Threatening to post sex tape on Facebook is not a crime, court rules

A man handed six years for threatening a local Georgia court clerk that he would post a sex tape of her on Facebook had his conviction overturned by the state's Supreme Court. The justices ruled Monday that the Facebook postings did not constitute criminality or a "true threat" under the law, because the defendant did not express an "intent to commit an act of unlawful violence."

The case concerns a Georgia landlord named Lister Harrell who took to Facebook in 2013 and threatened a Dodge County court clerk that he would release a sex tape of her if, among other things, a bench warrant wasn't lifted over his failure to appear in court regarding alleged landlord violations. There was no sex tape, so the state's high court said that the post—along with a phone call to another clerk—may have been intimidating and embarrassing, but it did not threaten actual violence. "While Harrell's speech might well be described as caustic and unpleasant it did not convey 'a serious expression of an intent to commit an act of unlawful violence,'" the court ruled (PDF).

Man gets retrial to decide if posts were made with "subjective intent to threaten."

The case comes amid a hodgepodge of nationwide court rulings on the topic as prosecutions for online rants—on Facebook to YouTube—are becoming commonplace. A divided US Supreme Court weighed in on the topic in June in a case concerning a federal threats statute. In that case, the justices said that the conviction of a Pennsylvania man named Anthony Elonis over alleged Facebook threats against an elementary school and estranged wife should be overturned.

"The jury was instructed that the Government need prove only that a reasonable person would regard Elonis's communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant's mental state," Chief Justice John Roberts wrote (PDF) for the majority.

The Georgia landlord's attorney, Thomas Jarriel, applauded the decision, noting that "in this country, you can say a lot things."

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