March 5, 2012
The worst consequence such a poster usually faces is a comment or private message from another Friend disagreeing with the rant in some way.
An Ohio man wasn’t so lucky.
Mark Byron was recently found in contempt of a court order restraining Byron from causing his wife (with whom he was currently involved in divorce proceedings) “to suffer physical and/or mental abuse, harassment, annoyance, or bodily injury.”
This Reuters piece on the story contains the full Facebook post by Byron which a magistrate found to cause his wife “mental abuse, harassment or annoyance.”
Apart from the train wreck of human drama that accompanies most family law cases, there are a lot of major legal issues in this ruling.
First, what’s particularly interesting to note is that his wife was not Byron’s Friend on Facebook at the time, nor was she mentioned by name in the post (though it was abundantly clear to his friends of whom he was speaking).
Thus, it’s very unlikely that Byron’s wife would have been aware of the harassment unless she was somehow monitoring what Byron was saying on Facebook.
Byron’s post wasn’t the private venting to his friends about his troubles that he thought it was.
Instead, the magistrate seems to have found that posting something on your Facebook page is analogous to posting a statement publicly (i.e. in the newspaper).
Fair enough, I suppose.
This issue is fairly insignificant compared to some others involved, however.
Namely, the ones linked to Byron’s punishment.
What was Byron’s penalty, you ask?
In addition to covering his wife’s attorney fees of $1,156.25, Byron was ordered to post to his Facebook page a long-winded apology directed by the court every day for 30 days (or he would go to jail for 60 days).
Although a court ordering an apology with these kinds of harassment orders is nothing new, the full circumstances surrounding this order upgrade it from being “maybe unconstitutional” to “definitely unconstitutional.”
First, the apology wasn’t ordered to be privately directed to Byron’s wife.
It was ordered to be repeatedly published on Byron’s Facebook page, more publicly than Byron’s initial post that started it all.
Next, the ordered apology isn’t just a simple one for Byron’s earlier comments.
It’s almost 200 words long, and among other things, compels Byron to disclose details about the legal proceedings and findings against him (you can check out Byron’s Facebook page or the order itself for the full text).
Free speech advocates across the nation are incensed by this, since it is a textbook government compulsion of speech prohibited by the First Amendment and the Supreme Court’s 1995 decision Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston.
Byron has stated that he plans to appeal the order, but he has no choice for the time being but to continue the posts through March 13, the last of the 30 days, to avoid being jailed.
Though his appeal will likely succeed, it’s highly unlikely that the appeal will result in Facebook posts being viewed by courts as any less pervasive.
In fact, the current trend suggests just the opposite.
Thus, the only lesson we can really take away from this is something that any good lawyer should be already telling his or her clients constantly:
Be very careful about what you post on Facebook.