Press Release: The News Service of Florida
By JIM SAUNDERS
THE NEWS SERVICE OF FLORIDA
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THE CAPITAL, TALLAHASSEE, March 18, 2013.........In a case that offers a glimpse of how social media poses new legal questions, a state appeals court Monday ruled that a man could be prosecuted for posting on Facebook a threat to kill or seriously injure two people.
The 1st District Court of Appeal upheld a Duval County circuit judge's refusal to dismiss a case against Timothy Ryan O'Leary, who posted a profane message that threatened a relative and her lesbian partner. At least part of the message appeared to target the women because of their sexual orientation, with one sentence saying, "I'll tear the concrete up with your face and drag you back to your doorstep,'' according to an excerpt in the ruling.
O'Leary argued that the threats were not sent to the victims because they were only posted on his Facebook page. But a three-judge panel rejected that argument, saying that the posting was available to all of his Facebook "friends."
"Given the mission of Facebook, there is no logical reason to post comments other than to communicate them to other Facebook users,'' the ruling said. "Had appellant (O'Leary) desired to put his thoughts into writing for his own personal contemplation, he could simply have recorded them in a private journal, diary or any other medium that is not accessible by other people."
The Facebook post was seen by a cousin of O'Leary. The cousin showed it to an uncle, who informed the victims about the posting. The appeals-court ruling does not name the victims.
O'Leary, 33, was initially charged in 2011 with two counts of making written threats to kill or do great bodily harm. After the circuit judge refused to dismiss the case, O'Leary pleaded no contest to one of the charges and ultimately was sentenced to 10 years in prison --- but kept the right to continue appealing the denial of the dismissal.
The 1st District Court of Appeal said it could not find any other case in Florida that discussed whether posting a message on Facebook constituted "sending" it under the state law that deals with threats to kill or cause serious injuries.
Judge William Van Nortwick, who wrote the opinion, said the law applies to electronic communication, but the key issue was whether O'Leary sent the threat by posting it on Facebook.
"Appellant contends that he 'sent' nothing because he neither asked anyone to view the posting on his personal Facebook page, nor addressed the posting to anyone, as would be the case with a letter or email,'' wrote Van Nortwick, who was joined in the opinion by judges Joseph Lewis and Ronald Swanson. "However, a common-sense review of the facts suggests that appellant has done much more than he contends."