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First Amendment or First Felony: Social Media and the Freedom of Speech

By: , Posted on: July 11, 2013

Katherine HelenekThrough the use of social media we get the chance to share our thoughts and opinions with friends and acquaintances. The ability to disseminate personal beliefs to the world is literally right at our fingertips. Where exactly is the line drawn regarding what we are constitutionally free to post?

First Amendment of the Constitution of the United States of America:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

With the rulings of previous cases courts have defined what “speech” represents in the First Amendment. Speech is recognized as a form of expression, which can be verbal, non-verbal, visual, or symbolic. In the context of the First Amendment, speech can include a candlelight vigil, a painting, or wearing a symbol on one’s clothes.

It is important to note the First Amendment refers to only congressional action. This means the suppression of the freedom of speech by state or federal governments is prohibited.

Court decisions have also defined exceptions to “the freedom of speech”:

  • Defamation – the publication of a false statement which harms the reputation of another
  • Causing panic – shouting “Fire” in a crowded theater
  • Fighting words – words which can inflict injury or provoke a breach of the peace
  • Incitement to crime – encouraging someone to commit a crime
  • Sedition – the advocacy of unlawful conduct against the government or of overthrowing the government
  • Obscenity – vulgarity (the Supreme Court agreed on a 3-prong test to determine obscenity in 1973)
  • Establishment of religion – combining any state or federal entities with religious principles

In our current technological society social media is used worldwide. Sites we are familiar with in the US include Facebook, Twitter, and LinkedIn. There are many other different social media sites which are popular in other countries as well.

As with many of the exciting new technological discoveries and advancements there will always be people who use them for malicious activities, as opposed to the majority who use them for positive or productive purposes. It seems a common occurrence these days to read headlines about people being charged for making threats on social media.

Recent news stories:

  • Warren County, Tennessee- A twenty-four year old male anonymously posted threats on a Facebook memorial page for a student who passed away in October. “My father has three guns. I’m planning on killing him first and putting him in a dumpster. Then I’m taking the motor and going in fast. I’m gonna kill hopefully at least 200 people before I kill myself.” 3,000 students did not attend classes and police were stationed around the area for a week. The man is being charged with making malicious comments.
  • Camas, Washington- A parent of a rival school (who also happens to be a youth sports coach) posted on Facebook, “Camas fans!!!!! Worst in the league!!!! I hope someone shoots up their school really soon!!!!!!!!!!” The police stated his actions did not reach the level of criminal action, and he is not being charged.
  • Baltimore, Maryland- A fifteen year old male posted a threat on Twitter indicating an individual was threatening to do harm at Forest Park High School. Police searched his home and stated the threat was unfounded; he is not being charged.

Incidents similar to these news stories are occurring weekly, if not daily. Reading about these events brings up questions regarding the posting of threats on social media.

Where exactly is the line drawn for what one can and cannot post on social media sites? There could be a significant difference in consequences resulting from posts expressing a very strong opinion versus posts inciting crimes or containing fighting words.

Which threats are to be taken seriously? A standard protocol to evacuate and close schools may be abused by students (or possibly parents and teachers as well).

Does every threat made warrant an investigation? In the past, previous reported threats could have possibly been classified as hearsay, or a case of “he said, she said”. With threats posted on social media, there is definitive permanent proof a threat was made.

What should be the punishment for posting malicious remarks on social media? Should the same charges be brought against a known terrorist making threats on sites versus the student of a high school making threats on sites?

The overnight fame of having one’s name plastered across news and TV headlines could be a reason behind the public intimidation. Is the large audience and spread of social media a motivating factor to those making threatening posts?

The answers to these questions are important not only for protective agencies and internet service providers to consider, but for the common social media user to evaluate as well.

With so many new exciting advances in social media and technology, I did not expect online threats to be so predominant. Unfortunately, I cannot say I am surprised. I feel, as with any sort of technology and Internet connectivity, users should be educated and informed about how to use them appropriately and what the repercussions could be for misuse.

I hope that we, as a forensics community, can do our best to keep others safe and warn them about the possible consequences of their online actions.

About Katherine Helenek:

Katherine HelenekKatherine Helenek holds a Master’s of Forensic Science specializing in Digital Forensics, Forensic Chemistry, and Crime Scene Investigation from Marshall University. She is an AccessData Certified Examiner (ACE) and a member of the American Academy of Forensic Sciences (AAFS). She is now a Forensic Examiner with Digital Intelligence. Katherine is co-author of Social Media Investigation for Law Enforcement by Anderson Publishing. 



Associated Press. (2013, February 9). UK authorities charge man after Facebook posting threatening to kill 200 people in Tennessee. The Washington Post. Retrieved February 20, 2013, from

Bill of Rights Transcript Text. (n.d.). National Archives and Records Administration. Retrieved February 20, 2013, from

Green, E. L. (2013, January 24). Canadian ‘Mounties’ alert Baltimore to school threat. The Baltimore Sun. Retrieved February 20, 2013, from

KGW Staff. (2013, January 24). Man apologizes over Camas Facebook threat. NewsChannel 8. Retrieved February 20, 2013, from

Molloy, M. (2013, February 9). Metro. Brit charged over threats to kill 200 US students in gun rampage. Retrieved February 20, 2013, from

Van Camp, J. C. (2005, July 4). Freedom of Expression: The First Amendment. Freedom of Expression at the National Endowment for the Arts. Retrieved February 20, 2013

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  • Good post. Years ago I remember an early investigator observe that computer crimes should be looked at as “old wine in a new bottle,” meaning that behavior that uses technology to commit a crime does not change the fact that a crime was committed. We can investigate, prosecute and adjudicate cases if we look at the underlining activity and not get diverted by the fact it was done via a computer or the Internet. This doesn’t mean we forget about the technology component. It just means we have to look at the statute and case law to see how the behavior may be criminal. The use of technology may pose a challenge or an opportunity for the investigator.

    In social media and First Amendment rights may seem daunting at first. However, we can look to prior cases for guidance. Watts v. United States, 394 US 705 – Supreme Court 1969, Watts conviction for making threats against the President during a political rally was overturned because the court did not believe his treats were a “true threat.” They agreed with his position that his statements were …“a kind of very crude offensive method of stating a political opposition to the President.” … The Court noted taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.” Okay what does this case have to do with posts on social media?…. Well the 6th Circuit cited this case in US v. Baker, 890 F. Supp. 1375 – Dist. Court, ED Michigan 1995, in coming to its decision regarding a violation of 18 U.S.C. § 875(c), which prohibits interstate communications containing threats to kidnap or injure another person.

    In the 6th Circuit case, Baker had posted a number of fictional stories to “,” a popular interactive Usenet news group. One of his stories described the torture, rape, and murder of a young woman who shared the name of one of Baker’s classmates at the University of Michigan. The 6th Circuit noted held…. “that, to constitute “a communication containing a threat” under Section 875(c), a communication must be such that a reasonable person (1) would take the statement as a serious expression of an intention to inflict bodily harm (the mens rea), and (2) would perceive such expression as being communicated to effect some change or achieve some goal through intimidation (the actus reus).

    These legal rationales can be applied to posts on social media. Is the post a “true threat”? , to a reasonable person…. ie. a serious expression of an intention to inflict bodily harm and would a reasonable person perceive such expression to effect some change or achieve some goal as a result.

    I think looking at situations can help law enforcement decide if the post is protected speak or a something that warrants an investigation. For helping citizen understand what is okay to post and not post I think we need to have more education, starting with young people. This is particularly the case with juvenile sexting, which can easily have a social media component.

    Art Bowker, co-author of Investigating Internet Crimes, 1st Edition
    An Introduction to Solving Crimes in Cyberspace

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