By Rose Hernandez
A New Jersey man was extradited earlier this week to Florida after making an online threat to kill Volusia County Sheriff, Mike Chitwood…
The First Amendment of the U.S. Constitution provides, “Congress shall make no law…abridging the freedom of speech.” The right to free speech is also guaranteed by the Florida Constitution, which provides, “[e]very person may speak, write, and publish sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech.” Art. I, § 4, Fla. Const.
However, not all speech is protected speech. Written threats to kill or injure a person are not protected by the state or federal Constitutions. Section 836.10(2), Florida Statutes, provides “[i]t is unlawful for any person to send, post, or transmit . . . a writing or other record, including an electronic record, in any manner in which it may be viewed by another person, when in such writing or record the person makes a threat to kill or to do bodily harm to another person.” The offense of Written or Electronic Threats to Kill is a second-degree felony, which is punishable by up to 15 years in prison.
To prove the offense of Written or Electronic Threat to Kill, the State must prove the following three elements beyond a reasonable doubt:
1. The Defendant made a threat to kill in a writing or other record;
2. The Defendant sent, posted, or transmitted that writing or other record; and
3. The Defendant did so in any manner in which it may be viewed by another person.
The constitutionality of Section 836.10, Florida Statutes, has been upheld by many courts, but there is no question the statute may raise First Amendment concerns depending on the circumstances. In N.D. v. State, 315 So. 3d 102 (Fla. 3d DCA 2020), the Third District Court of Appeal upheld the constitutionality of the statute but warned against its misuse. In that case, a juvenile sent an Instagram message directly to a police officer threatening to blow up the officer’s police department. The juvenile argued Section 836.10, Florida Statutes, violated the right to free speech. Although the Court disagreed with the juvenile, the court indicated “courts must exercise caution in distinguishing true threats from crude hyperbole.” Id. at 104.
Despite these First Amendment concerns, the Florida Legislature has amended Section 836.10, Florida Statutes, several times over the years, expanding its scope in an attempt to keep up with evolving methods of communication. The advent of the internet and social media prompted the most recent changes to Section 836.10, which resulted in litigation concerning the statute’s meaning. In 2016, in J.A.W. v. State, the Second District Court of Appeal held Section 836.10, Florida Statutes, did not criminalize written threats that had not been sent to the person being threatened or a member of that person’s family. In that case, a juvenile posted on Twitter that he was going to “shoot up” his school. There was no evidence that any of the juvenile’s followers were students or staff at his school or members of their families. The tweets were discovered by an out-of-state watchdog group, which reported the tweets to local law enforcement. Law enforcement then notified the school. The court held the plain language of Section 836.10 required a showing that the threat was sent directly to the potential victim or a member of that person’s family. However, in this case, the tweets were viewed by an out-of-state watchdog group, who relayed the tweets to law enforcement, who then relayed the tweets to the potential victims. Absent a showing that the threats were received directly by students, staff, or their family members, the juvenile’s tweet did not amount to a violation of Section 836.10, Florida Statutes.
However, due to the holding in J.A.W.S. v. State, the Florida Legislature amended Section 836.10, eliminating the requirement that the threat be sent directly to the potential victim or a member of that person’s family. Now, Section 836.10 may be invoked by the mere act of posting the threat to social media. In Puy v. State, 294 So. 3d 930 (Fla. 4th DCA 2020), the defendant posted on Snapchat a photo of himself with the caption “On my way! School shooter.” A student at the defendant’s former high school saw the Snapchat posted to the defendant’s Snapchat account and showed it to a teacher. Then, law enforcement got involved. The court held the Snapchat message constituted a threat, and the mere fact that the threat was not sent directly to a potential victim or to a member of that person’s family did not preclude prosecution under Section 836.10.
In this case, Suspect Golden is accused of participating in a chat on the online platform 4Chan. In the chat, Suspect Golden allegedly wrote several threatening messages, including, “just shoot Chitwood in the head and he stops being a problem,” and “just shoot Chitwood in the head and murder him.” At the time, Suspect Golden lived at home with his mother in Monmouth Junction, New Jersey. Like the defendant in Puy v. State, Suspect Golden posted these messages on an online platform. However, there is a glaring distinction between this case and Puy. In Puy, the Defendant posted threats to shoot up his former school on his Snapchat account. The Snapchat post was viewed by one of his followers on the platform, who also happened to be a student at the former school. The student alerted a teacher, who alerted law enforcement. However, in this case, Suspect Golden, a New Jersey resident, posted the messages to a 4Chan chatroom. There was no indication that Sheriff Mike Chitwood, a member of his family, or a member of the Volusia County Sheriff’s Office were also participating in the chatroom or following Suspect Golden on the platform. None of these people were aware of Suspect Golden’s messages until they were notified by local law enforcement. In fact, local law enforcement was unaware of the messages until they were notified by out-of-county and out-of-state agencies. Given these factual distinctions, Suspect Golden may want to move for dismissal of the charges. Even if the court disagrees with Suspect Golden and denies the motion, Suspect Golden may still have a good basis for appeal.
Arguing that Suspect Golden’s actions do not amount to a crime is one potential defense but arguing that Florida lacks jurisdiction to preside over this matter at all may be a stronger one. In State v. Wise, 664 So. 2d 1028 (Fla. 2d DCA 1995), the Second District Court of Appeal held the venue of prosecution for making written threats is proper in either the county in which the threats were written and sent, or in the county in which the threats were received. In that case, the defendant was charged in Pinellas County, Florida, for writing letters from a detention facility in Polk County, Florida. The letters were received by the intended recipient in Pinellas County. The court held the venue of prosecution was proper because the written threats were received in Pinellas County. However, in this case, Suspect Golden allegedly wrote and sent the messages from his home in Monmouth Junction, New Jersey, and there is no indication the messages were received or viewed by anyone in Volusia County, Florida, until after out-of-state and out-of-county law enforcement agencies got involved. Wise was decided before the recent amendments to Section 836.10 that eliminated the requirement that the messages be sent directly to the potential victim or a family member, so it would be interesting to see how the recent amendments affect the issue of venue.
If you or a family member find yourself charged with a crime, do not hesitate to contact the experienced lawyers of The Smith and Eulo law firm at 352-WIN-4YOU. for your FREE consultation.