When Can a Tweet Lead to Criminal Prosecution?

In Spain, Alba González Camacho was recently convicted of inciting terrorism. While such allegations are far from rare in today’s world, her modus operandi—social media.

As reported in The New York Times, prosecutors contend that Camacho’s Twitter posts, which called on the disbanded terror group Grapo to kill several Spanish politicians, crossed the free speech line into illegal behavior. Prosecutors argued specifically that the “messages [contained] an ideological content that was highly radicalized and violent” and, hence, violated a provision of the Spanish Constitution that prohibits any apology for or glorification of terrorism. Camacho, 21, was sentenced to one year in prison, but will not serve jail time under the terms of a plea agreement.

While many Americans may think that something like this could not happen in the United States, it already has. An Alabama man is currently in jail for threatening to kill President Barak Obama via Twitter. His tweets included: “Free speech? Really? Let’s test this! Let’s kill the president”; “I’m going to finish this, if they get me, they get me! #ohwell”; I” think we could get the president with cyanide. #MakeItSlow”; and “Barack Obama, I wish you were DEAD!”

In 2013, Jarvis M. Britton, 26, pleaded guilty to violating a federal law that makes it a felony to knowingly and willfully convey a communication making “any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States.” Unlike other statutes criminalizing threatening behavior, prosecutors do not have to prove that defendant intended to carry out the threats under this Threats Against President statute. Several other social media users face similar prosecution.

These cases highlight the tension between freedom of expression and public safety. While the First Amendment guarantees our right to free speech, true threats fall outside Constitutional protection. Determining whether a threat is legitimate or simply political discontent is left up to the courts. Unfortunately, the U.S. Supreme Court has offered limited guidance regarding when speech crosses the line from protected speech into unprotected threats.

Determining whether social media rants amount to legitimate threats adds yet another layer to this complex area of law. While Twitter provides a platform for users to speak their mind, 140 characters or less could also land you in a courtroom, or worse – jail.

If you have any questions about these cases or would like to discuss the issues involved, please contact me, Fernando Pinguelo, or the Scarinci Hollenbeck attorney with whom you work. To learn more about data privacy and security, visit eWhiteHouseWatch and Cyber Jurist.