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Are social media threats to COs a cybercrime?

Know your legal options when hate speech or threats are posted on your social feeds

By Terrence P. Dwyer, Esq., C1 Contributor

Today’s COs know times are tense. It is appropriate to review the contours of the First Amendment protection of free speech and explore the limits of that freedom. It is a wise maxim to follow that just because you believe in something or feel like saying something, it is not always appropriate to express it. The wise person in the room is usually the one who listens and assesses what is going on before making a statement. Just because an individual has an opinion does not mean they should always share it.

Social media
Social media has exploded to the point where typical filters, such as community disapproval or castigation, are no longer barriers to people saying whatever is on their mind, no matter how ignorant or unenlightened. In prior columns, I have written about the pitfalls of social media posts for law enforcement. Many workplaces now have social media policies in place for their employees (if they do not, they are behind the times). Unfortunately, some individuals have discovered the hard way that First Amendment protections are not absolute.

This brings me to the topic of threats against corrections officers made on social media by individuals who hate law enforcement. Is this type of speech constitutionally protected? Does an arrest for this type of behavior lead to First Amendment violations? Those were questions recently asked to me by a reporter who was conducting a follow-up to a story about a Connecticut man who made threats against the police on Facebook. The alleged perpetrator, a 34-year-old Norwalk man, posted on his Facebook account that the Dallas shooter was a hero and then actively called for police officers to be killed.

The reporter asked, “Isn’t there a First Amendment protection for this kind of speech?” While the law would classify the comment on the Dallas shooter as protected speech, tasteless but nonetheless protected opinion, the imminent exhortation for others to shoot police officers was not lawful speech. However, my reply was much simpler—how would the reporter feel if this same individual made a similar threat in person to her or one of her colleagues? Would she feel threatened, would her colleagues? Once we established that there would be a clear threat susceptible to police intervention it was an easy road to the fact that similar comments posted on someone’s Facebook page do not grant a protective cloak for otherwise criminal threats made against officers.

In the 1969 case of Brandenburg v. Ohio, the U.S. Supreme Court set out the modern standard for inflammatory speech which was that such speech could not be punished unless it was directed to inciting, and is likely to incite, imminent lawless action. The decision overruled the mere advocacy test previously announced by the 1927 Court in Whitney v. California. Of course, these are the broader constitutional outlines that guide state statutes in regulating forms of expression, since there is clearly no absolute right to say whatever one wants to say (recall the famous example of Justice Oliver Wendell Holmes in Schenk v. United States (1919) that a person cannot yell “Fire!” in a crowded area when there is no such emergency).

Speech can be prohibited to the extent that it is defamatory, obscene, amounts to fighting words or advocates illegal action. Dating back to 1971, Connecticut has had a statute against such threats, section 53a-179a inciting injury to persons or property, which is a Class C felony. The pertinent part of the statute criminalizes conduct that “advocates, encourages, justifies, praises, incites or solicits…any assault upon…the police force of this or any other state or upon any officer or member thereof…” The statute goes on to cover municipal law enforcement agencies, fire departments and any other class or body of persons or individuals. According to the statute, the illegal comments can be made publicly or privately, orally or in writing. This statute has withstood constitutional challenge in the Connecticut state appellate courts and fits squarely within the type of conduct proscribed by Brandenburg v. Ohio. In addition to the inciting injury charge, authorities also charged the perpetrator with the misdemeanor offense of Breach of the Peace (“…threatens to commit any crime against another person or such other person’s property”).

The lesson here is clear, threats are illegal, whether made in person or on social media, and many states have appropriate statutes in place criminalizing such conduct. Threats against law enforcement made on social media sites are not benign, they are serious offenses and must be acted on accordingly. The law does not protect true threats and there is a wide sample of case law at the state and federal level supporting criminal arrests for these offenses. While law enforcement has a duty to protect First Amendment rights, there is no absolute to any right and true threats, even when made against law enforcement, are outside the realm of First Amendment protection.