Social media has redefined the ways in which we interact with others. With a simple click of a button, a message can reach the masses. Social media has given users a forum for self-expression on levels that have been unimaginable in the past. Yet, the advent of social media has also blurred the lines between free speech and crime. The debate about this grey area is just starting to take place in courts across the country.
Just this week, the Supreme Court heard oral arguments on when lyrics posted on Facebook become criminal. The defendant, Anthony Elonis, was an aspiring musician who began posting lyrics on Facebook expressing frustration over a recent estrangement from his wife. Lyrics posted to his account included “I’m not going to rest until your body is a mess,” and “enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined. And hell hath no fury like a crazy man in a kindergarten class.” His attorneys claimed the posts where meant to be therapeutic allowing the defendant to express his anguish over the breakdown of his marriage. Authorities in Pennsylvania disagreed. The defendant was charged under a federal law with threatening individuals across interstate lines and sentenced to 4 years in prison. The Supreme Court’s decision on what is considered self-expression and what is a crime on social media is sure to have far reaching consequences.
In San Diego, rapper Brandon Duncan who performs under the name Tiny Doo is facing a sentence of 25 years to life for a string of shootings in the neighborhood where he grew up and often mentions in his lyrics. Prosecutors are not alleging Duncan participated in the shooting or supplied the guns used by the gang members. In fact, no one is alleging he even knew about the shootings in the Lincoln Park gang’s latest turf wars. Instead, prosecutors are alleging that Duncan is a gang member who “willfully promotes, furthers, or assists in [the] felonious criminal conduct by members of that gang.” So what exactly did Duncan do, according to prosecutors, to promote gang activity? He released an album.
The album titled “No Safety” features a revolver and bullets on the cover and belongs to a genre commonly referred to as “gangsta rap.” Prosecutors argue his music combined with pictures posted on his Facebook account showing Duncan with known gang members are sufficient evidence that he was part of a gang conspiracy to carry out the shootings. In a regular conspiracy case, prosecutors must prove both knowledge and agreement on the part of the defendant. California’s Proposition 21 passed in 2000 got rid of the knowledge and agreement requirements and simply states that anyone who “promotes, furthers, assists, or benefits” criminal gang activity is guilty of conspiracy.
What can users of social media take away from these cases? While the law around social media is constantly evolving, the consequences for posting on a social media site are real. And California is not alone. An aspiring rap artist could face a similar problem in Ohio. Under Ohio law, an individual who “actively participates in a gang” can be charged with criminal conduct committed by other members of the gang if they “purposely promote, further or assist” in the conduct. Ohio Revised Code § 2923.42. Ohio courts have turned to California for guidance in interpreting “purposely promote, further, or assist” and have concluded that the language of the statute is virtually synonymous with the definition of an aider or abettor of a crime. This means an individual who posts on social media may find themselves liable for a crime they did not even know had been committed.