Social media continues to straddle the First Amendment, and a New Jersey Appellate Court upheld that it can ban certain Facebook postings.
The Court rejected a woman’s claim that a probation order limited her First and Fourteenth Amendment because of how narrowly defined the restriction is.
HLM, a bipolar woman who kidnapped her two children after divorcing her husband in 2011, wrote bizarre Facebook blogs about her children and ex husband while alluding to the end of the world, Hitler, serial killer Jeffrey Dahmer and Satan. Despite the worry that this would entirely infringe on this unnamed woman’s freedom of speech online, the initially ruling reads at
[t]he judge clarified the blogging restriction, stating, “[a]ny blogging shall not reference [J.M. – her ex husband ] or the children. You can talk about what you want to talk about, but don’t reference [J.M.] or the children. That’s off limits.”
She attempted to route that by referring to her family as “Camelot” as a code word, which the court also said violated her probation.
HLM, whose full name was withheld by the court to protect her and her family’s identity, lost because she attempted to claim that the terms of probation were vague.
Courts limiting criminals’ access to social media isn’t entirely unusual and neither is having these attempts overturned. North Carolina wanted to entirely ban sex offenders from social media before an appellate court rejected it for being too broad.
The Court’s opinion doesn’t include HLM’s full posts, but calls them “disturbing” and potentially harmful to her children. Depending on what HLM was writing, her posts wouldn’t have been afforded First Amendment protection. Communications lawyer Travis Crabtree explains in the eMedia Law Insider that in most situations
[R]ants are protected by the First Amendment, but threats of imminent harm or immediate calls to illegal actions are not. … The oversimplification is that if a reasonable person would believe the speaker has an intent to cause actual harm, then it can become a threat and not mere protected speech.
Constitutional issues aside, the social media restriction was imposed to help HLM “lead a law-abiding life.” It also makes common sense from a family law perspective. Social media posts can be dragged into family court proceedings and more often than not, they don’t help the poster. One New York woman lost custody over her son after repeatedly insulting him on Facebook.
The kidnapping was HLM’s second custody violation, and if she ever tried to make a legitimate claim for her children, her Facebook ramblings won’t help.
But does is the court’s ruling a slippery slope for the free speech rights of the average Facebook user? The simple answer is no.