Think about context when you make that joke on Facebook
Like a lot of people, I’m eagerly awaiting AMC’s version of John le Carré’s masterpiece “The Little Drummer Girl,” set to premiere in the fall. U.S. court precedent shows how easily my enthusiasm could get me into legal jeopardy.
Suppose that I were to decide, in celebration of the event, to post each week on social media one of my favorite lines from the novel. Two or three weeks in, I’d likely come up with this: “Shall we shoot the writer and go home?” What recent history teaches us is that the post might well bring the police to my door.
Last week the U.S. Court of Appeals for the Eighth Circuit reinstated a lawsuit brought by James Ross of Cape Girardeau, Mo., who in January 2015 was arrested and held in jail for several days for a Facebook post that — well, let’s let the court tell the story:
“One of Ross’s Facebook friends posted an image (or meme) that showed a number of different firearms below the title ‘Why I need a gun.’ Above each type of gun was an explanation of what the gun could be used for — e.g., above a shotgun: ‘This one for burglars & home invasions’; above a rifle with a scope: ‘This one for putting food on the table’; and above an assault rifle: ‘This one for self-defense against enemies foreign & domestic, for preservation of freedom & liberty, and to prevent government atrocities.’ … Ross, an advocate in favor of gun control measures, commented on the post: ‘Which one do I need to shoot up a kindergarten?’ Ross then logged off Facebook and went to bed.”
The following day, Ross was arrested at the gas station where he worked. The officers told him they were there about “an internet post,” and he told them that he had intended it as a joke. At the police station, he repeated his explanation, and although several officers who were present said they didn’t think there was a case, he was charged with a crime for violating a Missouri law that bans “threatening to commit a felonious act against any person under circumstances which are likely to cause a reasonable person to fear that such threat may be carried out.”
Ross was held in jail for several days before he was able to raise enough cash to meet his $1,000 bond. Three days later, all charges were dismissed. Two months after that, Ross filed a lawsuit, claiming that the officers had violated his constitutional rights. The trial court granted summary judgment to the defendants, ruling that under the circumstances they were immune from suit. The Eighth Circuit disagreed.
It’s true that we live in an era of heightened vigilance, but cases such as this one illustrate the danger of turning our fears or worries into zero-tolerance enforcement. In context, it’s obvious that Ross’ post was meant as a harsh political joke, a turn of the rhetorical table. The officers should have let the matter go; so should whoever brought the post to their attention in the first place. (The court is intentionally vague on the chain of canardy.) And yet this case is hardly alone.
Law enforcement authorities are duty-bound to investigate when they learn of a threat, and the fact that the threat is on social media doesn’t mean they can assume that it’s a joke. Lots of threats are serious; lots of those arrested belong behind bars. But as the Eighth Circuit reminded us this week when it reinstated Ross’ lawsuit, the investigation should always take context into account.
Each of us, whether we plan to or not, serves as an example for others. A young man in California posted a message on Facebook in 2013: “I’m going to shoot up an elementary school and eat the children’s still beating hearts.” When police arrived, he told them that the post was a joke, and that he knew that someone else “was recently arrested for the same thing.” Nevertheless, he was arrested on felony threatening charges. The juvenile court sentenced him to eight days of incarceration and six months’ probation.
Maybe there were more facts the California court doesn’t tell us. But just to be on the safe side, please don’t quote this column on social media. You could wind up in trouble.