Thanks to the Google School of Law, people seem to think that the First Amendment protection on free speech allows them to say any nasty thing they want. It doesn't.
Ebony Dickens, of Atlanta, Georgia, learned that the hard way after she posted a noxious rant on Facebook calling for black people to "rise up and shoot at every white cop in the nation starting NOW." Her rant goes on, "Might kill at least fifteen tomorrow. I'm plotting now." She thinks she's bullet proof, and writes, "Freedom of speech tho. So when you can absolutely show me in the 1st amendment where it explicitly says you can't say 'kill all cops,' then I'll delete my status."
Well, she deleted her whole Facebook account hours before local police, FBI, DHS, and New York Police arrested her and charged her with disseminating information related to terrorist acts. More charges may come later.
First Amendment Protection
The First Amendment protection on free speech is not absolute. Fighting words, obscenity, child pornography, misleading commercial speech, cyberbullying, and true threats are not protected.
For example, yelling fire in a crowded theater is not protected. Saying that Nutella is a healthy part of a balance breakfast, when there is no proof, is not protected. Saying someone has a venereal disease when, in fact, they don't is not protected.
Dickens' speech will not be protected under the First Amendment if the court considers it a true threat.
Not all threats are unprotected. Hyperbole or joke threats are protected free speech.
Only true threats are excluded from First Amendment protection. A true threat is a threat "that a reasonable person would interpret as a real and serious communication of an intent to inflict harm." To make the issue more complicated, there is disagreement among the courts on whether or not the speaker has to actually intend the speech to be a threat, or is it enough that a reasonable person saying those words would intend it to be a threat to be considered a true threat.
This question is currently before the Supreme Court in the case of Elonis v. United States. Arguments were heard last December, but the justices have yet to issue a ruling.
The outcome of Elonis v. United States may affect Dickens' case. Did she intend her speech to be a real threat against the police? Would a reasonable person listening to the speech think that Dickens' really intended to kill the police?
When tempers are high, and frustration boils, think before you post. Your speech may not be protected by the First Amendment.
- Woman charged with threatening police has legal degree (USA Today)
- Sarcastic Facebook Threat Lands Teen in Jail (FindLaw's Blotter)
- Man Ordered to Post Facebook Apologies to Wife to Avoid Jail (FindLaw's Blotter)
- Man Arrested for Post-Zimmerman Facebook 'Threat' (FindLaw's Blotter)