Crowell & Moring

We commonly see news stories about law enforcement using social media to investigate, arrest or prosecute criminal defendants. Some of these cases are starting to raise interesting constitutional issues. One such case relates to Cameron D’Ambrosio, a high school senior who was arrested last month for “communicating terrorist threats” through music lyrics that were posted to his Facebook page. As I told Michelle Bowman of Lawyers.com, “D’Ambrosio’s case is an example of the new legal issues that the recent proliferation of social media use is bringing to the attention of courts and the public.”

The case raises novel First Amendment issues that will likely be presented to courts with frequency given the rising trend in the government’s use of social media in investigations and as evidence at trial. In instances like D’Ambrosio’s, where the alleged threat consists of music lyrics posted to a social media site, the author’s intended meaning can easily be misunderstood. As I told Ms. Bowman, “Thoughts, feelings or even music lyrics that, in the past, were kept privately in journals are now shared more frequently with a dramatically larger number of people who may interpret them literally even if that is not the author’s intent. … The extremely broad uses of social media make it harder for readers, law enforcement and courts to determine the author’s intent, which is a critical distinction under laws like the one D’Ambrosio is charged with breaking.”

This week, the Illinois Supreme Court decided that it would not hear an appeal by prosecutors after an Illinois appellate court threw out the conviction of a Southern Illinois University student who was accused of making violent threats in a hand-written note found in his car. The student’s attorneys argued that the note was nothing more than hand-written rap lyrics, even though they referenced the Virginia Tech shooting. The court’s decision was primarily based on the fact that there was no evidence that the student actively tried to send the note to anyone.

But, using social media to communicate thoughts or music lyrics fosters the presumption that remarks like D’Ambrosio’s are a threat because they are communicated to others. This in part is what makes social media cases different from—and more challenging to defend—than cases involving private, unshared notes, such as with the college student described above. Because comments made publicly on social media can be shared with a wider audience than just the author’s friends and family, they can take new and unintended meanings. That suggests that any First Amendment analysis of alleged threats made via social media will need to consider the means of communication. In contrast to this ongoing trend in the United States regarding social media users being charged for comments interpreted as threats, authorities have taken a more aggressive approach in the United Kingdom, where social media users are being charged with crimes based on social media posts resulting from the recent Woolwich attacks that, if made in the United States, would likely have been protected by the First Amendment.