Facebook and Free Speech


Comments on a Facebook thread could mean jail time for one Texas teenager, he maintains though that is was simply free speech. After he left some disturbing comments on a Facebook thread the police were notified and he was subsequently arrested. Justin Carter was held in jail for five months before the story made international news and an anonymous donor posted his bail. The question then became at what point do comments on Facebook become a serious crime. Carter maintains that his comments were meant only sarcastically in response to someone else on a gaming thread.

Carter’s attorney, Don Flannery, working the case pro-bono said that this is more of a free speech issue. Because Carter said that he could shoot up a kindergarten and because he resides near an elementary school he is being charged with a third-degree terroristic threat. If he is convicted it could mean up to 10 years in prison. Flannery stated in an interview that one of the important facts of the case is the police have yet to see the full conversation, only a screen shot of Carter’s response. He also pointed out that the way Carter worded his response was important because it implied sarcasm.

Is Facebook protected by free speech though? In much the same way that you cannot yell fire in a crowded building, writing about shooting someone, or shooting up a school is generally not considered protected speech. The First Amendment Center points out that it was Justice Oliver Wendell Holmes Jr. who first used the metaphor about yelling fire, in writings Holmes stated “The question in every case is whether the words used are used in circumstances and are of such a nature as to create a clear and present danger.”

Did Carters words create a clear and present danger to the children who attended school near his house? Flannery argues that they did not, and that the police cannot prove that they did because they do not have the full conversation. He maintains that his client was simply making a quip, or as the Dallas Observer put it “a duel between dorks.” Flannery states unequivocally that his client made a comment that was not malicious in nature but rather sarcastic.

Flannery’s case is also built upon the fact that the police found no weapons or bomb making material in the Carter house. The family maintains their shock at how police handled the investigation. Carter’s Mom said that she thought they would read the conversation, talk to her son, and worse case he would be charged with a misdemeanor.

Business Insider suggests that without reading the entire conversation it is entirely likely that Carter was provoked. Furthermore, the article argues, that it is entirely possible Carter was just writing a messed-up joke. In other cases, like one in 2009, judges have ruled that Facebook likes are protected free-speech. Flannery believes like those older cases his clients comments were protected free speech and he shouldn’t be charged with a crime.

By Rachel Woodruff

News OK
Business Insider
The First Amendment Center

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