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Today’s Divorce Climate: Facebook or Bust! ‘Elonis’ or Freedom of Speech

Dear Carolyn:

My ex is posting all kinds of things about me on Facebook. She calls me names like bastard, devil, asshole, and you name it. She doesn’t even have privacy settings on her Facebook, so I fear that my (our) children who are ages 13 and 15 may somehow get access. She also said: “I hope to run my ex over with my car next time he comes for the children,” which I take as a threat. Can I stop this? I am filing a case for custody.

Carolyn Answers….

Facebook, Twitter, Snap chat and other social media have many, many great aspects. I personally use Facebook, BUT I would NEVER say anything negative about anyone on Facebook or any other social media. I would not say anything I would ever need to erase.  Facebook and social media negativity is the ruin of relationships and lawsuits.

If you are a litigant, you should not even remotely think about making a post about your case on Facebook or other social media. The North Carolina State Bar has advised attorneys to admonish clients not to post on social media regarding his/her case. Whatever you do, do not respond on Facebook to your ex’s Facebook posts. The problem is that many people do not have either the judgment or the control to know what is safe to post during litigation.    So if you are in litigation, unless you want to have your attorney read all of your posts, not posting at all is the safe thing to do. Having your attorney preview posts is EXPENSIVE.

Next, you need to preserve the evidence. There are at least three steps you need to take: First, a spoliation letter is in order.   Have your attorney immediately write to the opposing attorney a letter requesting that all evidence, particularly social media evidence, be preserved. The letter is typically called a “spoliation of evidence” letter, or in other words, don’t spoil the evidence. 2) Make copies of the posts, and give the copies to your attorney. You have these legally since there are no privacy settings on the Facebook page. If there were privacy settings, you should not use subterfuge in any way to obtain the information indirectly. With the privacy settings, a legitimate “friend” of your ex can provide the copies of the Facebook page or you can get the Facebook pages through a Request for Production of Documents. 3) I would also check other social media, such as Twitter. You may find more evidence.

Consider a 50B if you are physically frightened of her. The threat is there. A 50B is a domestic violence protective order. You can go to the Family Justice Center at 201 South Greene Street, Greensboro for help with the 50B. The phone number for the Family Justice Center is 336-641-7233.

“I hope to run my ex over with my car next time he comes for the children.” Is this the criminal act of communicating a threat? The United States Supreme Court recently reviewed the issue of threats on Facebook in Elonis v. United States. The criminal statute the Supreme Court examined was a Pennsylvania statute on communicating threats. Facebook was not a party to the case.

Mr. Elonis made alleged threats against his ex-wife. The alleged threat: “There’s 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.” His defense was that he was merely writing rap lyrics. Personally, I do not buy his argument, and this seems like a threat to me. The U.S. Supreme Court, however, threw out the conviction. Chief Justice Roberts, writing for the majority, opined that it doesn’t matter if a reasonable person would feel threatened,   Roberts said that the Pennsylvania court had to determine if Elonis actually intended to kill her and do all of these gross things to his ex. The court did not reach the issue of whether Mr. Elonis had the right under the First Amendment Freedom of Speech to say these things on Facebook.

Justice Clarence Thomas disagreed with the majority and thought the Facebook statements were “true threats”. While I do not generally agree with Justice Thomas, I do on this occasion.