminary examination, Prosecutor Borushko will testify that my actions caused her to "suffer emotional distress" and that she felt "harassed."
How Far Does This Go?
I reached out to the MLive reporter, Cole Waterman, asking him why the press wasn't angry about this erosion of civil liberties. I pointed out that his article about Kolka was posted without Kolka's consent. MLive provides a message forum that is specifically designed to allow readers to post comments. Many of those comments were very unflattering. Does it take any stretch of the imagination to think that the story wouldn't generate "unconsented contact" by third parties?
Waterman's response was interesting. He suggested that 1) he was protected because he's in the media, and 2) I should reach out to Kolka to represent her. Now, there is a provision in the law that says "This section does not prohibit constitutionally protected speech or activity," but that's an affirmative defense. Who decides what is constitutionally protected speech, and when is that decided? In court. After a person has been charged. And who in their right mind would risk it, aside from an angry defense attorney or a member of the media who never stopped to think that the law might apply to the press? This is what is known as a slippery slope. Because no one would want to have to willingly hire a defense attorney and risk five years in prison, the chilling effect on free speech is real and tangible.
As to Waterman's other suggestion, that I reach out to Kolka, state bar ethics rules prevent me from soliciting clients. But I found it extremely interesting that Waterman felt that his article should inspire unconsented contact.
William Maze is Criminal Defense Attorney with offices in Detroit, Livonia, and Romulus, Michigan. For further reading on the First Amendment and how it effects our local community, read the recent 6th Circuit Court of Appeals decision in Dearborn v Bible Believers, where a group of Christian evangelists were attacked by teenagers at the Arab International Festival in Dearborn and forced to leave by Wayne County Sheriff's officials. The case very eloquently lays out the case in favor of free speech and its importance to today's society.