By:  Timothy P. Flynn

Last December, on the same day of the Sandy Hook massacre in Connecticut, a high school sophomore in Wilmington, OH exercised his right to free speech along with some incredibly poor judgment and posted the following on his Facebook status:

Kids were shot. Who cares?  Dead kids are dead kids.  Murder is a good thing. This is a serious status, I really think murder is a good thing.  It doesn't matter who is killed, as long as there is killing.  I have been saying for years now that there needs to be another mass murder, I have said this too (sic) many people.  The fact they were just kids makes me laugh.  I'd have done this job myself if I could have. All forms of life are insignificant.  Doesn't matter if they die today, tomorrow, or in 30 years. They are going to die.  I may as well help them out.

Wow!  While the group of people that would agree with such abhorrent commentary is a minute psychotic fringe, the group of people that would support the student's right to spout such venom is much larger.  In the law enforcement community, however, not so much.

Understandably, this young student's problems began shortly after he posted this status, starting with his arrest and detention.  He was charged with violating Ohio's "menacing" and "inducing panic" statutes.

At the student's adjudicatory hearing last January, the principal of Wilmington High School testified that, in light of the events of Sandy Hook that same day, he considered the Facebook post to be a threat, especially in the context of his duty to protect 900 students at his school.  On the basis of this and other evidence [the student, according to detectives, showed zero remorse and seemed not to care about the proceedings against him] the juvenile was convicted.

On appeal, the juvenile asserted that his conviction was based on insufficient evidence to the extent that his words did not constitute a specific threat and he did not name an intended target.  The Ohio appellate court rejected this assertion and affirmed his adjudication as a delinquent last week, holding the criminalized conduct of the menacing statute is much broader and includes such generalized "threats" within its scope.

The Ohio appellate opinion provided the following rationale:

The reach of [the menacing statute] is not so narrow as to be restricted only to conduct constituting an overt threat as P.T. [the Defendant] suggests.  Rather, the statute proscribes a much broader spectrum of behavior by criminalizing any conduct engaged in by a person knowing that such conduct would cause another to believe the offender will cause the other person, or the other’s family, physical harm.  In the present case, P.T. posted on Facebook—knowing that it is a website readily accessible to many individuals living in the Wilmington area—endorsing the events that occurred at Sandy Hook and stating that if he had the means to accomplish such a shooting, he would have "done the job" himself. Although the posts were not made to or about any particular person, it was reasonable to believe that the posts would be viewed and conveyed through Facebook to individuals associated with the Wilmington school district, where P.T. attended school.

Interestingly, the opinion does not indicate whether the student, through his appellate attorneys, raised a free speech defense under the First Amendment.  Also, the opinion is wholly silent as to a First Amendment analysis.

This case could have been the digital version of shouting "fire" in a crowded theater.  Apparently, that did not matter in this Ohio case which focused solely on whether the threat was real.

A close look at the evidence summarized by the appellate court indicates that it was not a credible or real threat.  So where does that leave Ohioans, hunched over their computers typing away at some loathsome post for which they can be punished?  Where does this case leave the First Amendment?

Post Script - Here's the other side of this coin.  A Florida middle school girl jumped to her death as this post was being composed yesterday, apparently distraught from a year of constant bullying by her peers.  Here is a link to the story.  Most of the bullying took place on social media sites where the bullies asked the young girl why she was still alive and to just go kill herself.  Florida has anti-bullying statutes on the books, and the bullies have First Amendment rights.  We here at the Law Blogger have to ask: just where do you draw the line?

Post Post Script - Just days after this post was published, a federal appeals panel from the 4th Circuit held that clicking "like" on Facebook was a form of protected free speech under the first amendment.  Here is the WSJ link to a post detailing the ruling.

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