This is a post by Jonathan Rogers. Jon is a licensed attorney in California, with a focus on technology and entertainment law. You can reach him by email at jon@jonarogers.com or follow him on Twitter at @jonarogers.
Holcomb v. Com., — S.E.2d —, 2011 WL 2183100 (Va.App., Jun 07, 2011)
Appellant challenged his conviction over posts he made to MySpace on his profile page, arguing that they did not constitute the knowing communications of a threat. He argued that MySpace posts were not the type of communication contemplated by the statute, and his postings did not constitute a threat. Appellant posted violent original lyrics which were clearly about his child’s mother.
Appellant had been convicted under a provision of Virginia law that provides:
Code § 18.2–60(A)(1):
Any person who knowingly communicates, in a writing, including an electronically transmitted communication producing a visual or electronic message, a threat to kill or do bodily injury to a person, regarding that person or any member of his family, and the threat places such person in reasonable apprehension of death or bodily injury to himself or his family member, is guilty of a Class 6 felony.
Appellant argued that he did not knowingly communicate the posts within the meaning of the statute because he posted them through his profile, which was available for anyone to view, as opposed to a communication aimed directly at the victim. The court found that there was no requirement that a threat be communicated directly to the intended victim. It instead focused on the fact that an “electronically transmitted communication” produced a “visual or electronic message” that could be viewed by anyone accessing the MySpace profile. It was enough that the victim was able to identify herself based on the references in his posts and that the appellant knew the victim had access to the profile. In fact, the court found, he knew she had viewed it previously.
Appellant’s second argument was that the posts were not threats under the statute. He argued they were lyrics which he had a history of writing and posting on his profile. The court disagreed, finding that because of specific references to the victim, and the unusual subject matter of the lyrics, the post contained statements that would place the victim in “reasonable apprehension of death or bodily injury.” The court pointed to actions taken by the victim, including moving in with her parents, and her testimony that she felt scared after seeing the postings.
The court found the online postings to MySpace where threats which placed apprehension in the victim. So the court upheld the convictions.
June 15, 2011
Just had a discussion about this case today at magistrate regional conference. It's an interesting new trend, and because it's one that (in my experience) tends to be written almost exclusively on complaints from citizens to magistrates (at least for the time being), one that we deal fairly frequently. And one that I'm generally not inclined to issue, for a whole host of reasons.
First, and most important: the construction of what actually constitutes a "threat" in VA is much narrower than one might think. They have to be quite specific – as in "I'm coming to kick your ass" and not "i'm gonna get you" or conditional. The standard for threats is NOT whether they put a person in fear, despite what the court seems to think. I'm curious to know what the actual threats in this case were, because it's very rare that complaints I see or hear about qualify.
The other problems I see with this case are typical ones associated with life in the digital age: how do we know this guy wrote the post? How did she see it? To whom was it intended to be communicated? I'd argue that the statute requires direct communication to the threatened person.
If it had been me, I probably wouldn't have issued the warrant in the first place – and due to some other statutory changes this year, I suspect come July 1 we'll see a reduction in the number of "threats in writing" cases. I, for one, will be glad if that happens, because the parade of angry exes wanting warrants for threatening Facebook posts and text messages makes the whole thing seem rather silly.
June 15, 2011
Hey Patrick,
Thanks for commenting. I figured you might be interested in this one.
I am curious how the court will deal with online statements in years to come. I think we have all seen the terrible statements some internet trolls make. There has to be a way to judge serious comments that do require action, from the bravado that anonymity seems to bring out in people.
June 18, 2011
Without further detail, (and in a week where Tennessee has passed a statute against “offensive images” being posted online), this seems to have swung a bit to the over broad side.
The plaintiffs specific actions (moving in with her parents) versus some objective standard (“reasonable person”) are to be used as evidence of the “threat?” That’s patently absurd– it opens the door (yet wider) for the “pleading” party to perform theatrics to influence future, anticipated legal action.