Cyber harassment and the use of Facebook, Snapchat, Instagram, and email

State v. Carroll, New Jersey Appellate Division decision approved for publication November 8, 2018

Can I be charged with harassment or cyber harassment for posting a comment on Facebook with no specific target as a possible victim.  Also this is an appeal from a initial determination of detention of the defendant entered by the Superior Court judge at the time of a detention hearing.

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

The bigger question is whether the Facebook posts were a violation of New Jersey criminal code 2C: 33–4.1 A2 and whether calling a Facebook post a criminal harassment is a First Amendment infringement on the United States Constitution.

In this case that defendant was charged with cyber harassment. The definition of harassment is posting lewd indecent or obscene statement via any type of computer publication that could be considered communications and or threats of force by social media.

There is also a question of whether the defendant’s Facebook posts should be considered protected speech under the First Amendment of the United States Constitution. Remember, in order for the court to Order detention of a defendant at the detaining hearing, the State has to establish probable cause that a defendant committed a predicate act, violation of the cyber harassment statute.  However if the post is part of the defendant’s first amendment rights, then there can be no criminal predicate act and the defendant must be release and the charges dismissed.  Remember “to demonstrate probable cause, the state my show the police had a well grounded suspicion that a crime had been committed and that the defendant had committed same. The state need not produce more than mere evidence of suspicion guilt but less than the amount of evidence needed for a conviction at trial. Remember probable cause requires only a probability or substantial chance the criminal activity may have taken place, not an actual showing of such activity.”  In this case that question is whether the Facebook post can be considered evidence of such criminality.  In addition there is a question of whether the state has establish probable cause at all given the fact that the state failed to produce evidence beyond the Facebook post itself.

One of the key facts in this case is that there is no allegations that the posts were communicated to a specific person with any specific intent. These were merely Facebook post that could be protected by the First Amendment. As a matter of law, a person is guilty of fourth degree cyber harassment if, “ while making a communication in an online capacity via electronically device or through social network site with the purpose to harass another, the person knowingly sends, post, comments, requests, suggest or proposes any lewd, indecent, obscene,  material to or about a person with the intent to emotionally harm a reasonable person or place a reasonable person in fear of physical or emotional harm by this person.”

The court recognize that the Facebook posts at issue were actually  course and insulting but not lewd, indecent nor obscene materials. The court found there was not violation of law, and actually no probable cause of any criminal activity. As a result, the defendant should be released and the harassement charges dismissed.

The court then turned to the witness tampering-retaliation charge, which is defined as harming another buyer an unlawful act with purpose to retaliate for on account of the services another as a witness or informant. 2C:28-5(b). They court also rule that the state failed to prove by a preponderance of the evidence standard at the probable cause hearing that this defendant performed a retaliatory act that was unlawful and with purpose.The court reiterated that the state was required to prove the defendant posted the information on Facebook which was an invitation for terroristic threat. The definition of the terroristic threat is to make a communication to put another in fear of their own safety word disregarding a risk to cause her in a reckless manner pursuant to NJ SA 2C:13-3(a).

The overall issue was the Facebook posts must not be protected First Amendment speech. Remember this court said the following , “the First Amendment protects offensive discourse, hateful ideas and crude language because freedom of expression needs breathing room and in the long run lead to a more enlightened society”. The state is not able to criminalize protected  speech because it espouses ideas with which the state disagrees. The state is limited in its ability to govern speech only to those circumstances where a “true threat or the advocacy to incite imminent lawless action is to follow”  A true threat also include statement where this speaker means to communicate a serious expression of intent to connect an unlawful act or to conduct violence to a particular person or group of individuals. The First Amendment will not protect those types of true and actual threats as well as those communications of violence delivered with the intention to engender hear from the possibility that violence or violence will follow.

Nevertheless, hyperbole vehement, caustic, unpleasant sharpest tacks, abusive, and inexact speech are all protected communication by the First Amendment. Remember the crux to unprotected and constitutionally unacceptable speech centers around the speaker’s intent to communicate a purposeful and direct threat or intention to inflict harm. For example First Amendment protected protesters are not protected when pushed by a fellow protester screaming get the ‘cop get, the cop’.  They will be arrested and convicted of inciting the imminent response or threat of violence from others.

So the larger question is what has been posted on Facebook or Twitter, Instagram, Snapchat and how is it going to affect you as the publisher of that material? This is the case to use to determine if the charges against you have viability. Please call me to discuss you were charged with cyber harassment or cyber bullying criminal charge anywhere in the state of New Jersey.

Jeffrey S. Hark, Esq.
609-471-1959. Cell
856-354-0050 Office