Facebook Posts Qualified as Illegal Contacts Under Anti-Stalking, Witness-Tampering Laws

By Lance J. Rogers

Feb. 13— A man who posted intimidating comments about a woman on his Facebook page “contacted” the victim for purposes of a stalking prosecution, even though she took the affirmative step of searching for and reading his posts, the New Hampshire Supreme Court ruled Feb. 12.

“To construe the statute as not encompassing the defendant’s conduct—writing a message addressing the victim and posting it in a public forum, but not personally conveying the message to the victim—would add limiting language that the legislature did not include,” the court said in an opinion by Justice James P. Bassett.

‘Dear Kitty Kat.'

The victim worked as a bartender and waitress. After receiving a series of bizarre letters from one of her customers, Brian Craig, the victim obtained a restraining order barring Craig from returning to her workplace or otherwise contacting her.

Craig apparently thought he could circumvent the no contact rule so long as he addressed the victim through Facebook. The victim and Craig weren't Facebook friends.

Three days after the restraining order took effect, Craig posted: “Dear Kitty Kat: I just wanted to remind you that since you would have to choose to look at the things I say to you on Facebook, that means my butt is covered.”

According to the court, Craig also warned the victim that she would be responsible for any ensuing violence if she didn't tell the judge in an upcoming hearing that she was dropping the matter: 

Oh Schnookums! I forgot to mention … if you get me convicted of anything, I go to jail for a year, and everyone dies in the Apocalypse, and it will be all your fault. So, your options are to be all mine as of this Friday, or f**k off forever… . No, I want the order removed before Friday now. Or I will have you held accountable . . . . You go tell the judge that you were mistaken, and you’d like it removed. . . . . You’re a s**t! [S]o shut up and do as I say.

Craig was convicted of criminal threatening, witness tampering and stalking.

Dispute Over Meaning of ‘Contact.'

On appeal, Craig didn't dispute that he made the posts after he was served with the domestic violence restraining order, but he argued that he didn't make contact with or communicate with the victim as those terms are understood in the statutes. The victim, he argued, contacted him by searching for and reading his Facebook posts.

The court rejected this distinction and affirmed the tampering and stalking convictions. For one thing, the statutes in question allow for convictions when the barred contact occurs indirectly, the court said.

Moreover, Craig did more than simply craft a message that the victim happened to stumble across, it said.

“By posting messages addressing the victim on his public Facebook page, and directing the victim's attention to his page, the defendant both created a message and took steps to convey it to the victim,” the court said.

Craig didn't appeal his criminal threatening conviction.

Same as Shouting on Street Corner 

According to the court, several of Craig's posts revealed that he was aware that the victim was reading his Facebook page. Indeed, most of the posts were filled with details that would have been meaningless to any reader other than the victim, it added.

“We discern no meaningful difference between the defendant posting messages on Facebook with both the purpose and effect of communicating a message to her, and the defendant positioning himself on a street corner with the knowledge and expectation that the victim would pass by, and then shouting to her,” the court said.

It rejected the notion that the victim put herself in this position by “voluntarily” seeking out Craig's posts.

The victim became alarmed by the defendant’s Facebook references in his letter, the court said, and was urged by her mother to read those posts. The court said that “it strains credulity to expect that the victim—or any person in her position—would refrain from ensuring her own safety by searching for and reading the defendant’s public Facebook page.”

Guidance From Other States 

The court said that its ruling was consistent with decisions in Florida and Connecticut.

In O'Leary v. State, 109 So. 3d 874 (Fla. Dist. Ct. App. 2013), the court ruled that a man who posted a threat on Facebook sent the message to the victim for purposes of the state's written threat law as soon as a family member saw it and passed it on.

“When a person composes a statement of thought, and then displays the composition in such a way that someone else can see it, that person has completed the first step in” sending a message, the court said, quoting O'Leary.

The New Hampshire court also found guidance in Rios v. Fergusan, 978 A.2d 592 (Conn. Sup. Ct. 2008), where the court concluded that a graphic threat posted in a YouTube video qualified as a tort, even though it wasn't technically sent anywhere in particular because the content of the video revealed that the defendant in that case was purposely targeting his ex-girlfriend.

Natch Greyes, of the New Hampshire Department of Justice, Concord, N.H., represented the state. Christopher M. Johnson, of the Appellate Defender's Office, Concord, represented Craig.

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

First Amendment Issue Left Unaddressed

 The New Hampshire court didn't address the First Amendment implications of prosecuting someone for his online posts.

The U.S. Supreme Court heard arguments in December on the question of whether the First Amendment protects speakers who make provocative Facebook posts but don't subjectively intend to instill fear or trepidation in the target of the rant (Elonis v. United States, No. 13-983 (U.S. argued Dec. 1, 2014).