SEATTLE — A Washington man who posted Facebook comments threatening a former Ferguson, Missouri, police officer will avoid prison but has been ordered to stay off social media sites in a case that is part of a broader legal debate about when social media rants go beyond hyperbole and become a crime.
Before U.S. District Judge Robert Lasnik handed down Jaleel Abdul-Jabbaar’s sentence Thursday, he said it was one of the hardest he has had to decide. He noted that in a separate case — the recent killings of two New York police officers — the gunman posted Facebook threats before shooting the officers.
But Judge Lasnik accepted the defense argument that Abdul-Jabbaar’s comments were simply a strong reaction to the unfolding events in Ferguson, and he had no intention of following through on his threat to shoot Darren Wilson.
Abdul-Jabbaar told the judge he made a mistake, “and it won’t be repeated.”
The judge agreed that the two months Abdul-Jabbaar already spent behind bars was enough and ordered three years of supervised release.
In arguing for government monitoring of Abdul-Jabbaar’s computer, Assistant U.S. Attorney Todd Greenberg said: “It’s OK to be frustrated, it’s OK to be angry about current events, and it’s OK to express that frustration. But our society cannot tolerate the type of violent threats the defendant made.”
Abdul-Jabbaar pleaded guilty Feb. 2 for posting a threat against Wilson on Facebook that included a call to “give back those bullets that Police Officer Darren Wilson fired into the body of Mike Brown.”
Federal prosecutors said Abdul-Jabbaar posted inflammatory messages for months after the Aug. 9 killing of Brown sparked protests nationwide. Assistant Federal Public Defender Kyana Givens said each note was in response to the news of the day out of Ferguson.
The popularity of social media sites like Facebook and its users’ willingness to speak their minds have landed people in jail and left lawyers arguing over what constitutes a “true threat” — one not protected by the First Amendment — and what is simply an exercise of free speech.
“It’s definitely an area of law that is in a state of flux,” Judge Lasnik said.
The U.S. Supreme Court heard arguments in December on another Facebook threat case that legal experts say could answer some of those questions.
When Anthony Elonis’ wife left him, he vented on his Facebook page by posting violent threats against her in the form of rap lyrics. The justices are considering whether an “objective” standard should be used in these cases, meaning an average person would believe the writer intended to harm someone, or whether the threat was “subjective,” meaning he was just venting and didn’t intend to hurt anyone.
“Facebook ‘threats’ may be different because the person is not ‘sending them’ to the intended target; indeed, the target may find out from someone else,” said Loyola Law School Professor Marcy Strauss. “It also may depend on whether the ‘threat’ is written on the ‘victim’s’ wall, or whether it is posted on the speaker’s. Whether that is important may turn on the standard the Supreme Court adopts.”
U.S. Justice Department data shows the federal government has prosecuted many of these cases: 53 cases in 2012; 63 in 2013; and 53 cases in 2014.
Ayn Dietrich, an FBI spokeswoman in Seattle, said her agency often receives tips about social media posts, but this is the only case it has seen that focused on Ferguson.
“In general, when the FBI becomes aware of publicly posted messages online, the FBI has the authority to conduct an investigation when it has reasonable grounds to believe that an individual has engaged in criminal activity or is planning to do so,” she said. “This authority is based on the illegal activity, not on the individual’s political views, position, or any other beliefs.”
Another Seattle man, Mark Brian Verhul, received prison time last year for posting on Facebook a photograph and message that said: “This is the cop I am going to kill.” A Nevada man was indicted in January for posting threats on Facebook to kill a black police officer.
In the case the judge referred to, a Massachusetts man was arrested for posting “Put Wings On Pigs” on his Facebook page in December. The message was a repeat of the final remarks of the man who shot the two New York officers.