Matthew Townsend was asleep when the police came knocking one night last March.
The pounding on the door was startlingly loud, but Townsend recalled thinking maybe his brother had forgotten his keys. As he emerged from his bedroom, he saw numerous police officers through the front windows.
“My biggest fear in that moment was for my dogs,” said Townsend, who remembers locking his two dogs in other rooms before opening the front door.
Townsend was arrested that night and booked into the Ada County Jail, where he was held on $25,000 bond for a few hours until a family member could bail him out. He was charged with felony witness intimidation for posting comments on Facebook that prosecutors said threatened a police officer who arrested Townsend on a misdemeanor a couple of months earlier.
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Townsend’s cases were closed last week. The prosecutor’s office dismissed the felony charge in exchange for his guilty plea to the misdemeanor.
By doing that, Townsend avoided a trial and the possibility of up to five years in prison and a $50,000 fine. But he’s left to wonder if speaking his mind online is going to land him in hot water again — a misstep during his two-year probation could mean half a year in jail.
“I don’t feel like my First Amendment rights are being protected,” said the 30-year-old Idaho native, who has strong opinions on a number of issues and, until now, hasn’t been shy about sharing them. “I don’t feel like I can really express myself.”
How worried should the public be about saying something on social media that could send our lives into a tailspin — and land us behind bars?
First Amendment protections on speech are the same online as they are offline, legal experts say.
“Just general ranting and raving and being a jackass on the Internet isn’t going to get you in trouble,” said Grant Loebs, longtime prosecutor in Twin Falls County. “But if you target with threats someone who is a potential witness in a criminal or civil case, it will.”
Social media offer many places for expression — and these online outlets have a much greater reach, immediacy and permanency than other forms of communication. There’s also a psychological distance that leads some to say things they might not say face-to-face or on the phone.
“The problems are the same as in older media, but there are more ways for the issues to come up,” said Robert “Bob” Corn-Revere, a First Amendment attorney in Washington, D.C., and former chief counsel for the Federal Communications Commission.
The First Amendment protects speech that is unpopular and/or offensive. Categories of speech that are not protected include defamation, incitement to crime, obscenity, child pornography and fighting words. These exceptions are narrowly defined, Corn-Revere said.
“There are high burdens,” he said. “The terms of unprotected speech have really narrowed over time.”
In a free society, you shouldn’t have to live in fear that you’re going to be prosecuted because of your words. We think of totalitarian states as places where you have to worry that you might offend some local official.
Bob Corn-Revere, First Amendment attorney
You can go way beyond “productive discourse” without committing a crime, Loebs said. For example, threats aren’t always a crime. But threatening to kill the president of the United States, a judge or other government officials is a crime.
“A threat, unless it’s coupled with action, there isn’t any law about that,” Loebs said. “It has to be coupled with the apparent ability to immediately accomplish the threat.”
Loebs doesn’t ever recall charging someone for a crime for comments they posted on social media.
“I have had people threaten people by using texts or emails, things like that. ‘I’ll kill you if you testify against me in this trial,’ ” he said. “I have charged people with witness intimidation.”
That charge exists to preserve the legitimacy of the court process.
“If you can stop people from testifying against you by threatening them, then the whole legal process becomes corrupted,” Loebs said.
In 2013, lawmakers in Indiana extended the charge of intimidation to include threats posted on social media. Officials at the National Conference of State Legislatures aren’t sure how common that is but they said most states, including Idaho, have enacted “cyberstalking” or “cyberharassment” statutes.
INTENT IS KEY
Last year, the Supreme Court took up the case of a Pennsylvania man who was convicted by federal jury in 2011 of threatening violence against his estranged wife, an FBI agent and a kindergarten class. Anthony Elonis was sentenced to 44 months in prison.
The 3rd Circuit Court of Appeals upheld the convinction of Elonis. His alleged threats were in the form of rap lyrics on Facebook and other social media.
Federal law says it’s a crime to transmit in interstate commerce “any communication containing … any threat to injure the person of another.”
Elonis’ posts, which he claimed were therapeutic, included: “There’s only one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”
Some crime victim advocacy groups were unhappy with the Supreme Court’s decision because it is expected to make prosecutions more difficult. But the American Civil Liberties Union lauded it.
“(The law) for centuries required the government to prove criminal intent before putting someone in jail. That principal is especially important when a prosecution is based on a defendant’s words,” Steven R. Shapiro, legal director for the ACLU, told The Washington Post.
“The Internet does not change this long-standing rule,” Shapiro said.
Matthew Townsend’s March 18, 2015, Facebook post
Tomorrow, I go to pretrial at the Ada County Courthouse to claim that my charge of “resisting or obstructing” a supposed jaywalking investigation after Meridian Police Department - Idaho officer RICHARD BROCKBANK refused to charge me after I demanded that he charge me for the “crime” that he supposedly stopped me for, is terroristic in nature and in other ways unconstitutional or criminal.
The cop refused to charge me for said “crime” that he was accusing me of and so I walked away ... and was soon after kidnapped and hauled away by several costumed State goons for my disrespect of officer Brockbank’s harassment towards me.
I’m hoping that the REAL reason I was harassed to begin with will be released by the State rather than I ... we shall see. ;)
If my case isn’t dismissed tomorrow upon my request, I will begin a non-violent and legal shame campaign that will be remembered. HOA “upsets,” protests in the aggressors neighborhoods (I know where you all live- this is notification of knowledge and future protests, not a threat), mailers, door hangers, online ads, local and (hopefully) national media- I’ve done it before and I can do it again as well as other peaceful, but ... annoying avenues will commence.
The State has 3 options:
1.) Drop charges and leave me alone
2.) Endure my non-violent retaliation (do you want to be the focus of my rage?)
3.) Kill me and deal with those that know, love and care about me.
Make your choice.
(This post included tags of Brockbank, his family members, local media and Meridian officials.)