Can Posting a Video on Snap Chat be considered a Written Threat?

May 6, 2022 Don Pumphrey, Jr. Criminal Defense, Juvenile Offenses, Sex Crimes, Violent Crimes Social Share

Teenagers are often categorized as emotional, dramatic, or even illogical risk-takers. Studies show that the reason they are prone to making these types of choices is simply due to the normal development of their brain.

A story by Amanda Leigh Mascarelli, explains how the constant tug of war that the teenage brain experiences is logical when considering its purpose. Teenagers are prone to serious risk-taking as a matter of evolution. It is in these years that a normally healthy teenager is supposed to be leaving “behind the protection provided by their parents and start exploring their environment.”

So, what happens when an emotionally charged teenager mixes their passion-driven ideas with social media? Well, things can get dangerous. Ever since the State of Florida changed the way they interpret threats; more and more cases have shown up with young adults being charged with a felony for posting threats on social media.

Can a Snapchat story or an Instagram video infringe on other people’s rights? How far can a young adult’s right to free speech allow them to make emotional or dramatic statements? We will delve into this and more in this blog!

The Story of Colin Boyer

Colin Boyer, an 18-year-old student at Father Lopez High School in Daytona Beach was arrested by the Ormond Beach Police after they learned that he posted some threatening videos on Snapchat while playing “Fortnite” on his Xbox.

According to Colin Boyer’s Charging Affidavit, he was charged on February 07, 2022, with a Written or Electronic threat to Kill or Injure. The Affidavit states that at 2:25 am, Boyer’s High School received an email with information about two short video clips where Boyer is making vague threats to conduct a mass shooting at his High School. Police quickly investigated and responded to the threat.

Boyer claims in his statement to the police that he was having a “bad day” when he made those videos and that he never intended to carry out his threat. He further commented how he was upset at a school administrator, and it seems plausible that he was just venting to his friends while he played video games. Nonetheless, the law takes all of these statements very seriously, especially since there have been many real shootings taking place in recent years. The law doesn’t make exceptions for a teenager who is unable to pull out of his bad mood, or who knows better but still goes and says or posts things that can cause other people to feel threatened.

In a statement obtained by the Ormond Beach Observer, the head of the Ormond Beach Police Department, Jesse Godfrey said “I am very proud of the person(s) who came forward and reported this incident… the suspect, in this case, was quickly identified, contacted, interviewed and appropriately charged in this situation.”

Boyer’s court record, Case #2022 300553 CFDB, shows he was given a $5,000 Bail and has plead not guilty to the charge.

The Clay County Snapchat Shooting Threat

A story reported by News 4 Jax shows the danger and seriousness posed by even minors who make threats on social media. On March 9, 20221, a 16-year-old student made a vague threat towards schools in Clay and Duval County, Florida through his Snapchat story. His message read “If you live in clay county or. Duval County be safe ..it’s an. Active shooter coming to all y’all schools”

This simple message led 22% of high school students in Clay County to not show up to school because of the threat. On June 24, 2021, the police identified the identity of the student who made the threat and warned of the impact and dangers posed by such messages on social media.

This story is a great example to highlight how even a message without much substantiated evidence of the threat is currently being taken seriously by the police. This is due to the many active shootings that have happened in Florida. To read more about a developing story on school shooter Nikolas Cruz, you can go to our blog here.

What is the Written Crimes Law?

Florida has recently passed a new bill that expands upon electronic threats. Under Fla. Stat. Section 863.10 indirect threats through social media posts, videos, or stories are now criminally sanctioned. A young adult who threatens to kill or do bodily harm to another person, or who threatens to conduct a mass shooting, on their Snapchat story could very well lead to that person’s arrest.

Under Florida law, it is a crime for any person to send, post, or transmit, whether on paper, electronically, or in any other manner, something that includes:

1. a threat to kill or do bodily harm to another person; or
2. a threat to conduct a mass shooting or act of terrorism.

This crime is classified as a second-degree felony and is punishable by up to fifteen years in prison or a fine not to exceed $10,000. To read more about second-degree felonies visit our blog here or you can visit our blog about written threats here.

But the Law says Written Crimes, and all I did was post a video/photo.

The law has recently changed to include most modern forms of communications. Under the newly adopted law, the legislature amended the law to better encompass what is an electronic record. The law now states:

(1) As used in this section, the term “electronic record” means any record created, modified, archived, received, or distributed electronically which contains any combination of text, graphics, video, audio, or pictorial represented in digital form, but does not include a telephone call.

This means that even a video or photo that conveys a threat to kill, harm, or conduct a mass shooting could be seen as violating the law.

So, What is a Threat?

Well, it depends on the specific facts of the case. The court in Puy v. State found that because the legislation did not provide a definition for “threat” in the law, “threat” should “be given its plain meaning which would be measured by common understanding and practice.” The court goes on to define “threat” by the definition given in Merriam-Webster online dictionary as “an expression of intention to inflict evil, injury, or damage.” Phrased in a simpler way, a threat is a communication intended to express harm.

David Puy, a former high school student, posted a Snapchat photo with the caption “On my way! School shooter.” A student at Puy’s former high school saw the captioned photo and then showed it to a teacher. This led to the investigation and arrest of Puy, who ended up pleading no contest to the charges. During his appeal, the court in Puy, cites to Smith v. State to further interpret what is a threat under the law. In Smith, the court interpreted a “threat” to depend on whether the communication was “sufficient to cause alarm in reasonable persons.”

The court in Puy further explains that ultimately, whether a communication is a threat under the law is a matter to be decided by the jury. This means that the court will be looking at what they call, the “totality of the circumstances” in determining whether the communication was intended as a threat.

What about my Right to Free Speech?

Under Wyche v. State, the Florida Supreme Court has found that laws created in a way that applies to conduct protected by the First amendment are unconstitutionally overbroad.  Unfortunately, Florida courts have held that threats to commit bodily injury, kill, or commit acts of terrorism or a mass shooting are not protected forms of speech under the First Amendment to the United States Constitution.

In Smith v. State, the same case cited by Puy v. State, the court found that the law against written threats is justified by the right of all people in the state to live free of unexpected and unwarranted fear or harm. The court further held that it’s important to distinguish between “true threats from crude hyperbole,” and many courts continue to employ this analysis when interpreting this law. To learn more about the crime of written threats visit our blog here.

In Saidi v. State, the court found that threats to injure or kill are not constitutionally protected. This means that because threats to injure or kill are not constitutionally protected, a person’s First Amendment right is not violated by the legislature’s prohibition against written or electronic threats under Section 836.10.

So What is the Difference Between Crude Hyperbole and a True Threat?

More recently, the court in Romero v. State, explained how the Florida Supreme Court has consistently reaffirmed the State’s right to regulate true threats. The court said that statements are “true threats” when they are done with the necessary intent or knowledge of wrongdoing. They went on to state that it is necessary to include this “blameworthy in mind” provision to prevent prosecution for “remarks made in jest or mere puffery, political hyperbole, or involuntary communications.”  

This means that for the crime of written threats, there is a requirement of willfulness. The Florida Supreme Court in Polite v. State found that at a minimum, willful means intentional or deliberate. Willfulness in this context could be said to mean that the offending party has knowledge of the “wrongness” of what they are doing before they do it. It’s important to understand that this requirement is met when the person transmits a communication as a threat or with knowledge that it could be viewed as a threat. The courts look to (1) what a reasonable person, to whom the statement is directed, would think of the statement, and (2) how reasonably likely they would be to interpret it as a “serious expression of an intention to inflict bodily injury or take the life of an individual” (the court in Romero v. State, used this analysis when interpreting Elonis v. United States).

When interpreting a Snapchat video, the court should look at the specific facts of the posting. If the person posting a video clearly intended it to a group of friends who will understand it to be a joke or an exaggeration used for emphasis or effect, the courts should find this to be a form of protected speech. If the persons viewing the Snapchat post interpret the video to be a threat however, the poster could have violated the law.  

What kind of Posts are Not Considered Protected Speech?

Basically, Florida’s Constitution guarantees residents of the State the same protections given under the First Amendment. Meaning that the government may only place limited restrictions on Free Speech conducted in a Public Forum. While traditionally, Social Media posts don’t qualify as public forums, under limited circumstances the courts have found them to be, such as the official Twitter page operated by then President Donald Trump.

While a private person’s social media account is not a public forum for purposes of the first amendment, the courts in Florida have found certain instances where restriction is appropriate. The following list by The Florida Bar showcases how throughout the years, the U.S. Supreme Court has methodically restricted more and more of what we consider to be free speech:

• True Threats,
  • Includes Harassment purposely done to irritate or torment someone.
• Fighting Words,
• Calls to illegal Action,
• Obscenity,
• Child Pornography,
• Defamation,
• Perjury,
• Plagiarism,
• Solicitation to commit a crime, and
•  

It’s important to understand that under the law, social media platforms are more akin to a traditional newspaper, and as such are able to regulate the content that is posted on their platform. They can dictate what they want or don’t want their users to post or view.

What is considered Free Speech then?

While this article may seem like you can’t post anything online without getting into trouble, don’t fret, as that’s not the case. According to the Administrative Office of the U.S. Courts, Freedom of Speech would protect:

• Posts using offensive words or phrases to convey a political message,
• Post used as a form of advertising for commercial products or professional services
  • With some restriction by the State, such as misleading or unlawful commercial speech.
• Posts that engage in symbolic speech
  • Burning the flag as a form of protest.

The First District Court of Appeals recently held that posts that target public officials are still held against a higher standard in defamation suits. In Mastandrea v. Snow, the court found that unless the Councilman could prove that his constituents social media post was done with actual malice, he couldn’t recover defamation damages. Had the post been done against someone who is not consider a public figure, the plaintiff would only need to prove the lower standard of negligence. Actual Malice requires that the statements are “false or … made with a reckless disregard for the truth.” While Negligency only requires that the person employ a degree of care inappropriate for the circumstances which results in injury to another person.

Finding a Defense Attorney in Tallahassee, Florida

If you or a loved one have been accused of a crime, it is imperative that you prioritize reaching out to a skilled defense attorney in your area. It’s important to understand that even a teenager’s emotional video is being taken seriously by authorities and could result in criminal repercussions. Receiving quality legal advice can make the difference between facing severe penalties such as expensive fines and jail time or walking away free. Going to court can be a stressful situation, so make sure you have a strong legal defense team on your side. Don Pumphrey and his legal team at Pumphrey Law Firm have experience representing clients all over Florida for various crimes. They are prepared to stand in your corner and fight for your freedom. For a free consultation call (850) 681-7777 or leave an online message today.

Written by Jesus Lozano

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